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A  TREATISE 


ON    THE    LAW    OF 


Landlord  and  Tenant 


By  HERBERT  THORNDIKE  TIFFANY 

I  ,■  1 
AUTHOR  OF    "THE  LAW   OF  riE-\L  PROPERTY;"    LECTURER    ON    REAL    PROPERTY 
IN    THE   UNIVERSITY  OF  MARYLAND 


IN  TWO  VOLUMES 


VOL.  II 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1912 


COPYRIGHT,   1910 

BY 

HERBEiiT  THOKNDIKE  TIFFANY 


T 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

THE  NATURE  OF  THB^ RELATION. 
(For  complete  analysis  see  Vol.  I.) 


CHAPTER  II. 

THE  CLASSES  OF  TENANCIES. 
(For  complete  analysis  see  Vol.  I.) 


CHAPTER  III. 

THE  CREATION  OF  THE  RBLATION-THB  LEASE  OR  DEMISE. 
(For  complete  analysis  see  Vol.  I.) 


CHAPTER  IV. 

^NANCY    IN    CON 
RELATION. 

(For  complete  analysis  see  Vol.  I.) 


THE  RELATION  OP  TENANCY  IN  CONNECTION  WITH  OTHER 

RELATION. 


iv  TABLE   OF   CONTENTS. 

CHAPTER  V. 

COVENANTS  AND  OTHER   CONTRACTS. 
(For  complete  analysis  see  Vol.  I.) 


CHAPTER  VI. 

EXECUTORY  CONTRACT   FOR  LEASE. 
(For  complete  analysis  see  Vol.  L) 


CHAPTER  VII. 

THE  TITLE  AND  POSSESSION  OP  THE  LESSOR. 
(For  complete  analysis  see  Vol.  I.) 


CHAPTER  VIII. 

COVENANTS  FOR  QUIET  ENJOYMENT  AND  OF  POWER  TO  DEMISE. 
(For  complete  analysis  see  Vol.  I.) 


CHAPTER  IX. 

THE  LESSOR'S  OBLIGATION  TO  GIVE  POSSESSION. 
(For  complete  analysis  see  Vol,  I.) 


TABLE   OF,   CONTENTS. 

CHAPTER  X. 

PHYSICAL  CONDITIONS— REPAIRS  AND  IMPROVEMENTS. 
(For  complete  analysis  see  Vol.  I.) 


CHAPTER  XI. 

MODE  OF  UTILIZATION  OF  PREMISES  BY  TENANT. 
(For  complete  analysis  see  Vol.  I.) 


CHAPTER  XII. 

EASEMENTS  AND  ANALOGOUS  RIGHTS. 
(For  complete  analysis  see  Vol.  I.) 


CHAPTER  XIII. 

TAXES  AND  INSURANCE. 
(For  complete  analysis  see  Vol.  I.) 


CHAPTER  XIV. 

TRANSFER  OF   THE  REVERSION. 
(For  complete  analysis  see  Vol.  I.) 


vi  TABLE  OF  CONTENTS. 

CHAPTER  XV. 

TRANSFER  OF  THE  LEASEHOLD. 
(For  complete  analysis  see  Vol.  L) 


CHAPTER  XVI. 

RENT. 
(For  complete  analysis  see  Vol.  L) 


CHAPTER  XVII. 

EVICTION. 


§  184.     General  considerations. 
185.     By  landlord. 

a.  Actual  and  constructive  eviction. 

b.  Intention  of  landlord. 

c.  General  character  of  landlord's  acts. 

d.  Tenant  must  relinquish  possession. 

e.  Total  and  partial  eviction. 

f.  Specific  acts  by  landlord. 

(1)  Forcible  expulsion  or  exclusion. 

(2)  Interference  with  ingress  or  egress. 

(3)  Deprivation  of  rights  appurtenant   to  leasehold. 

(4)  Acts  of  omission. 

(5)  Occupation  by  landlord  on   tenant's  abandonment. 

(6)  Subsequent  lease  or  other  conveyance. 

(7)  Unauthorized   demand   for  possession. 

(8)  Injurious  conditions   on  adjoining  premises. 

(9)  Threats   and  annoyances  by  landlord. 

(10)  Interference  with   subtenant. 

(11)  Making   of   repairs. 

(12)  Withholding  of  license  for  business. 

g.  Tenant's  assent  to  landlord's  acts, 
h.    Effect  of  eviction  on  tenancy. 

i.    Action  for  damages. 


TABLE  OF  CONTENTS.  yii 


186.     By  third  person. 

a.  Under  title  paramount. 

(1)  Wliat  constitutes  title  paramount. 

(2)  Acts  constituting  eviction. 

(3)  Effect  of  eviction. 

b.  Wrongful  acts  of  third  persons. 

c.  Acts  of  public  authorities. 


CHAPTER  XVIII. 

SURRENDER. 

I  187.    Nature  of  surrender. 

188.  Parties  to  surrender. 

a.  Persons  who  may  make  surrender. 

b.  Persons  to  whom  surrender  may  be  made. 

189.  Express  surrender. 

a.  Necessity  of  writing. 

b.  By  cancellation  of  lease. 

c.  Necessity  of  seal. 

d.  Necessity  of  acceptance. 

e.  Words  of  surrender. 

f.  Transfer  of  possession. 

g.  Surrender  in  futuro. 

h.     Surrender  for  purpose  of  new  lease. 

190.  Surrender  by  operation  of  law. 

a.  General  nature. 

b.  Acceptance  of  new  interest. 

(1)  Acceptance  of  lease. 

(a)  The  general   doctrine. 

(b)  Intention  of  parties. 

(c)  What  constitutes  new  lease. 

(d)  New  lease  to  assignee  of  leasehold. 

(2)  Acceptance  of  different  class  of  interest. 

c.  Transfer  of  possession  to  landlord. 

(1)  The  general  doctrine. 

(2)  Resumption  by  landlord  of  possession  necessary. 

(3)  What  constitutes  resumption  of  possession. 

(4)  Reletting  by  landlord  to  another. 

(5)  Relinquishment  of  possession  on  landlord's  demand. 


viii  TABLE  OF  CONTENTS. 

d.     New  lease  to  third  person. 

§  191.     ESect  of  surrender. 

a.  As  between  the  parties. 

b.  As  against  third  persons. 


CHAPTER  XIX. 

FORFEITURE  OF  THE  LEASEHOLD. 

192.  By  disclaimer  of  tenancy. 

193.  Under  statute. 

a.  For  breach  of  stipulation  of  lease. 

b.  For  illegal  use  of  premises. 

c.  On  desertion  of  premises. 

d.  For  improper  use  of  premises. 

194.  Under  express  condition  subsequent. 

a.  General  considerations. 

b.  Condition  distinguished  from  covenant. 

c.  Condition   distinguished   from    limitation. 

d.  Forfeiture  dependent  on  landlord's  election. 

e.  Conditions  against  particular  acts. 

(1)  Nonpayment  of  rent. 

(2)  Nonpayment  of  taxes. 

(3)  Failure  to  repair, 

(4)  Assignment  and  subletting. 
'                  (5)  Bankruptcy. 

(6)  Use  and  care  of  the  premises. 

(7)  Abandonment  of  the  premises. 

f.  Demand  of  rent. 

(1)  Necessity  at  common  law. 

(2)  Statutory  modification  of  requirement. 

g.  By  whom  forfeiture  may  be  asserted. 

h.     Against  whom  forfeiture  may  be  asserted. 
i.     Waiver  of  right  to  assert  forfeiture. 

(1)     Recognition  of  tenancy  as  still  existent. 

(a)  General   considerations. 

(b)  Acceptance  of  rent. 

(c)  Assertion  of  claim  for  rent. 

(d)  Action  against  tenant. 

(e)  Notice  to  tenant. 

(f)  Language   recognizing   tenancy. 

(g)  Distress. 


TABLE  OF  CONTENTS.  ix 


(2)  Delay  in  assertion  of  forfeiture. 

(3)  Acts  inducing  breach  of  condition. 

(4)  Continuing  and  recurring  breaclies. 
j.     Assertion  and  enforcement  of  forfeiture. 

k.     Effect  of  enforcement  of  forfeiture. 
1.     Relief  against  forfeiture. 

(1)  General  rule. 

(2)  Fraud,  mistake,  accident  and  surprise. 

(3)  Nonpayment  of  money. 

(4)  Persons  in  favor  of  and  against  wtiom  relief  given. 


CHAPTER  XX. 

NOTICE  TO  QUIT. 
§  195.     General  '■onsiderations. 

196.  Particular  classes  of  tenancies. 

a.  Tenancy  for  years. 

b.  Tenancy  at  will. 

c.  Periodic  tenancies. 

d.  Tenancy  at  sufferance. 

197.  Waiver  or  modification  of  requirement. 

198.  By  and  to  wbom  notice  to  be  given. 

199.  Form  and  language  of  notice. 

200.  Date  of  termination  of  notice. 

201.  Computation  of  period  of  notice. 

202.  AVaiver  of  defects. 

203.  Service  of  notice. 

204.  Effect  of  giving  of  notice. 

205.  Withdrawal  or  waiver  of  notice. 


CHAPTER  XXI. 

HOLDING  OVER  BY  TENANT. 

5  206.     Duty  to  relinquish  possession. 

207.  What  constitutes  holding  over. 

208.  Rights  of  tenant  wrongfully  holding  over. 


TABLE  OF  CONTENTS. 


§  209.     Landlord's  option  as  to  new  tenancy. 

a.  The  rule   usually  adopted. 

b.  The  theory  of  the  rule. 

c.  Facts  justifying  exercise  of  option. 

d.  Facts   excluding  exercise    of   option. 

e.  Character  of  new  tenancy. 

210.  New  tenancy  by  agreement. 

a.  Agreement  express  or  implied. 

b.  Character  of  new  tenancy. 

c.  Terms  of  new  tenancy. 

211.  Liability  in  use  and  occupation. 

212.  Liability  as  tort  feasor. 

213.  Liability  for  double  rent  or  value. 

a.  After  notice  or  demand  by  landlord. 

b.  After  notice  by  tenant. 

214.  Cotenant  lessee  holding  over. 

215.  Proceeding  to    recover   possession. 

216.  Forcible   resumption  of   possession  by   landlord. 

a.  General    considerations. 

b.  Liability  for  entry  on  the  land. 

c.  Liability  for  injury  to  the  person. 

d.  Liability  for  removal   of  chattels. 

217.  Rights  of  landlord  after  resuming  possession. 


CHAPTER  XXII. 

STIPULATIONS  FOR  RENEWAL  OR  EXTENSION. 

§  218.  Renewal  and  extension  distinguished. 

219.  Additional  term  as  part  of  original  term. 

220.  Sufficiency  and  construction  of  stipulation  for  renewal. 

221.  Stipulations  for  perpetual  renewal. 

222.  Election  by  lessee  to  extend. 

a.  Retention  of  possession. 

b.  Requirement  of  express  notice. 

223.  Election  by  lessee  to  renew  — Notice  to  lessor. 

224.  Election  by  lessor. 

225.  Compliance  by  lessee  with  covenants  and  conditions. 


TABLE  OF  CONTENTS.  xi 


226.  Form  of  renewal. 

227.  Terms  of  new  tenancy  —Applicability  of  former  stipulations. 

228.  Appraisement  to  ascertain  rent. 

229.  Qualified  right  to  renewal  or  extension. 

230.  Persons  to  whom  stipulations  available. 

231.  Persons  against  whom  stipulations  available. 

232.  Covenant  by  sublessor  to  renew. 

233.  Breach  of  covenant  to  renew — Ptemedies. 

234.  Trusts  arising  from  renewal. 


CHAPTER  XXIII. 

FIXTURES. 

235.  General  considerations. 

236.  Physical  attachment. 

237.  Character  of  article. 

238.  Intention  of  the  annexor. 

239.  Specific  articles  aa  fixtures. 

240.  Removable  fixtures. 

a.  Trade  fixtures. 

b.  Domestic  and  ornamental  fixtures. 

c.  Agricultural  fixtures. 

241.  Removable  fixtures  as  realty  or  personalty. 

242.  Loss  of  tenant's  rights  of  removal. 

a.  End  of  term  or  relinquishment  of  possession. 

b.  Tenancy  of  uncertain  duration. 

c.  Surrender  or  merger  of  leasehold. 

d.  Forfeiture  of  leasehold. 

e.  Eviction  under  title  paramount. 

f.  Delay  in  removal  caused  or  acquiesced  in  by  landlord. 

g.  Acceptance  of  new  lease  by  tenant. 

243.     Stipulations  granting  rights  of  removal. 

a.  General  considerations. 

b.  Articles  annexed  with  landlord's  assent. 

c.  Effect  as  rendering  articles  personalty. 

d.  Validity  in  favor  of  and  as  against  third  persons. 

e.  Loss  of  benefit  of  stipulation— Time  for  removal. 


xii  TABLE  OF  CONTENTS. 

§  244.     Stipulations  restricting  rights  of  removal. 

a.  General  considerations. 

b.  Stipulations  as  to  "fixtures." 

c.  Stipulations   as  to   "improvements." 

d.  "Erections"  and  "additions." 

e.  "Alterations." 

f.  Stipulated  improvements  by  tenant. 
S-  Title  to  articles  during  term. 

245.  Custom  affecting  rights  of  removal. 

246.  Rights  of  removal  as  against  person  other  than  lessor. 

a.  Purchaser  subsequent  to  annexation. 

b.  Person  claiming  under  mortgage  subsf^quent  to  annexation, 

c.  Person  claiming  under  mortgage  prior  to  annexation. 

247.  Rights  of  removal  by  person  other  than  lessee. 

248.  Remedies, 


CHAPTER  XXIV. 

CROPS. 

249.  Tenant  entitled  to  crops  and  annual  fruits. 

250.  Stipulations  against  removal  of  crops. 

251.  The  doctrine  of  emblements. 

a.  Nature  of  the  right. 

b.  Things  -which  are  the  subject  of  the  right. 

c.  Classes  of  tenants  entitled. 

(1)  Life  tenants. 

(2)  Life  tenant's  lessee. 

(3)  Tenant  at  will. 

(4)  Tenant  for  years. 

(5)  Tenant  from  year  to  year. 

(6)  Tenant  at  sufferance. 

d.  Effect  of  forfeiture  by  tenant. 

252.  Tenant's  rights  as  against  prior  mortgage  or  paramount  title. 

253.  Agreements  for  the  division  of  crops. 

a.  General  considerations. 

b.  Tenancy  in  common  in  crops. 


TABLE  OF  CONTENTS.  xiil 


c.  Duties  as  regards  cultivation  and  harvesting. 

d.  Ascertainment  of  landlord's  share. 

e.  Delivery  of  landlord's  share. 

(1)  Mode  of  delivery. 

(2)  Time  of  delivery, 

f.  Transfer  of  undivided  share. 

g.  Rights  of  creditors. 

h.     Enforcement  of  rights  as  between  the  parties, 
i.    Actions  against  third  persons. 


CHAPTER  XXV. 

CHATTELS  ON  THE  PREMISES. 
§  254.     Lease  of  land  and  chattels. 
255.    Chattels  belonging  to  the  tenant. 

a.  Time  of  removal. 

b.  Failure  to  remove. 


CHAPTER  XXVI. 

OPTION  OF  PURCHASE  IN  TENANT. 

§  256.  Nature  and  validity  of  the  stipulation. 

257.  Option  as  interest  in  land. 

258.  Alternative  right  in  lessor, 

259.  Right  of  "refusal"  In  tenant. 

260.  Conditions  for  exercise  of  option. 

261.  Time  for  exercise  of  option. 

262.  Mode  of  exercise  of  option. 

263.  Payment  or  tender  of  price. 

264.  Exercise  as  to  part  of  premises. 

265.  Effect  of  exercise. 

266.  Sufficiency  of  conveyance. 

267.  Change  of  parties  to  the  tenancy. 

268.  Remedy  for  breach  of  stipulation. 

269.  Statutory  provisions. 


xiv  TABLE  OF  CONTENTS. 

CHAPTER  XXVII. 

PAYMENT  BY  LANDLORD  FOR  TENANT'S  IMPROVEMENTS. 

§  270.     In  absence  of  stipulation. 
271.     Stipulation  as  to  payment, 

a.  As  alternative  to  renewal. 

b.  As  dependent  on  sale  of  reversion. 

c.  Election  by  lessor. 

d.  Improvements  within  stipulation. 

e.  Effect  of  renewal  or  extension. 

f.  Effect  of  tenant's  breach  of  covenant. 

g.  Effect  of  forfeiture  of  leasehold. 
h.     Change  of  parties  to  tenancy. 

i.  Title  to  improvements. 

j.  Valuation  of  improvements. 

k.  Possession  of  premises  pending  payment. 

1.  Enforcement  of  payment — Lien. 


CHAPTER  XXVm. 

SUMMARY  PROCEEDINGS. 
I  272.     General  considerations. 
273.     By  and  against  whom  proceedings  maintainable. 

a.  By  landlord  against  tenant. 

(1)  Necessity  of  relation  of  tenancy. 

(2)  Character  of  tenancy. 

(3)  Validity  of  lease. 

b.  By  person  entitled  to  possession. 

c.  By  licensor  against  licensee. 

d.  By  vendor  against  purchaser. 

e.  By  grantee  against  grantor. 

f.  By  mortgagee  against  mortgagor. 

g.  By  foreclosure  purchaser  against  mortgagor, 
h.     By  joint  lessor  or  lessors. 

1.     By  personal  representative. 
j.     By  guardian. 
k.     By  receiver. 


TABLE  OF  CONTENTS.  XV 

1.     By  agent  or  attorney. 
m.    Effect  of  transfer  of  reversion. 
n.    Effect  of  subsequent  lease. 

o.    Against  persons   claiming  under   lessee — Assignees   and  sub- 
tenants. 
p.     Against  corporation. 

274.  Grounds  for  proceeding. 

a.  Holding  over  by  tenant. 

(1)  After  expiration  of  tenancy. 

(2)  After  surrender. 

(3)  Notice  to  quit  as  prerequisite. 

(a)  Distinguished  from  notice  terminating  ten- 

ancy. 

(b)  Statutory  requirements. 

(c)  Time  and  length  of  notice. 

(d)  Form  of  notice. 

(e)  Person  to  give  notice. 

(f)  Service  of  notice. 

(g)  Waiver  of  notice. 

b.  Breach  of  condition. 

c.  Illegal  use  of  premises. 

d.  Nonpayment  of  rent. 

(1)  Statutory  provisions.  < 

(2)  Applicability  of  the  statutes. 

(3)  Demand  for  rent  as  prerequisite. 

(4)  Notice  to  quit  as  prerequisite. 

(a)  Statutory  provisions. 

(b)  Form  of  notice. 

(c)  Person  to  give  notice. 

(d)  Waiver  of  requirement. 

(e)  Service  of  notice. 

(f)  Waiver  of  notice  given. 

(5)  Counterclaim  as  defense. 

(6)  Waiver  of  right  to  maintain  proceeding. 

(7)  Payment  or  tender  of  rent — Redemption. 

e.  Breach  of  express  stipulation  other  than  for  rent. 

f.  Assignment  or  subletting. 

g.  Bankruptcy. 

275.  Statutes  of  limitation. 

276.  Equitable  defenses. 

277.  Title  to  premises. 


xvi  TABLE  OF  CONTENTS. 

§  278.     Complaint,  petition  or  affidavit. 

a.  General  considerations. 

b.  Showing  as  to  tenancy. 

c.  Interest  of  petitioner. 

d.  Defendant's  possession. 

e.  Petitioner's  agency  for  landlord. 

f.  Designation  of  subtenants. 

g.  Description  of  premises. 

h.  Previous  demand  or  notice. 

i.  Right  to  possession. 

j.  Nonpayment  of  rent, 

k.  Amendment. 

279.  Answer  or  plea. 

280.  Summons  and  return. 

281.  Adjournment  of  the  proceeding. 

282.  Findings  of  fact 

283.  Judgment  or  order. 

a.  In  default  of  appearance. 

b.  For  rent  or  damages. 

284.  Appeal  and  certiorari. 

285.  Warrant  of  dispossession. 

286.  Conclusiveness  of  judgment. 

287.  Effect  of  proceeding  as  terminating  tenancy. 

288.  Injunction  against  proceeding. 

289.  Liability  for  wrongful  institution  of  proceeding. 


CHAPTER  XXIX. 

ACTIONS  FOR  RENT. 


§  290.     At  common  law. 

a.  Debt. 

b.  Covenant. 

c.  Assumpsit. 

d.  Account. 

291.  Under  the  code  procedure. 

292.  Proceedings  in  equity. 


TABLE  OF  CONTENTS.  xvii 


293.  Parties  plaintiff. 

a.  Persons  beneficially  interested. 

b.  Transferees. 

c.  Persons  jointly  entitled. 

d.  On  death  of  person  entitled. 

e.  Statutory  provisions. 

294.  Parties  defendant. 

a.  Joint  or  several  liability. 

b.  On  assignment  of  leasehold. 

c.  On  death  of  person  liable. 

d.  Persons  asserting  title. 

e.  Guarantors  and  sureties. 

295.  Pleading. 

296.  Set-off,  recoupment,  and  counterclaim. 

297.  Limitations. 

298.  No  prior  demand  necessary. 

200.    Joinder  of  causes  of  action  and  defenses. 

300.  Actions  for  successive  installments. 

301.  Stipulations  for  attorney's  fees. 


CHAPTER     XXX. 

ACTIONS  FOR  USE  AND  OCCUPATION. 

§  302.  Nature  and  history  of  the  action. 

303.  The  subject  of  the  use  and  occupation. 

304.  Necessity  of  relation  of  tenancy. 
30.5.  Tenancy  created  by  attornment. 

306.  Particular  classes  of  persons. 

a.  Person  entering  under  contract  for  lease. 

b.  Person  entering  under  contract  of  sa^e. 

c.  Person  retaining  possession  after  judicial  sale. 

d.  Tenant  holding  over. 

e.  Grantor  retaining  possession. 

307.  Liability  of  assignee. 

308.  Liability  of  executor  or  administrator. 

309.  Election  by  plaintiff  against  tenancy. 


xviii  TABLE  OF  CONrEM'S. 

§  310.  El'fect  of  existing  lease  to  a  stranger. 

311.  Persons  wlio  may  sue. 

312.  As  between  tenants  in  common. 

313.  In  case  of  lease  under  sea). 

314.  Necessity  of  actual  occupancy. 

315.  Rent  reserved  in  kind. 

316.  Pleading. 

317.  Evidence  and  presumptions. 

318.  Amount  of  recovery. 

a.  When  no  rent  reserved. 

b.  When  specific  rent  reserved. 

319.  Debt  for  use  and  occupation. 


CHAPTEP.  XXXI. 

LIENS  IN  FAVOR  OF  THE  LANDLORD. 
§  320.     Apart  from  statute  or  agreement. 
321.     Statutory  liens. 

a.  Creation  and  existence  of  the  tenancy. 

b.  The  nature  and  utilization  of  the  premises. 

c.  Obligations  secured. 

(1)  Rent. 

(a)  Rent  payable  in  kind. 

(b)  Rent  accrued  and  to  accrue. 

(c)  Other  indebtedness  asserted  as  rent. 

(2)  Advances  and  supplies. 

(3)  Stipulations  of  the  lease. 

d.  Things  subject  to  the  lien. 

(1)  General  considerations. 

(2)  Crops. 

(3)  Things  kept  or  used  on  the  premises. 

(4)  Things  on  other  premises. 

(5)  Things  not  belonging  to  the  tenant. 

(6)  Things  exempt  from  execution. 

(7)  Proceeds  of  sale. 

e.  Persons  entitled  to  assert  the  lien. 

(1)  Assignees. 

(2)  Persons  acting  in  behalf  of  others. 


TABLE  OF  CONTENTS.  xix 


f.  Priorities." 

(1)  General  considerations. 

(2)  Purchasers  with  notice. 

(a)  Ordinarily  take  subject  to  Hen. 

(b)  V/hat  constitutes  notice. 

(c)  Purchasers  in  ordinary  course  of  business. 

(3)  Purchasers  without  notice. 

(a)  Ordinarily  take  free  from  lien. 

(b)  Purchasers  not  for  value. 

(4)  Mortgagees. 

(5)  Persons  having  liens  for  supplies  or  services. 

(6)  Attachment  and  execution  creditors. 

(7)  Marshaling  of  securities. 

g.  Duration  of  the  lien. 

h.     Extinguishment  of  the  lien  by  payment. 
1.    Relinquishment  or  waiver  of  the  lien. 

(1)  Express  relinquishment. 

(2)  Acceptance  of  note  or  other  security. 

(3)  Inducing  action  by  third  person. 

(4)  Consent  to  sale  or  removal  of  property. 

(5)  Abstention  from  enforcement  of  lien. 

(6)  Blending  of  claims. 

j.     Removal  of  the  property  subject. 
k.    The  possessory  rights  of  the  landlord. 

1.     Enforcement  of  lien. 

(1)  Necessity  of  legal   proceeding. 

(2)  Form  of  proceeding. 

(3)  By  equitable  proceeding. 

(4)  In  collateral  proceeding. 

(5)  Before  maturity  of  claim. 

(6)  Affidavit  and  bond. 

(7)  Parties. 

(8)  Judgment. 

m.     Persons  interfering  with  property  subject— Pecuniary  liability. 

§  322.     Conventional  liens. 

a.  Form  of  stipulation  for  lien. 

b.  The  nature  of  the  lien. 

c.  The  indebtedness  secured. 

d.  Property  subject  to  the  lien. 

(1)  General  considerations. 

(2)  Property  of  assignee  or  subtenant, 

(3)  Description  of  property. 

(4)  After-acquired  property. 


^^  TABLE  OP  CONTENTS. 

e.  Persons  entitled  to  assert  lien. 

f.  Recording  and  priorities. 

g.  Waiver  of  the  lien. 

h.     Enforcement  of  the  lien, 

I.    Landlord's  rights  against  third  persons. 

§  323.     Deposits  to  secure  rent. 
324.    Agreement  to  give  security. 


CHAPTER  XXXII. 

DISTRESS  AND  ATTACHMENT. 
A.    Distress. 

325.  The  right  of  distress — General  considerations, 

326.  Existence  of  relation  of  tenancy. 

a.  Is  usually  necessary. 

b.  Character  of  demise  or  lease. 

c.  Possession  under  contract  for  lease. 

d.  Effect  of  transfer  of  interest. 

e.  Effect  of  expiration  of  term. 

f.  Effect  of  forfeiture, 

g.  Effect  of  surrender. 

327.  For  what  distress  may  be  made. 

a.  Not  for  periodic  payments  other  than  rent. 

b.  Sums  reserved  on  lease  of  land  and  chattels. 

c.  Sums  reserved  on  lease  of  land  and  incorporeal  things. 

d.  Certainty  of  rent. 

e.  Rent  payable  in  specific  articles. 

f.  Distress  for  services  other  than  rent. 

g.  Statutory  distress  for  advances. 
h.    Express  stipulations. 

328.    Things  subject  to  and  exempt  from  distress. 
a.     Things  not  belonging  to  the  tenant. 

(1)  Ordinarily  subject  to  distress. 

(2)  Things  belonging  to  tenant's  wife. 

(3)  Things  belonging  to  prior  or  subsequent  lessee. 

(4)  Things  on  premises  in  way  of  trade. 

(5)  Things  belonging  to  guest  or  lodger. 


TABLE  OF  CONTENTS.  xxl 


(6)  Straying   cattle. 

(7)  Circumstances  creating  estoppel  on  landlord. 

(8)  Reimbursement  of  owner  by  tenant. 

(9)  Statutory  changes  of  rule. 

b.  Fixtures. 

c.  Things  not  restorable  in  same  plight  as  when  taken. 

d.  Grain   and  growing  crops. 

e.  Things  in  actual  use. 

f.  Things  in  custodia  legis. 

g.  Beasts  of  the  plough  and  sheep. 

h.     Implements  of  husbandry  and   trade. 

1.    Animals  ferae  naturae. 

j.    Choses  in  action. 

k.    Things  exempt  by  statute. 

1.    Things  not  on  the  premises. 

(1)  Not  ordinarily  subject  at  common  law. 

(2)  Cattle  seen  on   premises   and   driven   therefrom. 

(3)  Statutory  right  as  to  things  removed. 

(4)  Statutory  right  as  to  tenant's  goods. 

§  329.     Loss  of  right  of  distress. 

a.  By  extinction  of  rent. 

b.  By  tender  of  rent  due. 

c.  By  release,  suspension,  or  waiver  of  right. 
[                d.     Effect  of  existence  of  other  remedies. 

e.  Effect  of  acceptance  of  note,  draft,  or  bond  for  rent. 

f.  Effect  of  tenant's  death. 

330.  Successive  distresses. 

331.  Amount  for  which  distress  allowable. 
332.     Set-off  and  counterclaim. 

333.  Time  for  distress. 

a.  Usually  after  rent  due. 

b.  Statutory  distress  for  rent  not  due. 

c.  Statutory  limitation  period. 

334.  Persons  entitled  to  distrain. 

a.  Persons  having  or  not  having  the  reversion. 

b.  Executors  and  administrators. 

c.  Tenants  pur  autre  vie. 

d.  Joint  tenants  and  tenants  in  common. 

e.  Mortgagors  and  mortgagees. 

f.  Receivers. 

g.  Agents. 

335.  Preliminaries  to  levy. 
a.  Demand  for  rent. 


TABLE  OF  CONTENTS. 


b.  Affidavit. 

c.  Bond. 

d.  Warrant. 

336.     Person  to  make  levy. 

337.  Mode  of  levy. 

a.  Entry. 

b.  Seizure. 

c.  Hours  for  levy. 

338.  Effect  of  levy. 

339.  Impounding. 

340.  Pound  breacb. 

341.  Care  of  things  taken. 

342.  Sale  and  preliminaries  thereto. 

a.  Power  to  sell. 

b.  Notice  to  tenant. 

c.  Appraisement. 

d.  Mode  of  sale. 

343.  Surplus  proceeds   and   unsold   goods. 

344.  Statutory  distress  as  commencement  of  action. 

345.  Abandonment  of  distress. 

346.  Wrongful   and  irregular   distresses— Remedies. 

a.  Rescue. 

b.  Replevin. 

(1)  Proceedings  at  common  law. 

(2)  Local  statutory  changes. 

c.  Injunction. 

d.  Action  for  damages. 

(1)  Distress  when  no  tenancy  exists. 

(2)  Distress  when  no  rent  due. 

(3)  Seizure  or  sale  after  tender. 

(4)  Distress   on   property  not  subject. 

(5)  Irregularities  in  entry  or  seizure. 

(6)  Second   distress. 

(7)  Excessive  distress. 

(8)  Irregularities  after  seizure. 

(9)  Measure  of  damages. 

(10)  Persons  liable. 

(11)  Matters   excluding  right  of  action. 


TABLE  OP  CONTENTS.  xxiii 


B.    Attachment. 
347.    When  authorized. 

348.  Affidavit  for  attachment. 

349.  Bond. 

350.  Writ  and  levy  thereunder. 

351.  Damages  for  wrongful  attachment. 


CHAPTER  XXXIII. 

RIGHTS  OF  ACTION  AGAINST  THIRD  PERSONS. 

352.  Physical   injuries   to  premises. 

a.  Action  by  landlord. 

b.  Action  by  tenant. 

353.  Interference  with  rights  of  enjoyment. 

a.  Action  by  landlord. 

(1)  Rule    ordinarily   asserted. 

(2)  Theory  of  recovery. 

(3)  Form  of  action. 

(4)  Averments  of  injury. 

(5)  Measure  of  damages. 

(6)  Loss  or  reduction  of  rent. 

b.  Action  by  tenant. 

(1)  Right  of  action. 

(2)  Interference  existing  prior  to  lease. 

(3)  Form  of  action. 

(4)  Measure  of  damages. 

(5)  Effect  of  contract  by  landlord. 

854.     Taking  for  public  use. 

355.  Interference  with  relation  of  tenancy. 

356.  Action  of  ejectment. 


LANDLORD  AND  TENANT. 


CHAPTER  XVII. 

EVICTION. 


184.  General  considerations. 

185.  By  landlord. 

a.  Actual  and  constructive  eviction. 

b.  Intention  of  landlord. 

c.  General  character  of  landlord's  acts. 

d.  Tenant  must  relinquish  possession. 

e.  Total  and  partial  eviction. 

f.  Specific  acts  by  landlord. 

(1)  Forcible  expulsion  or  exclusion. 

(2)  Interference  with  ingress  or  egress. 

(8)     Deprivation  of  rights  appurtenant  to  leasehold. 

(4)  Acts  of  omission. 

(5)  Occupation  by  landlord  on  tenant's  abandonment. 

(6)  Subsequent  lease  or  other  conveyance. 

(7)  Unauthorized   demand   for   possession. 

(8)  Injurious  conditions  on  adjoining  premises. 

(9)  Threats  and  annoyances  by  landlord. 

(10)  Interference  with  subtenant. 

(11)  Making  of  repairs. 

(12)  Withholding  of  license  for  business. 
g.    Tenant's  assent  to  landlord's  acts. 

h.     Effect  of  eviction  on  tenancy. 
i.     Action  for  damages. 
186.     By  third  person. 

a.  Under  title  paramount. 

(1)  What  constitutes  title  paramount. 

(2)  Acts  constituting  eviction. 

(3)  Eifect  of  eviction. 

b.  Wrongful  acts  of  third  persons. 

c.  Acts  of  public  authorities. 

§  184.     General  considerations. 

What  is  known  as  an  "eviction"  of  the  tenant  from  the  de- 
mised premises  has  important  consequences,  one  of  which  is  the 


1258  EVICTION.  §  185 

saspension  or  extinction  of  the  landlord's  right  to  rent,  in  whole 
or  in  part/  and  another  is  that  it  gives  a  right  of  action  to  the 
tenant  against  the  landlord,  either  on  the  covenant  for  quiet  en- 
joyment ^    or,  in  case  the  eviction  is  by  the  landlord,  in  tort.^ 

An  eviction  having  legal  consequences  of  the  character  re- 
ferred to  may  be  either  by  the  landlord  or  by  a  third  person  hav- 
ing a  title  paramount  to  that  of  the  landlord.  There  is  no  such 
thing,  in  a  legal  sense,  as  an  eviction  by  a  third  person  not  having 
paramount  title,  or,  as  the  same  idea  may  be  otherwise  expressed, 
using  the  term  in  an  untechnical  sense,  an  eviction  by  a  third 
person,  not  having  paramount  title,  does  not  have  any  legal  effect 
as  against  the  landlord  but  merely  renders  such  third  person 
liable  as  a  tort  feasor  for  the  trespass.* 

An  eviction  may,  in  general  terms,  be  said  to  occur  when  the 
tenant  is  forced  to  yield  possession  to  one  having  a  title  paramount 
to  that  of  the  landlord,  or  when  the  landlord  himself  dispossesses 
the  tenant,  either  hy  actually  taking  possession  or  by  such  acts 
of  interference  with  the  latter 's  enjoyment  of  the  premises  that 
the  tenant  is,  in  the  eye  of  the  law,  justified  in  relinquishing  pos- 
session, and  he  does  relinquish  it. 

§  185.   By  landlord. 

a.  Actual  and  constructive  eviction.  The  question  whether, 
in  a  particular  case,  there  has  been  an  eviction  by  the  landlord 
may,  and  frequently  does,  involve  very  considerable  difficult}''. 
There  clearly  is  an  eviction  by  the  landlord  if  he  forcibly  dis- 
possesses the  tenant,  as  there  is  if,  during  the  temporary  absence 
of  the  tenant,  the  landlord  prevents  him  from  returning.^  But 
not  only  is  such  an  act,  which  in  itself  involves  a  direct  depriva- 
tion of  possession,  regarded  as  an  eviction,  but  so  is  any  other  act 
which  so  affects  the  tenant's  enjoyment  of  the  premises  that 
he  relinquishes  possession,  provided  this  act  is  a  legal  justi^- 
cation  for  such  relinquishment.  It  is  i.n  determining  what  acts 
constitute  such  a  justification  that  the  chief  difficulty  of  the  sub- 
ject arises.  An  eviction  of  the  latter  class,  that  is,  not  by  the 
forcible  removal  or  exclusion  of  the  tenant  but  by  acts  of  inter- 

1  See  ante,  §  1S2  e.  4  See  post,  §  186  b. 

2  See  ante.  79.  6  See  post,  §  185  f  (1). 

3  See  post,  §  185  i. 


BY  LANDLORD.  1259 

ference  with  his  enioyment  resulting  in  his  -^i-^^"*  ;,^ 
possession,  is  quite  frequently  referred  to  as  a  ;  constructive 
eviction,  as  distinguished  from  an  "actual     eviction. 

The  courts  usually  speak  of  a  particular  act  or  series  of  acts 
on  the  part  of  the  landlord  as  constituting  a  constructive  evicao.n 
vel  nor.  without  any  reference  to  the  subsequent  relinquishment 
of  possession  by  the  tenant.     This  is  not  a  strictly  accurate  mode 
of  expressid,  since  parting  with  the  possession  is  as  much  a 
part  of  the  eviction  when  the  tenant  leaves  as  a  result  of  tne 
landlord's  interference  with  his  enjoyment  as  when  he  is  forcioiy 
ousted,  he  being  in  theory  ousted  by  the  landlord  in  the  former 
case  as  in  the  latter.     This  mode  of  expression  is,  however,  highly 
co^ivenient,  and  will  be  adopted  in  the  following  pages,_it  being 
borne  in  mind,  however,  that  when  we  speak  of  a  certain  act  on 
the  part  of  the  landlord  as  constituting  an  eviction,  we  mean 
that  if  such  act  results  in  the  tenant's  relinquishmeat  of  posses- 
sion' they  together  have  the  legal  effect  of  an  eviction. 

b '    Intention  of  landlord.    In  order  that  an  eviction  may  take 
place  as  a  result  of  acts  on  the  part  of  the  landlord  involving 
merely  an  interference  with  the  tenant's  possession  and  enjoy- 
ment,  as  distinct  from  an  actual  dispossession,  it  is  necessary 
that  they  be  such  as  to  indicate  an  intention  on  the  landlord,  s 
part  to  deprive  the  tenant  of  the  possession.^     The  intention  here 
referred  to  is,  however,  ordinarily  of  a  purely  legal  nature,  in- 
ferred from  the  character  of  the  landlord's  act  or  acts,  and  the 
question  of  actual  intent  arises,  it  has  been  said,  ''only  when  the 
acts  are  such  as  do  not  of  themselves  afford  a  presumption  of  in- 
tent.""^    There  are,  indeed,  but  few  reported  cases  m  which  the 

eUDton  V   Townend,  17  C  B.  30;    Generally  the  question  whether  acts 
T,-  -nndlev    65   Ala    63-    Eisen-   of   the    landlord    in   consequence    of 

IZ  v'  OrdeanV  3  Colo.  App-  162.  32  which  the  tenant  abandons  the  prem- 
l  lor  Fleming  v  King,  100  Ga.  ises  amount  to  an  eviction  is  a  ques- 
rr9%8  S  eT39  Hayner'v.  Smith,  tion  of  law,  and  includes  the  ques- 
ro  ;ii  4''0  U  Am.  Rep.  124;  Morris  tion  whether  they  constitute  proof 
V  T m'on'  SI  111.  607;  Dennick  v.  of  the  intent.  A  person  is  pre- 
IJZ  ^09  Til  \PP  199;  Hay  ward  sumed  to  intend  the  natural  and 
'^  f  :  '  .VNeb  sSg  51  N  W.229;  probable  consequences  of  his  acts; 
^ineTv  Maguire  IS  R  L  770.  30  and  when  the  acts  of  a  landlord 
Miner  V.  mctfa  ^^^^^  ^^^  demised  premises  are  such 

^''sWly  V    Shute,  132  Mass.   367.   as   naturally   and    probably   exclude 
per   W.    Allen.    J.,    who    continues:    the  tenant  from  the  possession  and 


J260  EVICTION.  §  185 

actual  mental  intention  of  the  landlord  was  regarded  as  material 
in  determining  whether  there  was  an  evietion.s 

c.  General  character  of  landlord's  acts.  In  order  to  support 
the  inference  of  an  intention  to  deprive  the  tenant  of  possession, 
the  landlord's  act  or  acts  must  not  only  involve  a  substantial 
interference  with  the  tenant's  enjoyment  of  the  premises,  but  the 
interference  must  be  more  or  less  permanent.  As  is  generally 
said,  the  act  of  the  landlord  must  be  "something  of  a  grave  and 
permanent  character.  "^  To  these  words  is  ordinarily  added  in 
the  cases  the  statement  that  the  act  must  be  ''done  by  the  land- 
lord with  the  intention  of  depriving  the  tenant  of  the  demised 
premises,"  but  this,  as  above  remarked,  is  almost  invariably  in- 
ferred from  the  character  of  the  act,  that  is,  its  "grave  and  perma- 
nent character"  is  apparently  sufficient  to  show  this  intention. 

This  requirement  of  substantiality  and  permanency  in  the  land- 
lord's act  is  apparently  what  is  ordinarily  involved  in  the  state- 
ment, frequently  made,  that  a  "mere  trespass"  by  the  landlord 
does  not  constitute  an  evietion.io  T^^t  is,  a  trespass  by  the  land- 
enjoyment  of  the  premises,  and  as-  session  of  the  tenant  or  as  a  per- 
sert  a  title  in  the  landlord  himself,   sonal    trespass. 

the  law  presumes  an  intent  to  do  In  Kistler  v.  "Wilson,  77  111.  App. 
so-  and,  if  the  natural  consequence  149,  it  was  decided  that  the  land- 
follows,  the  acts  are  said  to  amount  lord's  consent  to  the  erection  of  an 
to  an  eviction."  In  this  case  it  was  elevated  railroad  in  front  of  the 
held  to  he  a  question  for  the  jury  premises  did  not  effect  an  eviction, 
v/hether  the  evidence  showed  that  since  it  did  not  indicate  an  inten- 
the  landlord  dug  up  the  soil  under  tion  to  deprive  the  tenant  of  the 
the  building  so  as  to  render  it  un-  full  enjoyment  of  the  premises, 
safe  for  occupancy,  while  it  was  a  though  this  was  its  effect, 
question  for  the  court  whether  these  9  Upton  v.  Towuend,  17  C.  B.  30; 
acts  were  done  with  such  an  inten-  Rice  v.  Dudley,  65  Ala.  68;  Fleming 
tion  that  an  eviction  resulted.  See,  v.  King,  100  Ga.  449,  28  S.  E.  239; 
also,  to  the  effect  that  the  intent  is  to  Hayner  v.  Smith,  63  III.  430,  14  Am. 
he  determined  from  the' acts,  Waite  Rep.  124;  Barrett  v.  Boddie,  158  111. 
v.  O'Neil,  76  Fed.  408.  479,  42  N.  E.   143,  49  Am.   St.  Rep. 

8  In  Henderson  v.  Mears,  1  Fost.  &  172;  Miller  v.  Maguire,  18  R.  I.  770, 
F.  636,  28  Law  J.  Q.  B.  305,  the  forci-  30  Atl.  966.  See  Royce  v.  Guggen- 
ble  expulsion  of  the  tenant's  agent  heim,  106  Mass.  201,  8  Am.  Rep.  322. 
in  charge  of  the  premises  was  held  lo  Upton  v.  Townend,  17  C.  B.  30; 
not  to  be  necessarily  an  eviction  of  Newby  v.  Sharpe,  8  Ch.  Div.  39; 
the  tenant,  but  it  was  left  to  the  Rice  v.  Dudley,  65  Ala.  68;  Hyman 
jury  to  say  whether  this  act  by  the  v.  Jockey  Club  Wine,  etc.,  Co.,  9 
landlord  was  intended   as   a  dispos-   Colo.  App.  299,  48  Pac.  671;  Isabella 


s^  ^gg  BY  LANDLORD.  1261 

lord  on  tlie  premises,  if  wanting  in  the  above  named  character- 
istics, cannot  result  in  an  eviction,  while  if  it  has  those  character- 
istics, and  it  is  followed  by  the  tenant's  relinquishment  of  posses- 
sion, it  does  so  result. 

Applying  this  distinction  between  a  trespass  and  an  eviction, 
it  has  been  held  that  an  eviction  was  not  shown  by  evidence  that 
the  landlord  merely  went  upon  the  demised  premises  and  removed 
therefrom  chattels  belonging  either  to  himself  or  to  the  tenant,!^ 
or  dug  coal  thereon,i2  or  cut  flowers,  trees  or  crops.^^  So  there  is 
merely  a  trespass  if  the  landlord  piles  firewood  on  a  part  of  the 
premises  without  interfering  with  the  tenant's  substantial  enjoy- 
ment,i4  if  he  occasionally  uses  the  premises  in  the  tenant's  ab- 
sence,i'5  if  he  enters  after  a  fire  to  clean  the  brick,!^  or  even, 
it  has  beeai  decided,  if  he  makes  an  assault  on  the  tenant.^^  On 
the  other  hand,  there  was  held  to  be  an  eviction  when  the  ten- 
ant abandoned  the  premises  owing  to  the  act  of  the  landlord  in 
digging  up  the  soil  under  the  building,  thereby  rendering  it 
unsafe  for  occupancy,is  and  when,  after  the  destruction  of  a 
building,  of  which  parts  were  leased  to  different  tenants,  the 
landlord  authorized  the  reconstruction  of  the  building  in  such  a 

Gold  Min.  Co.  v.  Glenn,  37  Colo.  165,  12  Tiley  v.  Moyers,  43  Pa.  404. 

86  Pac.  349;    Fleming  v.  King,  100  "  Bartlett      v.     Farrington,      120 

Ga.    449,    28    S.   E.    239;    Hayner   v.  Mass.  284. 

Smith,  63  111.  430,  14  Am.  Rep.  124;  i-i  Loim^.berry  v.  Snyder,  31  N.  Y. 

Royce  v.  Guggenheim,  106  Mass.  201,  514. 

8  Am.  Rep.  322;    Kimball  v.  Grand  The  act  of  the  landlord  in  filling 

Lodge  of  Masons,  131  Mass.  59;  Mc-  up  the  cellar  of  the  demised  prem- 

Fadin  v.  Rippey,  8  Mo.  738;   Elliott  ises  vrith  dirt  is  said,  in  McFadin  v. 

V.  Aiken,  45  N.  H.  30:   Edgerton  v.  Rippey,   8   Mo.   738,   to  be   "a   mere 

Page,  1  Hilt.   (N.  Y.)   320;   Noble  v.  trespass  or  illegal  ouster,  and  not  a 

Warren,    38    Pa.    340.     That    a   tres-  legal  eviction." 

pass,   without   any   dispossession   of  15  Way  v.  Myers,  64  Ga.  760. 

the  tenant,  is  not  an   eviction   was  is  Fleming  v.  King,  100  Ga.  449,  28 

explicitly  decided  by  the  old  author!-  S.  E.  239. 

ties  before  the  theory  of  "construe-  17  Vatel  v.  Herner,  1  Hilt.  (N.  Y.) 

tive"  eviction  arose.     See  the  review  149;  Haas  v.  Ketcham,  87  N.  Y.  Supp. 

of  the  cases  in  Bennet  v.  Bittle,  4  411.     See  post,  §  185  f   (9). 

Rawle   (Pa.)    339.  The  act  of  the  landlord  in  procur- 

11  Kimball     v.     Grand     Lodge     of  ing  the  tenant's  arrest  for  interfer- 

Masons,    131    Mass.    59;    Bartlett   v.  ing   with   a    distress   is    at    most   a 

Farrington,  120  Mass.  284;  Hay  ward  trespass.     Noble  v.   Warren,   38   Pa. 

V.  Parage,  33  Neb.  836,  51  N.  W.  229;  840. 

Newby  v.  Sharpe,  8  Ch.  Div,  39.  is  Skally  v.  Shute,  132  Mass.  367. 


1262  EVICTION.  §  185 

way  that  the  area  of  the  premises  of  each  tenant  was  changed, 
each  tenant  was  regarded  as  evicted.^^  Likewise  it  has  been 
decided  that  the  act  of  the  landlord,  after  breaking  into  the 
premises,  in  having  the  lock  altered  and  retaining  the  key, 
changed  what  was  a  trespass  into  an  eviction.^^^ 

The  question  whether  there  has  been  an  eviction  is  one  for 
the  jury,  it  is  said,^^  that  is,  it  is  for  them  to  decide  whether  the 
acts  done  by  the  landlord  are  of  a  substantial  and  permanent 
character,  shoAving  an  intention  to  dispossess  the  tenant  of  the 
premises.  But  the  courts,  in  many  cases,  discuss  the  question 
as  a  matter  of  law  with  reference  to  whether,  in  the  particular 
case,  the  facts  are  sufficient  to  justify  the  finding  of  an  evie- 
tion.2i 

10  Upton  V.  Townend,  IT  C.  B.  30.  [2]).  This  legal  result  of  the  de- 
There  it  was  held  that  a  tenant  was  struction  of  the  building  would  seem 
evicted,  although  the  premises  not  to  be  changed  by  the  presence 
which  he  would  enjoy  under  the  new  of  a  covenant  to  rebuild  in  case  of 
plans  were  larger  than  those  to  destruction,  as  in  the  English  case 
which  he  was  entitled  before  the  fire,  referred  to,  but  this  might  perhaps 
since  he  was  thereby  deprived  of  be  construed  as  a  covenant  to  re- 
the  occupation  "of  the  thing  de-  build  and  to  give  a  new  lease  for  the 
mised"  and  he  could  not  use  his  residue  of  the  old  term, 
premises  without  the  danger  of  tres-  ^^^  Lester  v.  Griffin,  57  Misc.  628, 
passing  on  another's  premises,  and  108  N.  Y.  Supp.  580. 
he  was  also  deprived  of  the  protec-  20  Hunt  v.  Cope,  Cowp.  242;  Upton 
tion  and  support  of  his  boundary  v.  Townend,  17  C.  B.  30;  New  York 
wall,  which  was  removed  to  anoth-  Dry  Goods  Store  v.  Pabst  Brew.  Co., 
er's  premises.  The  discussion  of  50  C.  C.  A.  295,  112  Fed.  381;  Rice  v. 
the  subject  of  eviction  in  this  case  Dudley,  65  Ala.  68;  Collins  v.  Kara- 
has  been  constantly  referred  to,  and  .topsky,  36  Ark.  316;  Hyman  v.  Joe- 
it  is  no  doubt  the  leading  case  on  key  Club  Wine,  etc.,  Co.,  9  Colo.  App. 
the  subject.  In  this  country,  how-  299,  48  Pac.  671;  Holly  v.  Brown,  14 
ever,  where  the  lease  of  part  of  a  Conn.  255;  Talbott  v.  English",  156 
building  is  not  regarded  as  passing  Ind.  299,  59  N.  E.  857;  Hayner 
any  interest  in  the  land  itself  (see  v.  Smith,  63  111.  430,  14  Am.  Rep. 
ante,  §§  24c,  26c  [2]),  the  actual  124;  Barrett  v.  Boddie,  158  111.  479, 
decision  would  presumably  have  42  N.  E.  143,  49  Am.  St.  Rep.  172; 
been  otherwise,  and  the  tenancy  be-  Rubens  v.  Hill,  213  111.  523,  72  N.  E. 
Ing  regarded  as  terminated  by  the  1127;  Jackson  v.  Eddy,  12  Mo.  209; 
destruction  of  the  building  (see  Peck  v.  Hiler,  31  Barb.  (N.  Y.)  117; 
ante,  §  12  g  [8]),  any  subsequent  Broadway  Bldg.  Co.  v.  Myers,  49 
change  in  the  nature  and  plans  of  Misc.  531,  97  N.  Y.  Supp.  977. 
the  building  could  not  be  regarded  21  in  Skally  v.  Shute,  132  Mass. 
as  an   eviction    (see  ante,   §   182   m   367,  it  was  said  that  "generally  the 


e  -^gg  BY  LANDLORD.  1263 

d.  Tenant  must  relinquish  possassion.  In  order  that  there 
be  an  eviction  by  the  landlord,  in  the  legal  sense,  it  is  necessary 
that  the  tenant  no  longer  retain  possession  of  the  premises.  In 
case  of  an  actual  dispossession  of  the  tenant,  an  "actual  evic- 
tion," no  question  can  arise  in  this  regard,  but  when  there  is 
merely  an  interference  with  his  possession  and  enjoyment,  it 
is  necessary  that  the  tenant  relinquish  possession  of  the  prem- 
ises in  order  that  there  be  a  "constructive  eviction,"  the  theory 
being  that  the  acts  of  interference  by  the  landlord  compel  the 
tenant  to  leave,  and  that  he  is  thus  in  effect  dispossessed,  though 
not  forcibly  deprived  of  possession.22  As  has  been  remarked, 
"the  proposition  that  there  can  be  retention  of  demised  premises 
and  an  eviction  are  logically  and  legally  contradictory.  "23     Not 

question  whether  acts  of  tho  land-  104  N.  Y.  Supp.  863;  Mahoney  v. 
lord  in  consequence  of  which  the  Broadway  Brew.  &  Malting  Co.,  57 
tenant  abandons  the  premises  Misc.  430,  108  N.  Y.  Supp.  237;  Jack- 
amount  to  an  eviction  is  a  question  son  v.  Paterno,  58  Misc.  201,  108  N. 
of  law,"  and  it  was  held  to  be  Y.  Supp.  1073;  Sutton  v.  Foulke,  44 
ground  for  reversal  that  the  ques-  Leg.  Int.  (Pa.)  5;  Leiferman  v. 
tion  was  left  to  the  jury,  it  being  Osten,  167  111.  93,  47  N.  E.  203;  Hum- 
merely  for  them  to  say  whether  the  iston,  Keeling  &  Co.  v.  Wheeler,  175 
landlord  did  the  acts  alleged.  111.    514,    51    N.    E.    893;    Ralph    v. 

22Cromm8lin  v.  Thiess,  31  Ala.  Lomer,  3  Wash.  St.  401,  28  Pac.  760; 
412,  70  Am.  Dec.  499;  Agar  v.  Win-  Wilson  v.  Smith,  13  Tenn.  (5  Yerg.) 
slow,  123  Cal.  587,  56  Pac.  422,  69  379.  But  compare  cases  referred  to 
Am.  St.  Rep.  84;    Barrett  v.  Boddie,   post,  note  34. 

158  111.  479,  42  N.  E.  143,  49  Am.  St.  23  Mortimer  v.  Brunner,  19  N.  Y. 
Rep.   172;    Keating  v.   Springer,  146    (6  Bosw.)   653. 

111.  481,  34  N.  E.  805,  37  Am.  St.  Sometimes  this  requirement  Is  ex- 
Rep.  175  (obstruction  of  light) ;  Hig-  pressed  by  the  statement  that  the 
hie  Co.  V.  Weeghman  Co.,  126  111.  App.  tenant's  abandonment  of  the  prem- 
97;  Talbott  v.  English,  156  Ind.  299,  ises  is  necessary  to  effect  an  eviction, 
59  N.  E.  857;  Taylor  v.  Finnigan,  189  and  sometimes  by  the  statement  that 
Mass.  568.  76  N.  E.  203;  Roth  v.  an  eviction  by  the  landlord  must  be 
Adams,  185  Mass.  341,  70  N.  E.  445;  followed  by  such  abandonment  to 
International  Trust  Co.  v.  Schu-  have  a  legal  effect  on  the  rent  or  to 
mann,  158  Mass.  287,  33  N.  E.  509;  give  a  right  of  action.  We  would 
Beecher  v.  Duffield,  97  Mich.  423,  56  prefer  the  former  mode  of  expres- 
N.  W.  777;  Boreel  V.  Lawton,  90  N.  Y.  sion,  since  the  landlord's  abandon- 
293,  43  Am.  Rep.  170;  Bdgerton  v.  ment  of  the  premises  is,  as  before 
Page,  20  N.  Y.  281;  Beakes  v.  Haas,  stated  (see  ante,  §  185  a),  a  constit- 
86  Misc.  796,  74  N.Y.  Supp.  843;  Hall  uent  part  of  the  eviction.  The 
v.  Irvin,  38  Misc.  123.  77  N.  Y.  Supp.  legal  consequences  are  a  result  of  the 
91;   Kinney  v.  Libbey,  54  Misc.  595,   eviction,  and  not  of  the  eviction  plua 


]^264  EVICTION.  §  185 

only  must  there  be  a  relinqmshment  or  abandonment  of  pos- 
session, but  this  must  be  on  account  of  the  interference  by  the 
landlord ;  and,  if  this  is  not  the  case,  the  fact  that  the  abandon- 
ment follows  after  acts  of  interference  sufficient  in  themselves 
to  justify  the  abandonment  does  not  give  rise  to  a  legal  evic- 
tion.24  Accordingly  there  is  no  eviction  if  the  acts  on  the  part 
of  the  landlord  are  merely  temporary  in  their  effect,  and  are  no 
longer  operative  at  the  time  of  the  tenant's  abandonment  of  pos- 
session.25 

It  has  been  said  that  the  tenant  must  abandon  the  premises 
within  a  reasonable  time  after  the  acts  complained  of,^^  the 
meaning  of  which  presumably  is  that  the  lapse  of  a  consider- 
able time  before  abandonment  tends  to  show  that  the  abandon- 
ment, when  it  does  take  place,  is  not  a  result  of  such  acts.  A 
delay  in  rbandonment  is,  however,  it  seems,  excused  if  this  is 
the  result  of  promises  by  the  landlord  to  remove  the  cause  for 
abandonment.27  And  though  the  tenant  fails  to  abandon  the 
premises  on  account  of  conditions  justifying  him  in  so  doing, 
this  does  not  prevent  him  from  so  doing  on  a  subsequent  re- 
newal of  such  conditions  in  a  more  aggravated  form,  and  from 
then  asserting  an  eviction.^s 

e.  Total  and  partial  eviction.  An  eviction  may  be  from  the 
whole  of  the  demised  premises,  or  from  part  only,  a  "partial 
eviction"  as  it  is  termed.     For  the  purpose  of  constituting  a 

the    tenant's    abandonment.     As    is  zg  Crommelin    v.    Thiess,    31    Ala. 

said  bj-  Larremcre,  C.  J.,  in  Koehler  412,  70  Am.  Dec.  499;  Dennick  v.  Ek- 

V.   Scbeider,   15   Daly,   203,   4    N.    Y.  dabl,    102    111.    App.    199;    Orcutt    v. 

Supp.  611,  tbe  statement  that  a  ten-  Isham,  70  111.  App.  102;  Fox  v.  Mur- 

ant,  while  remaining  in  possession,  dock,  58  Misc.  207,  109  N.  Y.  Supp. 

cannot  assert  an  eviction,   "is   only  108;   Seaboard  Realty  Co.  v.  Fuller, 

another  way  of  saying  that  one  can-  33  Misc.  109,  67  N.  Y.  Supp.  146. 

not  raise  the  defense  of  eviction  un-  The    tenants    cannot    delay    their 

less  he  has  been  evicted."  abandonment,  it  has  been  held,  till 

21  Eisenhart    v.    Ordean,    3    Colo,  after  a  time  when,  by  the  provisions 

App.  162,  32  Pac.  495;  Riley  v.  Lally,  of  the  lease,  they  might  have  term- 

172  Mass.   244,   51  N.   E.   1088;    Ed-  inated    the    tenancy.      Megargee    v. 

wards   v.    Candy,    14    Hun    (N.   Y.)  Longaker,  10  Pa.  Super.  Ct.  491. 

5?,6;    Humiston,    Keeling    &    Co.    v.  27  Wallace  v.  Lent,  1  Daly  (N.  Y.) 

Wheeler,  175  111.  514,  31  N.  B.  893.  481. 

23  Ryan  V.  Jones,  2  Misc.  65,  20  N.  28  Marks  v.  Dellaglio,  56  App.  Div, 

Y.    Supp.    842;    Adams    v.    Burr,    13  299,  67  N.  Y.  Supp.  736. 
Misc.  247,  34  N.  Y.  Supp.  156. 


§  185  BY  LANDLORD.  1265 

defense  to  a  claim  for  rent,  a  partial  eviction  by  the  landlord 
is  as  effective  as  an  entire  eviction,^'^  but  there  would  ordinarily 
be  a  difference  as  regards  the  liability  of  the  landlord  in  dain- 
ages.3*^  An  actual  eviction  may  be  partial,  as  when  the  land- 
lord takes  possession  of  part  of  the  premises  by  actually  dis- 
possessing or  excluding  the  tenant  therefrom,^^  as  likewise,  pre- 
sumably, may  a  constructive  eviction,  as  when  the  landlord  so 
interferes  with  the  tenant's  enjoyment  of  a  part  of  the  prem- 
ises that  the  latter  is  justified  in  relinquishing  possession  of  that 
part  and  he  does  so,  retaining  possession  of  the  residue.^^  More- 
over, an  actual  eviction  of  the  tenant  from  part  of  the  premises 
may  so  affect  his  enjoyment  of  the  premises  as  a  whole  as  to 
justify  their  entire  abandonment  by  him,  thus  resulting  in  a 
constructive  eviction  from  the  whole.^s 

Ordinarily  the  question  whether  an  eviction  is  from  part  or 
all  of  the  premises  presents  but  little  difficulty,  and  there  are 
but  few  decisions  bearing  thereon.  Occasionally,  however,  the 
question  has  arisen  whether  there  was  an  actual  eviction  from 
part  of  the  premises  or  merely  acts  on  the  part  of  the  landlord 
justifying  the  tenant's  abandonment  of  the  whole,  which,  not 
being  followed  by  such  abandonment,  were  without  legal  effect, 
and  some  courts  have  gone  decidedly  far  in  regarding,  as  con- 
stituting a  partial  actual  eviction,  acts  which  merely  cause  an 
interference  with  the  tenant's  enjoyraeat  of  the  premises,  and 
which  would  seem  to  be  legally  ineffective  unless  followed  by 
the  tenant's  abandonment  of  the  whole  or  of  part  of  the  prem- 
ises.34     These  cases  in  eft'ect,  it  seems,  deny  the  rule  before  as- 

20  See  ante,   §   182  e    (2).  conf-tituted   an  actual   eviction  from 

30  See  post,  §  185   i.  part   of    the    premises,    so   that   the 

31  See  post,  at  notes  37-40.  right  to  rent  was  suspended,  though 

32  See  Royce  v.  Guggenheim,  106  the  tenant  retained  possession  of 
Mass.  201,  8  Am.  Rep.  322.  Com-  the  whole  office.  It  is  somewhat 
pare  ante,  §  182  e  (2),  at  notes  859a-  difficult  to  understand  how  the  clos- 
861.  ing   of  an  opening  in  the  wall  can 

33  See  Newton  v.  Allin,  1  Q.  B.  518.   be    regarded    as   an   exclusion    from 

34  In  Hamilton  v.  Grayblll,  19  possession  of  a  part  of  the  premises. 
Misc.  521,  43  N.  Y.  Supp.  1079,  and  so  as  to  be  an  actual  eviction  in 
Seigel  V.  Neary,  38  Misc.  297,  77  N.  part,  except  upon  the  theory  that 
Y.  Supp.  854,  it  was  held  that  the  the  threshold,  a  part  of  the  leased 
closing  by  the  landlord  of  one  of  premises,  is  actually  occupied  by  tho 
the  two  entrances  to  the  room  leased   closed  door  or  by  some  other  obstruc- 

L.  and  Ten.  80. 


1266  EVICTION.  I  185 

serted,  that  there  can  be  no  eviction  while  the  tenant  remains 
in  possession  of  the  leased  premises,  and  obliterate  all  distinc- 
tion between  actual  and  constructive  eviction.     Several  of  tliciu 

tion    placed    there    by   the   landlord,  rent  when  the  tenant's  right  to  the 

In  Lawrence  v.  Denham  Co.,  58  Misc.  use    of   a   certain    yard    and   certain 

543,  109  N.  Y.  Supp.  752,  it  was  held  conveniences  therein  appurtenant  to 

that   there    was   an    "actual    partial  the   leased   premises    was   prevented 

eviction"    because   the    tenant    of   a  by    the    landlord's    building    in    the 

loft  in  a  building  was  at  times  pre-  yard. 

vented  from  personally  entering  the  In  New  York  Dry  Goods  Store  v. 

building.  Pabst  Brew.  Co.,  50  C.  C.  A.  295,  112 

In  Hall  V.  Irvin,  78  App.  Div.  107,  Fed.  381,  the  act  of  the  landlord  in 

79  N.  Y.   Supp.   614,  it  was   decided  cutting  openings  in  the  wall,  while 

that  it  was  ground  for  refusal  to  pay  extending  his  window  space  on  the 

rent,   although   the   tenant   retained  floor  above  that  leased,  was  regarded 

possession    of    the    leased    premises,  as  an  actual  eviction.     And  in  Her- 

that  he  was  deprived  of  the  use,  to  polsheimer  v.   Funke,   1   Neb.  Unoff. 

a   considerable    extent,    of   the    lava-  471,  95  N.  W.  688,  the  act  of  the  land- 

tories  in  the  building,  and  that  his  lord  in  obstructing  the  view  into  a 

use  of  the  passages,   stairways   and  show   window   of   which   the  tenant 

elevators  leading  to  the  offices  leased  had  the  use  was  regarded  as  an  evic- 

by  him  was  greatly  interfered  with  tion,    though   the   tenants    remained 

by  the  making  of  repairs.     In  Edmi-  possessed  of  the  leased  premises  as 

son  V.  Lowry,  3  S.  D.  77,  52  N.  W.  before. 

583,  44  Am.  St.  Rep.  774,  17  L.  R.  To  these  cases  may  be  added 
A.  275,  It  was  decided  that  the  acts  Brown  v.  Holyoke  Water  Power  Co., 
of  the  landlord  in  depositing  lum-  152  Mass.  463,  25  N.  E.  966,  23  Am. 
ber  in  the  street,  thereby  interfering  St.  Rep.  844,  where  there  was  said 
with  access  to  the  premises  leased,  to  be  an  eviction  from  "part  of  the 
constituted  an  actual  eviction  from  premises  let,"  when  the  tenant  was 
part  of  the  premises  sufficient  as  a  deprived  of  power  which  the  land- 
defense  to  rent,  though  the  tenant  lord  had  agreed  to  furnish,  though 
retained  possession  of  all  the  prem-  the  tenant  remained  in  possession  of 
ises  not  within  the  line  of  the  street,  all  of  the  rooms  leased.  This  was 
And  in  Pridgeon  v.  Excelsior  Boat  an  action  against  the  landlord  for 
Club,  66  Mich.  326,  33  N.  W.  502,  damages,  and  the  use  of  the  term 
where  the  premises  were  leased  for  eviction  may  perhaps  be  regarded 
use  as  a  boat  house,  the  fact  that  as  a  mere  mode  of  expression,  the 
the  landlord  interfered  with  access  wrong  consisting  in  the  breach  of 
thereto  from  the  water  was  regarded  the  contract  to  furnish  power.  Pow- 
as  an  actual  eviction  excusing  the  er  for  manufacturing  purposes, 
payment  of  rent,  though  the  tenant  transmitted  by  belting  or  otherwise, 
remained  in  possession.  So  in  a  mere  form  of  energy,  cannot,  prop- 
Witte  V.  Quinn,  38  Mo.  App.  681,  erly  speaking,  it  Is  submitted,  be  "a 
there  was  held  to  be  an  actual  evic-  part  of  the  premises  let."  See  ante, 
tion  for  the  purpose  of  a  defense  to  §§  24  a,  136. 


.    jg5  BY  LANDLORD.  1267 

are  apparently  based  on  the  theory  that  if,  upon  the  lease  of  a 
part  of  a  building,  the  lessee  has  an  appurtenant  right,  such  as 
that  of  access,  in  another  part  of  the  building  remaining  in  the 
lessor's  possession,  that  right  constitutes  a  part  of  the  leased 
premises,  so  that  an  interference  with  the  exercise  thereof  con- 
stitutes an  actual  eviction  from  a  part  of  such  premises.  This, 
it  is  submitted,  is  incorrect.  A  right  to  make  a  particular  use  of 
a  part  of  the  building  adjoining  that  part  of  which  the  lessee 
is  given  possession,  in  order  that  such  possession  may  be  more 
beneficial  or  valuable,  is,  it  is  conceived,  not  a  part  of  the  leased 
premises,  but  is  merely  a  right  appurtenant  to  the  tenant's  pos- 
sessory interest.  This  seems  particularly  the  case  when  there  is 
no  specific  mention  of  such  right  in  the  lease  but  merely  an  im- 
plication of  a  grant  thereof,  based  on  the  mode  of  construction 
of  the  building  or  on  the  previous  method  of  use. 

f.  Specific  acts  by  landlord— (1)  Forcible  expulsion  or  ex- 
elusion.  The  forcible  expulsion  and  exclusion  of  the  tenant 
from  the  premises  by  the  landlord  is,  as  stated  above,  undoubt- 
edly an  eviction,  an  "actual"  eviction,  in  the  full  sense  of  the 
term,35  and,  even  without  any  expulsion  of  the  tenant,  his  ab- 
solute exclusion  from  the  premises  after  he  has  taken  posses- 
sion is  an  eviction.^^ 

In  case  the  exclusion  is  from  not  the  whole  of  the  demised 
premises  but  a  part  thereof,  there  is  but  a  partial  evictio.n.37  In 
ease  of  such  exclusion  from  part  there  is,  it  has  been  said,  a 
partial  eviction,  without  reference  to  the  extent  of  such  part, 
or  whether  such  exclusion  materially  changes  the  character  and 

85Hyman  v.  Jockey  Club  Wine,  138,  57  N.  E.  360.  it  was  held  a 
etc.,  Co.,  9  Colo.  App.  299,  48  Pac.  question  for  the  jury  on  the  evidence 
671-  Hayner  v.  Smith,  63  111.  430,  14  whether  the  act  of  the  landlord  in 
Am'.  Rep.  124;  Skally  v.  Shute,  132  taking  the  keys  of  the  rooms  leased 
Mass.  367;  Hall  v.  Joseph  Middle-  out  of  the  door,  where  they  had 
bv,  Jr.,  197  Mass.  485,  83  N.  E.  1114;  been  left  by  the  tenant,  was  a  sub- 
Witte  V.  Quinn,  38  Mo.  App.  681.  stantial   exclusion  of  the  tenant,  or 

A  forcible  expulsion  of  the  ten-  whether  his  holding  of  the  keys  was 
ant  is  an  eviction,  though  thereafter  merely  temporary  and  incidental  to 
no  attempt  is  made  to  prevent  his  the  care  of  the  rooms,  with  a  desire 
return.     Cibel  v.  Hills,  1  Leon.  110.     on  his  part  to  have  an  opportunity 

30  pendill    v.    Eells,    67   Mich.    657,   of  speaking  to  the  tenant. 
85  N    W    754;    New  York  Academy       st  Smith  v.  Raleigh.  3  Camp.  513; 
of  Music  V.  Hackett,  2  Hilt.   (N.  Y.)    Colburn    v.    Morrill,    117    Mass.    262, 
217.     In  Faxon  v.  Jones,  176  Mass.   19  Am.  Rep.  415;   Smith  v.  Wise,  58 


1268 


EVICTION.  S  185 


enjoyment  of  the  premises.^s  A  different  view  has,  however, 
been  expressed.39  Though  the  tenaJit  is  actually  excluded  from 
a  part  only  on  the  premises,  there  is,  as  before  stated,  an  evic- 
tion from  the  whole,  no  doubt,  if  this  is  such  a  substantial  inter- 
ference with  the  enjoyment  of  the  whole  as  to  justify  the  tenant 
in  relinquishing  possession  of  the  other  part,  and  he  does  so.*^ 
The  refusal  of  the  lessor  to  allow  the  lessee  to  take  possession 
under  his  lease  is,  it  seems,  not  an  eviction,  since  one  who  has 
never  been  in  possession  cannot  be  dispossessed.-^^ 

Somewhat  similar,  in  its  nature  and  effect,  to  an  exclusion  of 
the  tenant  from  possession  by  the  landlord,  is  the  former's  ex- 
clusion by  the  act  of  the  landlord  in  procuring  an  ex  parte  in- 
Ill.  141;  Smith  v.  McEnany,  170  It  depends  on  circumstances.  Twen- 
Mass.  26,  48  N.  E.  781,  64  Am.  St.  ty  inches  might  be  a  great  deal  in 
Rep.  272,  in  which  latter  case  the  the  crowded  streets  of  a  city,  but 
landlord  allowed  a  wall  to  be  built  wholly  insignificant  if  the  boundary 
encroaching  on  the  premises.  of  a  Texas  ranch."     Obviously,  hov/- 

88  Smith  V.  McEnany,  170  Mass.  ever  trifling,  the  encroachment 
26,  48  N.  E.  781,  64  Am.  St.  Rep.  272,  would  be  a  trespass,  though  not  an 
where  it  Is  said,  per  Holmes,  J.,  that   eviction. 

"when  the  tenant  proves  a  wrong-  *o  See  Osmers  v.  Furey,  32  Mont, 
ful  deforcement  by  the  landlord  581,  81  Pac.  345;  Newton  v.  Allin,  1 
from    an    appreciable    part    of    the   Q.  B.  518. 

premises,  no  inquiry  is  open  as  to  4i  McClurg  v.  Price,  59  Pa.  420.  n 
the  greater  or  less  importance  of  the  Am.  Dec.  356;'  Stiger  v.  Monroe.  109 
parcel  from  which  the  tenant  is  de-  Ga.  457,  34  S.  E.  595;  Etheridge  v. 
forced.  Outside  the  rule  de  mini-  Osborne,  12  V7end.  (N.  Y.)  529;  Van- 
mis,  the  degree  of  interference  wiih  derpool  v.  Smith,  4  Abb.  Dec.  (N. 
the  use  and  enjoyment  of  the  prem-  Y.)  461;  Hawkes  v.  Orton,  5  Adol.  & 
ises  is  important  only  in  the  case  of  E.  £67.  But  see  Walker  v.  Tucker, 
acts    not    physically    excluding    the   70  111.  527. 

tenant,  but  alleged  to  have  an  equal-  The  landlord's  failure  to  remove 
ily  serious  practical  effect."  No  sug-  certain  chattels  belonging  to  him 
gestion  is  here  made  as  to  what  con-  after  the  tenant's  contract  for  their 
stitutes  "an  appreciable  part  of  the  use  has  expired  is  not  an  eviction, 
premises"  as  distinguished  from  a  Baumgardner  v.  Consolidated  Copy- 
part  not  appreciable.  ing  Co.,  44  111.  App.  74. 

30  Collins  V.  Karatopsky,  36  Ark.  In  Birckhead  v.  Cummins,  33  N.  J. 
316,  where  likewise  a  wall  en-  Law,  44,  it  is  decided  that  no  evic- 
croaohed  on  the  premises,  and  it  was  tion  resulted  from  the  fact  that  the 
said  that  "an  eviction  depends  on  lessor,  before  the  lessee  took  pos<;es- 
the  materiality  of  the  deprivation,  sion,  removed  all  the  furniture  on 
If  trifling  and  produf^ing  no  incon-  the  premises,  for  the  rqpson  that  a 
venience,  it  should  not  be  regarded,   lessee  never  in  possession  has  merely 


§    185  BY  LANDLORD.  1269 

junction  against  the  tenant's  use  of  the  premises,  which  has  been 
regarded  as  involving  an  eviction.^^ 

(2)  Interference  with  ingress  or  egress.  The  act  of  the  land- 
lord in  placing  obstructions  in  the  way  of  the  approach  to  the 
leased  premises,  so  as  materially  to  interfere  with  the  tenant's 
use  and  enjoyment  of  the  premises,  has  been  regarded  as  an 
eviction,48  ^j^jj  h^^q  same  view  has  been  taken  of  the  act  of  the 
landlord  in  closing  up  one  of  the  two  entrances  to  the  demised 
premises.^^  There  is  r  '  an  eviction  if  the  lessor  locks  out 
the  tenant  while  the  latter  is  temporarily  absent  from  the  prem- 
ises.^^     The  exclusion  of  persons  seeking  to  enter  the  premises 

an    interesse    termini,    and    cannot,  774.     But   in   Meeker  v.    Spalsbury, 

therefore,    be   evicted.      Presumably  66   N.   J.    Law,    60,    48   Atl.    1026,   It 

even  if  he  had  taken  possession,  the  was  held  that  an  obstruction  of  the 

removal  of  the  furniture  would  not  passageway  leading  to   the   demised 

have  been  an  eviction.     See  ante,  at  premises   was  not  an   eviction,   and 

note  11.  in    Manchester,    S.    &    S.    R.    Co.    v. 

42  Pfund  V.  Herlinger,  10  Phila.  Anderson  [18981  2  Ch.  394,  It  was 
(Pa.)  13,  where  the  injunction  was  held  that  a  temporary  inconvenience 
against  the  use  of  the  premises  for  caused  by  the  landlord's  interfer- 
a  particular  purpose.  The  fact  that  ence  with  the  access  to  the  prem- 
the  landlord  obtained  the  injunction  ises  by  blocking  up  the  street  and 
in  order  to  obtain  a  construction  of  also  a  private  right  of  way  was  not 
the  lease  as  to  the  tenant's  right  to  a  breach  of  the  covenant  for  quiet 
use   the   premises   for   this   purpose  enjoyment. 

was  regarded  as  immaterial.  And  44  Hamilton  v.  Grayblll,  19  Misc. 
see  Friend  v.  Oil  Well  Supply  Co.,  521,  43  N,  Y,  Supp.  1079.  See  ante, 
165  Pa.  652,  30  Atl.  1134.  note  84. 

43  Hall  V.  Irvin,  78  App.  Div.  107,  4b  Williams  v.  Yoe,  22  Tex.  Civ. 
79  N.  Y.  Snnp.  614;  Hoeveler  v.  App.  446,  54  S.  W.  614  (semble).  So 
Fleming,  91  Pa.  322  (dictum).  In  in  Morgan  v.  Short,  13  Misc.  279,  34 
Pridgeon  v.  Excelsior  Boat  Club,  68  N.  Y.  Supp.  10,  a  finding  of  eviction 
Mich.  326,  33  N.  W.  502,  it  was  held  was  held  to  be  justified  when  the 
that  the  lessor  of  a  boat  house  was  landlord  placed  a  padlock  on  the 
guilty  of  an  eviction  when  he  kept  door  after  the  tenant  had  removed 
a  vessel  moored  so  as  to  cut  off  all  from  the  premises.  And. see  Lester 
approach  to  the  boat  house  from  the  v.  Griflln,  57  Misc.  628,  108  N.  Y. 
water.  And  so  there  was  held  to  be  Supp.  580;  ante,  note  19  a.  In  Gol- 
an eviction  when  the  lessor  deposits  burn  v.  Morrill,  117  Mass.  "^2,  19 
lumber  in  the  street  in  fronfbf  the  Am.  Rep.  415,  it  was  held  that  there 
premises  for  a  period  of  three  was  a  partial  eviction  when  the 
months  so  as  to  deprive  the  lessee  of  landlord  removed  the  tenant's  goods 
frpe  access  to  the  premises.  Edmi-  from  one  of  the  rooms  leased  and 
son  V.  T;Owry,  3  S.  D.  77,  52  N.  W.  locked  the  doors  of  that  and  another 
583,  17  L.  R.  A.  275,  44  Am.  St.  Rep.   room,  carrying  away  the  key. 


1270  EVICTION.  §   185 

at  the  tenant's  request  in  order  to  make  necessary  repairs,  fol- 
lowed by  the  tenant's  removal,  has  also  been  held  to  involve  an 
eviction.'*^'^ 

Such  an  interference  with  access  or  ingress  to  the  prem- 
ises, unless  the  effect  is  to  deprive  the  tenant  of  the  actual  pos- 
session of  the  whole  or  part  of  the  premises,  can,  it  seems  clear, 
constitute  an  eviction  only  if  followed  by  the  tenant 's  relinquish- 
ment of  possession  on  account  thereof,  in  accorda.nce  with  the 
rule  before  referred  to.'*''  The  tenant  cannot  retain  posses- 
sion of  the  whole  premises  and  allege  a-n  eviction  from  part 
merely  because  his  access  thereto  is  interfered  with.  Some 
courts,  however,  have  adopted  a  different  view.'*''' 

(3)  Deprivation  of  rights  appurtenant  to  leasehold.  There 
is  an  English  decision  to  the  effect  that  the  landlord's  inter- 
ference with  an  easement  appurtenant  to  the  land  cannot  effect 
an  eviction  which  will  constitute  a  defense  to  a  claim  for  rent, 
since  the  rent  issues  out  of  the  demised  premises  alone.-is  This 
seems  most  questionable,  if  such  interference  substantially  and 
permanently  affects  the  tenant's  enjoyment  of  the  land  itself 
and  he  consequently  abandons  possession,  and  there  are  deci- 
sions in  this  country  of  an  opposite  tendency .^^ 

4Ba  Bergman  v.  Papia,  58  Misc.  533,  depriving  the   lessee   of  the  use  of 

109  N.  Y.  Supp.  856.  a  window  for  advertising  purposes, 

46See  ante,  §  185  d.  which  was  given  him  by  the  lease. 

47  See  ante,  at  note  34,  In   Fuller  v.   Ruby,   76   Mass.    (10 

48  Williams  v.  Hayward,  1  El.  &  Gray)  285,  it  is  said  that  the  act 
El.  1040,  where  the  easement  in  of  the  landlord  in  preventing  a  ten- 
question  was  the  right  to  use  a  rail-  ant  from  using  the  roof  of  the  tene- 
way.  In  Coleman  v.  Reddick,  25  U.  ment  house  for  drying  clothes  might 
C.    C.    P.    579,    a    like    decision    was  be  an  eviction. 

rendered  as  to  a  right  to  draw  wa-         In  Hall  v.  Irvin,  78  App.  Div.  107, 

ter  from  a  pond  for  power  purposes.  79  N.  Y.  Supp.  614,  the  tenant's  de- 

49  In  West  Side  Sav.  Bank  v.  New-  privation  of  the  use  of  the  water 
ton  76  N.  Y.  616,  it  was  decided  closet  and  wash  basins  in  the  office 
that  the  act  of  the  landlord  in  cut-  building  in  which  the  room  leased 
ting  off  the  city  water  supply  might  was  located  was  regarded  as  suffl- 
effect   an   eviction.  cient  to  constitute  an  eviction. 

In  Wltte  V.  Qulnn,  38  Mo.  App.  681,  In  Peck  v.  Hiler,  31  Barb.  (N.  Y.) 
the  landlord's  act  in  building  over  117,  it  seems  to  be  assumed  that  the 
a  yard  which  the  tenant  had  a  right  tenant's  deprivation  of  the  use  of 
to  use  was  regarded  as  an  eviction,  a  railroad  on  adjoining  land  might 
as  was,  apparently,  in  O'Neill  v.  result  in  an  eviction,  but  it  was  de- 
Manget,  44  Mo.  App.  279,  his  act  in   cided  that  it  did  not  in  fact  so  ro- 


§   185  BY  LANDLORD.  1271 

It  has  been  decided  that  the  tenant's  deprivation  of  a  privi- 
lege previously  enjoyed  by  him  in  connection  with  the  demised 
premises,  merely  under  a  license  given  separately  and  apart 
from  the  lease,  cannot  justify  a  claim  of  eviction,^^*'  and  in  no 
case,  it  seems,  should  an  interference  with  the  tenant's  right  to 
make  a  specified  use  of  premises  adjoining  those  leased  be  re- 
garded as  an  eviction,  unless  the  tenant  relinquishes  possession 
of  a  part  or  the  whole  of  t'  -  latter,^!  though  there  are  decisions 
apparently  to  the  contrary, 

(4)  Acts  of  omission.  An  eviction  by  the  landlord  is  prop- 
erly an  affirmative  act  on  his  part,  an  act  of  commission,  involv- 
ing an  interruption  of  or  interference  with  the  tenant's  pos- 
session or  enjoyment  of  the  premises.  It  is,  in  its  nature,  a 
wrongful  act  which  involves  a  breach  of  the  covenant  of  quiet 
enjoyment.  Unfortunately,  the  courts  have  occasionally  lost 
sight  of  the  true  nature  of  an  eviction  in  this  respect.  Some 
courts  have,  for  instance,  applied  the  term  to  a  mere  failure  of 
the  tenant  to  perform  covenants  which  he  may  have  made,  the 
nonperformance  of  which  renders  the  premises  less  desirable  for 
some  particular  purposes.  Thus,  breaches  by  a  landlord  of  cov- 
enants by  him  to  furnish  electric  power  for  use  on  the  prem- 
ises,^^  to  furnish  heat,^**  and  to  furnish  proper  elevator  service,'^" 
have  each  been  referred  to  as  constituting  an  eviction.     Occa- 

sult,   since   the   tenant   had   already  as  agreed  for  the  enjoyment  Ox   tiiu 
rendered    it    incapable    of    use.     In  license, 
other  words,  there  was  no  substan-  bi  See  ante,  §  185  d. 
tlal    interference    with    the    tenant's  52  See  ante,  at  note  34. 
enjoyment.     In  Eschmann  v.  Atkin-  53  Brown  v.  Holyoke  Water-Power 
son,  91  N.  Y.  Supp.  319,  evidence  that  Co.,  152  Mass.  463,  25  N.  E.  966,  9  L. 
the  servant  of  the  tenant  of  an  apart-  R.  A.  509,  23  Am.  St.  Rep.  844. 
ment  was  arbitrarily  excluded  from  54  Harmony  Co.  v.  Rauch,   64    111. 
the  use  of  the  elevator  was  regarded  App.  386;  Bass  v.  Rollins,  63  Minn, 
as  sufficient  to  sustain  a  finding  of  226,   65  N.  W.   348;   Jackson  v.   Pat- 
au    eviction.     See,     also,     cases     re-  erno,   58  Misc.  201,  108  N.  Y.  Supp. 
ferred  to  ante,  note  34,  and  post,  §  1073. 

185  f  (8).  55  Lawrence    v.    Mycenlan    Marble 

soLynch   v.    Baldwin,    69    111.    210.  Co.,  1  Misc.  105,  20  N.  Y.  Supp.  698; 

In  this  case,  as  a  matter  of  fact,  the  Ardsley  Hall  Co.  t.  Sirrett,  86  N.  Y. 

deprivation  of  such  use  was  not  by  Supp.   792.     See  Delmar   Inv.   Co.  v. 

the  tenant's  landlord  but  was  by  the  Blumenfeld,  118  Mo.  App.  308,  94  S. 

owner  of  the  adjoining  land  by  rea-  W.  823. 
son  of  the  landlord's  failure  to  pay 


1272  EVICTION.  §  185 

sionally  the  expression  has  even  been  applied  to  an  undesirable 
physical  condition  of  the  premises,  not  the  result  of  any  act  or 
omission  of  the  landlord,  merely  because  the  tenant  has,  by  stat- 
ute, the  right  to  relinquish  possession  and  refuse  to  pay  rent  if 
such  condition  is  not  removed.^^  The  mere  fact  that  the  tenant 
is  thus  given  the  right  to  refuse  to  pay  rent  on  account  of  such 
''untenantable"  condition  of  the  premises  does  not  impose  upon 
the  landlord  any  obligation  to  remedy  that  condition,  as  appears 
from  the  fact  which,  it  is  conceived,  is  not  open  to  question,  that 
the  tenant  has  no  right  of  action  agaiost  the  landlord  for  fail- 
ure to  remove  such  condition  unless  he  has  entered  into  a  cov- 
enant to  that  effect.  This  being  so,  the  statement  that  the  ex- 
istence of  such  a  condition  constitutes  an  eviction  by  the  land- 
lord is  equivalent  to  a  statement,  it  would  seem,  that  the  land- 
lord may  be  guilty  of  an  eviction  because  he  fails  to  do  what  he 
is  under  no  obligation  to  do.  Even  when  the  tenant  has  entered 
into  a  covenant,  the  failure  to  perform  which  results  in  an  un- 
tenantable condition,  it  is  not  perceived  how  either  the  breach  of 
covenant,  or  the  resulting  untenantable  condition,  or  both  to- 
gether, can  be  regarded  as  constituting  an  eviction. 

This  use  of  the  term  ''eviction,"  as  applying  to  cases  in  which 
the  tenant  is,  by  force  of  statute  or  otherwise,  regarded  as  justi- 
fied in  leaving  the  premises  and  refusing  to  pay  rent,  owing  to 
their  "untenantable"  condition,  as  it  is  ordinarily  expressed, 
is  no  doubt  a  result  of  the  fact  that  such  right  in  the  tenant 
also  exists  in  cases  of  actual  interference  by  the  landlord  with 
the  tenant's  enjoyment  of  the  premises,  a  "constructive  evic- 
tion" properly  so  called.  Such  extended  application  of  the 
term  can,  however,  but  result  in  obscuring  the  real  nature  of  an 
eviction,  as  being  a  wrongful  act  and  not  a  mere  failure  to  act, 

56  See  e.  g.,  Tallman  v.  Murphy,  and  terminate  his  obligation  to  pay 
120  N.  Y.  345,  24  N.  E.  716;  Sully  v.  rent."  But  here  there  was  a  nuls- 
Schmltt,  147  N.  Y.  248,  41  N.  B.  514,  ance  in  the  cellar  under  the  premises 
49  Am.  St.  Rep.  659.  So  in  Alger  v.  leased,  and  the  court  was  merely 
Kennedy,  49  Vt.  109,  24  Am.  Rep.  stating  that  such  a  condition  of  ad- 
117,  it  is  said  that  "any  act  or  de-  joining  premises  constituted  an  evic- 
fault  of  the  lessor  that  renders  the  tion,  although  the  landlord  did  not 
tenement  such  as  endangers  the  life  himself  produce  the  noxious  condi- 
or  health  of  the  occupants  may  be  tion  but  merely  neglected  to  remove 
treated  as  an  eviction,  and  give  him  it. 
the  right  to  abandon  the   premises. 


§  185 


BY  LANDLORD.  1273 


rightful  or  wrongful.  In  some  cases  what  is,  it  is  submitted,  a 
more  correct  conception  of  the  nature  of  an  eviction  in  this  re- 
spect has  been  asserted.^^  Thus,  it  has  been  decided  that  the 
fact  that  the  landlord  is  guilty  of  a  breach  of  covenant  to  fur- 
nish certain  facilities  in  connection  with  the  demised  premises 
does  not  involve  an  eviction,^^  and  a  like  decision  has  been  made 
as  to  the  breach  of  a  covenant  to  repair.^o  So  the  fact  that  the 
premises  are  infested  by  vermin,  and  that  the  landlord  has  taken 
no  measures  to  remove  them,  has  been  recognized  as  not  involv- 
ing an  eviction. •'59'^ 

(5)  Occupation  by  landlord  on  tenant's  abandonment.  The 
mere  fact  that  the  tenant  has  temporarily  vacated  the  premises 
gives  the  landlord  no  right  to  resume  possession,^^  and  if  the 
latter  does  resume  possession,  with  the  effect  of  preventing  the 
tenant's  return,  this  no  doubt  constitutes  an  eviction.^i  If,  how- 
ever, the  vacation  of  the  premises  by  the  tenant  is  intended  to 
be  permanent,  if  they  are  "abandoned"  by  him,   as  it  is  fre- 

5T  "The  common-law  doctrine  of  failure  of  the  landlord  to  perform 
eylction  has  reference  to  affirmative  his  covenant  to  build  a  raceway  for 
acts  of  the  landlord  or  of  a  third  the  use  of  the  tenant  was  held  not  to 
person  under   a  title   paramount   to  be  an  eviction. 

the  landlord's.  There  must  be  a  sa  Speckels  v.  Sax,  1  E.  D.  Smith 
forcible  ouster  of  the  tenant,  or  such  (N.  Y.)  253;  Huber  v.  Ryan,  26  Misc. 
an  unlawful  interference  with  his  428,  56  N.  Y.  Supp.  185;  Hallett  v. 
beneficial  use  of  the  demised  prem-  Wylie,  3  Johns.  (N.  Y.)  44,  3  Am. 
ises  as  amounts  to  a  permanent  sub-  Dec.  457;  Wright  v.  Lattin,  38  111. 
stantial  impairment  of  it.  *  *  *  293.  "It  can  hardly  be  necessary  to 
It  seems  a  confusing  mistake  to  con-  say  that  the  failure  of  the  lessor  to 
sider  the  statute  (of  1860)  as  an  make  the  repairs  stipulated  in  the 
enlargement  of  the  law  of  eviction,  lease  would  not  in  itself  amount  to 
The  law  of  eviction  is  as  it  was  be-  constructive  eviction."  Biggs  v.  Mc- 
fore  the  statute  was  passed."  Per  Curley,  76  Md.  409,  25  Atl.  466. 
Gaynor,  J.,  in  Huber  v.  Ryan,  26  soa  Pomeroy  v.  Tyler,  9  N.  Y.  St. 
Misc.  428,  56  N.  Y.  Supp.  135.  Rep.  514;    Jacobs  v.  Morand,  110  N. 

58  In  Watts  V.  Coffin,  11  Johns.  (N.   Y.  Supp.   208. 
Y.)   495,  it  was  decided  that  the  ten-       go  Hough  v.  Brown,  104  Mich.  109, 
ant's  deprivation  by  the  landlord  of   62  N.  W.  143;    Larkin  v.   Avery,   23 
a  right  of  common  in  adjoining  land.    Conn.  304;  Chancey  v.  Smith,  25  W. 
which  was  secured  merely  by  a  cov-   Va.   404,   52  Am.  Rep.  217. 
enant  and  not  by  a  grant,  was  not       ei  See  Briggs  v.  Thompson,  9  Pa. 
an  eviction,   it  not  being  a  part  of   338;  Day  v.  Watson,  8  Mich.  535,  and 
the  thing  demised.     In  Btheridge  v.   ante,  note  45. 
Osborn,   12  Wend.    (N.  Y.)    399,  the 


1274  EVICTION.  §  185 

quently  expressed,  the  landlord  may,  it  seems,  resume  posses- 
sioii.62  Since  this  is  not  wrongful,  while  an  eviction  by  the 
landlord  is  always  a  wrongful  act  on  the  latter 's  part,  it  is  not 
proper  to  term  such  resumption  of  possession  after  the  tenant's 
abandonment  an  eviction,  though  this  has  occasionally  been 
done.63  It  may,  and  frequently  does,  result  in  a  surrender  by 
operation  of  law,  as  is  elsewhere  explained,^*  and  so  terminates 
the  right  to  subsequently  accruing  rent,  and  this  effect  on  the 
right  to  rent  constitutes  its  point  of  resemblance  to  an  eviction. 
(6)  Subsequent  lease  or  other  conveyance.  There  are  occa- 
sional dicta  and  decisions  to  the  effect  that  if  the  landlord,  dur- 
ing the  existence  of  the  tenancy,  makes  a  lease  to  another  person, 
this  effects  an  eviction  of  the  tenant.^^  These  are,  it 
is  submitted,  incorrect.  If  the  first  lease  is  still  out- 
standing and  the  second  lessee  has  notice  thereof,  which  he 
generally  has,  either  by  the  tenant's  possession  or  otherwise,  the 
second  lease  is  in  effect  nugatory  as  regards  the  first  tenant.^^ 
If,  on  the  other  hand,  the  second  lessee  has  no  notice  of  the  first 

62  Packer  v.  Cockayne,  3  G.  Greene  thorne  v.  Coursen,  18  Misc.  447,  41 
(Iowa)  111;  Haller  v.  Squire,  91  N.  Y.  Supp.  995;  Smith  v.  Maxfield, 
Iowa,  10,  58  N.  W.  921;  Kiplinger  v.  9  Misc.  42,  29  N.  Y.  Supp.  63;  Hirsch- 
Green,  61  Mich.  340,  28  N.  W.  121,  field  v.  Franks,  112  Mich.  448,  70 
1  Am.  St.  Rep.  584;  Duffy  v.  Day,  42  N.  W.  894  (semble) ;  Hall  v.  Bur- 
Mo.  App.  638;  Torrans  v.  Stricklin,  gess,  5  Bam.  &  C.  332,  per  Holroyd,  J. 
52  N.  C.  (7  Jones  L.)  50;  McKinney  In  Harrington  v.  Hall,  126  Mich.  704, 
V.  Reader,  7  Watts  (Pa.)  123;  Pier  86  N.  W.  153,  it  is  apparently  de- 
V.  Carr,  69  Pa.  326.  cided    that   a    subsequent   demise   to 

63  See  Matthews'  Adm'r  v.  Tobe-  another  person  gives  a  right  to  the 
ner,  39  Mo.  115;  Hall  v.  Burgess,  5  tenant  under  the  existing  demise  to 
Barn.  &  C.  332;  Hegeman  v.  McAr-  recover  rent  paid  by  him  in  ad- 
thur,  1  E.  D.  Smith  (N.  Y.)  147.  vance.  There  is  no  discussion  and 
That  such  resumption  of  possession  the  term  "eviction"  is  not  used. 
does  not  involve  an  eviction,  see  That  such  a  subsequent  demise  is 
Smith  v.  Billany,  4  Houst.  (Del.)  not  an  eviction,  see  Carey  v.  Bost- 
113;  State  v.  McClay,  1  Har.  (Del.)  wick,  10  U.  C.  Q.  B.  156;  Neale  v. 
520;  Humiston,  Keeling  &  Co.  v.  Mackenzie,  1  Mees.  &  W.  747. 
Wheeler,  175  111.  514,  51  N.  E.  893,  An  attempt  to  lease  to  a  third 
67  Am.  St.  Rep.  232;  Wheeler  v.  person  is  not  an  eviction.  Mills  v. 
Stevenson,  6  Hurlst.  &  N.  155.  Sampsel,    53    Mo.    360,    even    though 

64  See  post,  §  190  c.  such   person  be  a  subtenant  of  the 
ecMorris  v.  Kettle,   57  N.  J.  Law,    original    lessee.     Ogilvie   v.    Hull,    5 

218,  30  Atl.  879;  Dolton  v.  Sickel,  66    Hill  (N.  Y.)  52. 

N.   J.  Law,   492,   49  Atl.    679;    Haw-       ee  See  ante,  §  146,  at  note  1. 


c    jg5  BY  LANDLORD.  1275 

lease,  either  by  the  tenant's  possession  or  otherwise,  the  second 
lease  would  ordinarily  take  priority .^-^     In  this  latter  case  there 
is  some  slight  basis  in  precedent  for  regarding  the  making  of 
the  second  lease  as  an  eviction,  arguing  by  analogy  from  occa- 
sional decisions  in  which  it  has  been  held  that  there  is  an  evic- 
tion, constituting  a  breach  of  the  covenant  for  quiet  enjoyment 
on  a  conveyance  in  fee,  if  the  grantor  makes  a  second  convey- 
ance which  takes  priority  over  the  first  because  first  recorded.^^ 
These  latter  cases  have,  however,  been  criticized  by  high   au- 
thority,6o  and  the  view  asserted  by  them  has  been  repudiated 
by  other  courtsjo     a  lessor  or  his  transferee  has  a  perfect  right, 
during  the  continuance  of  the  term,  to  make  another  lease  to 
another  person,  such  lease  to  take  effect  either  as  a  concurrent 
lease  or  as  one  in  reversion,"^!  and  the  fact  that,  owing  to  the  first 
lessee's  failure  to  take  proper  precautions,  by  securing  posses- 
sion or  recording  his  lease,  the  second  lease  takes  precedence 
over  the  first  lease,  is  no  reason,  it  is  conceived,  for  treating  the 
second  lease  as  a  wrongful  act,  which  it  must  be  in  order  to 
constitute  an  evictionj^ 

If  the  second  lessee  ousts  the  first  lessee,  this  is  not  the  act  of 
the  lessor,  unless  he  has  connived  at  or  directed  it.  If  the  sec- 
ond lease  is  a  concurrent  lease,  such  act  on  the  part  of  the  second 
lessee  is  an  eviction  by  the  landlord,  since  such  second  lessee  is 
the  landlord,  but  if,  as  usually  is  the  case,  the  second  lease  is  a 
lease  in  reversion,  such  act  is  by  a  stranger  to  the  first  lease, 
and  is  not,  properly  speaking,  an  eviction.  But,  as  suggested 
above,  if  the  ouster  by  the  second  lessee  is  by  the  connivance 
or  direction  of  the  lessor,  then  it  may  be  regarded  as  having 
been  by  him,  and  is,  properly  speaking,  an  eviction.'^s  Occa- 
sionally an  ouster  by  the  second  lessee  has  been  regarded  as  an 
eviction  by  the  lessor  without  any  evidence  of  complicity  on  the 
part  of  the  latter,  that  is,  the  lessor  was  regarded  as  guilty  of 
an  eviction  because  he  leased  to  another,  who  took  possession.'^^ 

67  See  ante,  §  146.  at  note  4.  71;  Scott  v.  Scott,  70  Pa.  244;    Foster 

68  See   Curtis   v.    Deering,    12   Me.   v.  Woodward,  141  Mass.  160,  6  N.  B. 
499;  Maeder  v.  City  of  Carondelet,  26    853. 

Mo   112    69  Am.  Dec.  483;  Lukens  v.  7i  See  ante,  §  146  d. 

Nicholson,  4  Phila.  (Pa.)  22.  ^^  See  ante,  §  146  a,  at  notes  7.  8. 

69Rawle,  Covenants  for  Title  (5th  73  Halligan  v.  Wade,  21  111.  470,  74 

Ed.)  p.  168,  note  5.  Am.  Dec.  108. 

70  Wade  V.  Comstock,  11  Ohio  St.  74  Wright  v.   Lattin,   38    111.   293; 


1276  EVICTION.  §   185 

As  before  stated,  the  mere  leasing  does  not  properly  constitute 
an  eviction,  and  it  is  difficult  to  see  how  the  lessor  can  be  held 
responsible  for  the  act  of  the  second  lessee,  unless  he  has  ad- 
vised or  directed  it,  or,  perhaps,  has  made  the  second  lease  with 
knowledge  of  the  action  intended  by  the  second  lessee.  That 
the  lessor  is  not  responsible  for  the  act  of  one  to  whom  he  con- 
veys the  premises  in  fee  subject  to  the  lease  has  been  clearly 
decided,'''^  and  he  should  no  more  be  held  responsible  for  the  acts 
of  one  to  whom  he  conveys  a  less  interest,  be  it  an  interest  for 
life,  for  ninety-nine  years,  or  for  one  year  only.  Occasionally 
it  is  said  that  there  is  an  eviction  by  the  lessor  if  he  "puts  the 
second  lessee  into  possession,  "'"^  and  this  is  no  doubt  correct  if 
"putting  into  possession"  means  turning  out  the  prior  lessee,  or 
authorizing  the  second  lessee  so  to  do. 

The  making  of  a  subsequent  lease  by  the  landlord  to  another 
person  is  usually  the  sequence  of  an  abandonment  of  the  prem- 
ises by  the  tenant  under  the  first  lease,  and  while  in  a  few  cases 
this  is  spoken  of  as  an  "eviction"  of  the  previous  tenant,'^'^  more 
usually  it  is  regarded  as  involving  merely  an  acceptance  of  the 
tenant's  previous  relinquishment  of  possession,  thus  effecting  an 
implied  surrender,'^^  while  in  many  jurisdictions  it  has  not  even 
this  effect.  The  action  of  the  landlord  in  re-letting  after  the 
abandonment  is  not  a  wrongful  act,  and  consequently  should  not 
be  termed  an  eviction. 

If  the  tenant  expressly  or  tacitly  consents  to  the  making  of  a 
new  lease  to  another,  he  can  evidently  not  assert  that  the  mak- 
ing of  such  lease  involves  an  eviction.'^^ 

Morris  v.  Kettle,  57  N.  J.  Law,  218,  eviction,  citing  Morris  v.  Kettle,  57 

30  Atl.  879.  N.  J.  Law,  218,  30  Atl.  879,  where  it 

75  Gribbie  v.  Toms,  70  N.  J.  Law,  was  said  that  if  "the  tenant  has  va- 
522,  57  Atl.  144;  Id.,  71  N.  J.  Law,  cated  and  abandoned  the  premises, 
338,  59  Atl.  1117;  Linton  v.  Hart,  25  an  eviction  by  such  reletting  is  con- 
Pa.  193,  64  Am.  Dec.  691.  structive  merely,  and  should,  within 

76  Miller  v.  Michel,  13  Ind.  App.  the  reason  of  the  rule,  impose  upon 
190,  41  N.  B.  ^Q7;  Schneider  v.  Pat-  the  landlord  no  other  penalty  than 
terson,  38  Neb.  680,  57  N.  W.  398.  that  of  crediting  the  tenant  with  the 

77  Hall  V.  Burgess,  5  Bam.  &  C.  sum  so  earned  by  the  property  dur- 
332;  Matthews  v.  Tobener,  39  Mo.  ing  the  term."  Compare  Meeker  v. 
115;  Rice  v.  Dudley,  65  Ala.  68.  In  Spalsbury,  66  N.  J.  Law,  60,  48  Atl. 
Dolton  V.  Sickel,  66  N.  J.  Law,  492,  1026. 

49  Atl.  679.  it  was  decided  that  leR-S-        78  See  post,  §  190  C. 

ing  to  another  after  abandonment  by        7n  Stewart  v.  Sprague,  71  Mich.  50, 

the    former    tenant    constituted    an    38  N.  W.  673;   Id.,  76  Mich.  184,  42 


§    1S5  BY  LANDLORD.  1277 

There  is  one  decision  to  the  effect  that  the  making  of  a  con- 
veyance in  fee  by  the  landlord,  without  any  clause  therein  recog- 
nizing the  rights  of  the  tenant  under  the  existing  lease,  involves 
an  eviction  of  the  tenant.*^"^  The  same  considerations  are  here 
applicable  as  in  connection  with  the  theory  of  an  eviction  by  a 
subsequent  lease.^i  It  seems  never  to  have  been  suggested,  ex- 
cept in  this  one  case,  that  a  conveyance  in  fee  by  a  lessor,  with- 
out mention  of  an  outstanding  lease,  effects  an  eviction,  and  such 
a  conveyance  must  have  been  of  frequent  occurrence.  There  is 
no  reason,  it  is  submitted,  why  an  eviction  should  result  from 
the  act  of  the  landlord  in  doing  what  he  has  a  perfect  right  to 
do,  that  is,  in  transferring  his  reversionary  interest,  and  no 
further  interest  can  pass  by  the  conveyance  if  the  grantee  has 
notice,  actual  or  constructive,  of  the  lease.  If  he  has  no  such 
notice,  the  conveyance  presumably  takes  priority  over  the  lease, 
but  this  is  owing  to  the  tenant's  failure  to  protect  his  interest, 
either  by  taking  possession  or  by  recording  the  lease.^^ 

(7)  Unaiithorizsd  demand  for  possession.  It  has  occasion- 
ally been  decided  that  if  the  landlord  notifies  the  tenant,  before 
the  termination  of  the  tenancy,  to  relinquish  the  possession,  and 
the  tenant  complies  with  the  demand,  this  constitutes  an  evic- 
tion.s^     This   view   is   not,    however,    entirely    satisfactory.     An 

N.  W.  1088;    Ogden  v.   Sanderson,  3  not  an  eviction  by  the  landlord.  Sul- 

E.  D.  Smith   (N.  Y.)   166;   Pausch  v.  livan  v.   Beardsley,  55   Cal.   608. 

Guerrard,    67    Ga.    319;    Thomas    v.  83  starkweather    v.     Maginnis,    98 

Drennan,  112  Ala.   G70.   20    So.   848;  m.  App.  143;   Id.,  196  111.  274,  63  N. 

Lettick  V.  Honnold,  63  111.  335.  e.  692;    Tarpy  v.  Blume,   101   Iowa, 

so  Mathews     v.     People's     Natural  469,  70  N.  W.  620;  Greton  v.  Smith, 

Gas  Co.,  179  Pa.  165,  36  Atl.  216   (oil  33   n.   Y.   245    (semble);    Watson   v. 

and  gas  lease).  Moggey,    15    Manitoba,    241.     So    in 

81  See  ante,  notes  65-75.  Jennings  v.  Bond,  14  Ind.  App.  282, 

82  That  such  a  conveyance  does  42  N.  E.  957,  where  the  demand  for 
not  involve  an  eviction,  see  Gribbie  possession  took  the  form  of  a  suit 
y.  Toms,  70  N.  J.  Law,  522,  57  Atl.  therefor  to  which  the  tenant  yielded. 
144;  Id.,  71  N.  J.  Law,  338,  59  Atl.  In  Amsden  v.  Atwood,  69  Vt.  527,  38 
1117;  Blythe  v.  Pratt,  62  Miss.  707;  Atl.  263,  it  was  decided  that  if  a 
Life  v.  Secrest,  1  Ind.  512.  landlord  orders  his  tenant  to  vacate 

On  the   same  principle,    the  land-  before   the    expiration    of    the   term, 

lord's  assent  to  a  decree  in  favor  of  and  the  tenant  does  so,  the  landlord 

a    third    person,    which    could    not  is  liable  for  the  value  of  the  unex- 

alTect  the  lessp«  because  he  took  the  pired  portion  of  the  term.     The  court 

lease  without  notice  of  the  suit,  is  does  not  call  this   an   eviction,  but 


1278  EVICTION.  §  185 

eviction  involves  a  wrongful  act  upon  the  part  of  tlie  landlord, 
but  there  is  no  legal  wrong  involved  in  his  making  this  unjusti- 
fiable demand  for  possession,  however  morally  improper  it  may 
be,  and  the  fact  that  the  tenant  acts  as  if  it  were  justified  can- 
not well  change  its  character  in  this  respect.  The  case  is  like 
that  of  any  other  unjustifiable  demand  for  the  possession  of 
property  to  which  the  possessor  is  foolish  enough  to  yield.  If 
a  grantor  in  fee  were  to  demand  possession  of  the  land  granted, 
or  even  if  he  were  to  sue  therefor,  and  the  grantee  were  to  yield 
possession,  there  is  no  authority  for  saying  that  this  is  an  evic- 
tion, giving  a  right  of  action  on  the  grantor's  covenant  for  title, 
and  it  does  not  seem  that  under  the  circumstances  a  lessee  could 
sue  his  lessor  on  the  covenant  for  quiet  enjoyment,  which  he 
should  be  able  to  do  if  such  transaction  constitutes  an  eviction. 
We  would  prefer  to  regard  this  as  a  case  of  implied  surrender, 
based  on  a  relinquishment  of  possession  to  the  landlord  by  agree- 
ment of  the  parties,  and  such  it  seems  to  have  been,  in  other 
cases,  decided  to  be.^* 

Somewhat  similar  to  the  cases  above  criticised  is  one  in  which 
the  landlord,  having  the  right  to  terminate  the  tenancy  when  he 
desired  to  put  an  end  to  the  use  of  the  premises  for  the  par- 
ticular purpose  for  which  they  were  used  by  the  tenant,  obtained 
the  premises  from  the  tenant  by  falsely  stating  to  the  latter  that 
such  was  his  desire,  this  being  regarded  as  an  eviction  by  the 
landlord.*^     We  would  prefer  to  regard  this  as  a  case  of  fraud.^^ 

presumably  that  is  what  Is  meant.  60  Pac.  1009,  82  Am.  St.  Rep.  749. 
The  authorities  cited  do  not  seem  to  Here  the  landlord  falsely  stated  that 
sustain  the  decision.  That  a  wrong-  he  no  longer  desired  the  premises  to 
lul  demand  for  possession,  acceded  be  used  for  hop  culture,  and  after 
to  by  the  tenant,  does  not  Involve  an  thus  obtaining  possession  used  them 
eviction,  is  decided  in  Greenberg  v.  himself  for  that  purpose.  The  ac- 
Murphy,  26  Ohio  Cir.  C.  R.  359.  tion  was  for  damages. 

In  Lierz  v.  Morris,  19  Pa.  Super.  se  In  Davis  v.  Schweikert,  130  Cal. 
Ct  73.  it  was  apparently  decided  143,  62  Pac.  411,  the  lessee  covenant- 
that,  if  the  lessor  induces  the  lessee  ed  to  yield  possession  in  case  the 
to  leave  the  premises  by  false  rep-  premises  were  sold,  and  the  lessee, 
resentalions  that  the  lessor's  estate  having  yielded  possession  upon  the 
has  come  to  an  end,  the  lessee  may  transfer  of  the  property  by  the  land- 
recover  damages  as  for  an  eviction,   lord,  afterwards  brought  suit  on  the 

84  See  post,  §  190  c,  at  notes  151-  ground  that  the  transfer  was  merely 
■^^^  colorable  for  the  purpose  of  depriv- 

8B  Salzgeber  v.  Mickel,  37  Or.  216,   ing   him    of    possession.     Here   the 


§   185  BY  LANDLORD.  1279 

(8)  ^Injurious  conditions  on  adjoining  premises.  The  ques- 
tion whether  acts  of  the  landlord  in  improving  or  utilizing  in  a 
particular  way  premises  belonging  to  him  adjoining  the  prem- 
ises leased,  or  failing  so  to  utilize  them,  can  constitute  an  evic- 
tion, when  they  result  in  the  tenant's  relinquishment  of  posses- 
sion, involves  a  number  of  considerations. 

There  is,  as  before  stated,  a  general  rule  that  a  grantee  or 
lessee  is  entitled  to  an  easement  in  land  retained  by  the  grantor 
or  lessor  corresponding  to  a  pre-existing  quasi  easement,^'^  and 
any  utilization  by  the  lessor  of  land  retained  by  him  in  such  a 
way  as  to  interfere  with  the  lessee's  enjoyment  of  such  an  ease- 
ment may  well  be  regarded  as  a  constructive  eviction.  Thus, 
if  one  makes  a  lease  of  land  on  which  there  is  a  building,  which 
depends  for  support  on  a  building  on  adjoining  land  belonging 
to  the  lessor,  an  easement  of  support  is  created  in  favor  of  the 
leased  property ,^^  and  any  interference  by  the  lessor  with  such 
easement  may  well  be  regarded  as  an  eviction,  if  this  affects  the 
lessee's  enjoyment,  and  he  relinquishes  possession  on  account 
thereof.^^*^  The  same  would  be  the  case  if  there  were  an  express 
grant  of  an  easement  by  the  lessor  to  the  lessee.  Furthermore, 
in  some  jurisdictions  at  least,  the  doctrine  that  a  grantor  can- 
not derogate  from  his  own  grant  may  apply  so  as  to  create  in 
the  lessee  an  easement  in  adjoining  property  retained  by  the 
grantor,  restricting  the  uses  of  the  latter  to  such  as  may  be 
made  without  interfering  with  the  use  of  the  premises  leased 
for  the  purpose  for  which  they  were  leased,^^  and  a  use  of  such 
adjoining  property  in  another  way  might  so  interfere  with  the 
use  of  the  premises  leased  as  to  justify  the  lessee  in  relinquish- 
ing possession  and  asserting  an  eviction. 

The  general  rule  in  this  country  is  that  there  is  no  implied 
grant,  upon  a  conveyance  or  lease  of  premises,  of  an  easement  to 
have  light  and  air  pass  without  interruption  over  adjoining  land 
retained  by  the  grantor  or  lessor,^*^  and  consequently  an  evic- 

term  "eviction"  is  not  used,  and  the  N.  Y.  263,  36  N.  E.  1059,  post,  note 

action  appears  to  be  rather  one  for  217. 

deceit.  ^s  Grosvenor  Hotel  Co.  v.  Hamilton 

87  See  1  Tiffany,  Real  Prop.  §  317,  [18941  2  0.  B.  836.  See  ante,  §  128, 
and  ante,  §  128,  at  notes  21-31.  at  notes  33,  34. 

88  See  ante,  §  128  a,  at  note  29.  oo  See  ante,  §  133.    See,  also,  Keat- 
88a  Compare  Snow  v.  Pulitzer,  142    ing  v.  Springer,  146  111.  481,  34  N.  E. 


128'J  EVICTION.  §  185 

.» 
tion  cannot  usually  be  asserted  by  a  lessee  because  his  lessor  im- 
proves adjacent  land  in  such  a  way  as  to  cut  off  the  light  and 
air.^i  In  the  case  of  a  lease  of  a  room  in  a  building,  however, 
light  and  air  for  which  room  must  necessarily  pass  over  another 
part  of  the  building,  a  different  rule  might  possibly  obtain,  and 
an  obstruction  of  the  light  or  air  by  the  landlord  be  regarded  as 
an  eviction,  if  the  tenant  relinquishes  possession  on  account 
thereof.92 

Without  interfering  with  any  easement  created  by  express  or 
implied  grant,  the  landlord  may  create  such  a  state  of  things 
upon  adjacent  or  neighboring  premises  that  the  tenant  is  justi- 
fied in  abandoning  them,  thus  effecting  an  eviction.  Such  is  the 
case  if  the  landlord  discharges  water,  dirt  or  filth  from  adjoin- 
ing premises  on  those  leased  to  such  an  extent  that  the  con- 
tinued occupation  by  the  tenant  is  rendered  seriously  uncomfort- 
able or  unhealthy ,^3  or  if  he  creates  a  noise  and  vibration  by 
operations  on  the  adjoining  premises  with  like  results.^^     So  in 

805,  22  L..  R.  A.  544,  37  Am.  St.  Rep.  So  in  Jackson  v.  Eddy,  12  Mo.   209, 

l75;   1  Tiffany,  Real  Prop.  §  317.  the  tenant  of  a  store  was  lield  to  be 

91  Keating  v.  Springer,  146  111.  481,  justified  in  leaving  when  his  goods 
34  N.  E.  805,  22  L.  R.  A.  544,  37  Am.  were  continually  being  damaged  by 
St.  Rep.  175;  Royce  v.  Guggenheim,  drippings  from  goods  stored  by  the 
106  Mass.  201,  8  Am.  Rep.  322;  landlord  on  an  upper  floor.  And 
Solomon  v.  Fantozzi,  43  Misc.  61,  86  see  Alger  v.  Kennedy,  49  Vt.  109,  24 
N.  Y.  Supp.  754;  Palmer  v.  Wetmore,  Am.  Rep.  1171,  a  case  of  water  in  a 
4  N.  Y.  Super.  Ct.  (2  Sandf.)  316;  cellar  below  the  premises  leased,  re- 
Myers  V.  Gemmel,  10  Barb.   (N.  Y.)  ferred  to  ante,  note  56. 

537;  Johnson  v.  Oppenheim,  12  Abb.  9*  See  Coope  v.  Kollstade,  33  Misc. 

Pr.  (N.  S.)  454,  43  How.  Pr.  (N.  Y.)  113,  67  N.  Y.  Supp.  181,  where  it  was 

433;    Dimmock  v.  Daly,   9  Mo.   App.  held  to  be  for  the  jury  whether  the 

354.     But  see  dictum  to  the  contrary  noise  from  a  pump  used  by  the  lessor 

in  Hazlett  v.  Powell,  30  Pa.  293,  with  on  adjoining  premises  "was  a  nuis- 

which    compare   Rennyson's   Appeal,  ance  so  as  to  effect  an  eviction."     In 

94  Pa.  147,  89  Am.  Rep.  777.  Wade  v.  Herndle,  127  Wis.  544,  107 

92  See  ante,  §  133,  at  notes  73-77.  N.  W.  4,  it  was  held  that  an  eviction 
In  Herpolsheimer  v.  Funke,  1  Neb.  occurred  when  the  tenant  was  com- 

Unoff.  471,  95  N.  W.  688,  it  is  decided  pelled    to    leave    by    the     vibration 

that   the   action   of   the   landlord   in  caused  by  the  use  of  adjoining  prem- 

placing   an   obstruction    In    front   of  ises,   belonging  to   the   same   lessor, 

show   windows    in   the   part    of   the  for    automobile    purposes.     In     this 

building  leased  constituted  an  evic-  case  the  lease  of  the  adjoining  prem- 

tion.  is^s  '^^s  the  last  one  made,  and  it 

93  Sully  V.  Schmitt,  147  N.  Y.  248,  was  held  that  the  landlord's  responsi- 
41  N.  E.  514,  49  Am.  St.  Rep.   659.  bility  for  the  vibration  depended  on 


§  185  BY  LANDLORD.  l28l 

the  case  of  the  lease  of  an  apartment  in  a  bnildmg,  if  the  lessor 
fails  to  properly  manage  or  repair  pipes,  drains  av  other  plumb- 
ing in  other  parts  of  the  building  within  his  control,  so  as  ser- 
iously to  affect  the  enjoyment  of  the  leased  premises,  and  the 
tenant  leaves  on  account  thereof,  there  is,  it  has  been  decided, 
a  constructive  evietion.^'*''^  The  condition  on  adjoining  premises 
which,  when  created  by  the  landlord,  may  thus  result  in  an  evic- 
tion, has  been  spoken  of  as  a  "  nuisance,  "^^  and  this,  it  seems, 
is  a  proper  standard  by  which  to  determine  whether  such  a  condi- 
tion may  so  result ;  that  is,  if  the  condition  is  such  that  it  would 
constitute  a  nuisance  as  against  a  stranger,  had  he  been  occu- 
pying the  premises  leased,  it  is  a  cause  for  abandonment  of  such 
premises  by  one  who  occupies  as  tenant  under  the  person  creat- 
ing the  condition.  There  is,  however,  a  decision,  though  not  by 
the  highest  court  of  the  state,  that  if  one  who  has  leased  a  part 
of  a  building  for  a  florist's  shop  thereafter  leases  another  part 
for  a  laundiy,  which  would  render  it  impossible  to  maintain  the 

whether    this    was    a    necessary    or  ference    with    the    beneficial    enjoy- 

usual  result  of  their  use  for  an  auto-  ment  thus  caused  is  merely  an  iso- 

mobile    shop.     Presumably,   the   sec-  lated  occurrence  and  not  long  con- 

ond  lease  was  made  with  knowledge  tinued.     Pinck    v.    Rogers,   30   Misc. 

of  the  intended  use,  but  this  is  not  123,  61  N.  Y.  Supp.  866. 
stated.  S'iaMcCurdy  v.  Wyckoff,   73  N.   J. 

In  Donovan  v.  Koehler,  119   App.  Law,  368,  63  Atl.  992;  Bradley  v.  De 

Div.    51,    103    N.    Y.    Supp.    935,    the  Goicouria,  12   Daly    (N.  Y.)    393,   67 

maintenance  of  a  bowling  alley  un-  How.  Pr.  76;  St.  Michael's  Protestant 

der  the  leased  premises  all  day  and  Episcopal    Church    v.     Behrens,    10 

all  night  so  as  seriously  to  interfere  N.  Y.   Civ.  Proc.  R.   181;    Lathers  v. 

with    their    enjoyment    by    the    les-  Coates,  18  Misc.  231,  41  N.  Y.  Supp. 

sees  was  held  to  constitute  an  evic-  373;  Marks  v.  Dellaglio,  56  App.  Div. 

tion.  299,  67  N.  Y.  Supp.  736;  Id.,  32  Misc. 

In  McLaughlin  v.  Bohm,  20  Misc.  94,  65  N.  Y.  Supp.  502.     See  Novem- 

338,  45  N.  Y.  Supp.  745,  it  was  held  ber  v.  Wilson,  49  Misc.  533,  97  N.  Y. 

that  the  operation  of  a  properly  con-  Supp.  989. 

structed   pump   in   the   cellar   of   an       95  Sully  v.  Schmitt,  147  N.  Y.  248, 

apartment  house  did  not  justify  the  41  n.  E.  514,  49  Am.  St.  Rep.  659; 

tenant  of  an   apartment   in   leaving,  Coope  v.  Kollstade,  33  Misc.  113,  67 

though  the  pump  was  audible  in  the  n.  Y.  Supp.  ISl;   Marks  v.  Dellaglio, 

apartment,    the    lower   court   having  56  App.  Div.  299,  67  N.  Y.  Supp.  736; 

found  that  there  was  no  particular  id.,  32  Misc.  94,  65  N.  Y.  Supp.  502; 

vibration  caused  by  the  pump.  McCurdy  v.  Wyckoff,  73  N.  J.  Law^ 

There  is  no  eviction  if  the  inter-  368,  63  Atl.  992. 

L.  and  Ten.  81. 


1282  EVICTION.  §  185 

florist's  shop,  he  is  guilty  of  a  constructive  eviction,  alt&^ough  the 
laundry  does  not  constitute  a  nuisance.^*^ 

There  may  be,  it  has  been  held,  an  eviction  of  the  tenant  of 
part  of  a  building  if  he  is  compelled  to  leave  by  the  use  of  other 
parts  of  the  building,  with  the  la.ndlord's  consent,  for  purposes 
of  prostitution  or  gambling,  or  for  other  purposes  calculated  to 
cast  disrepute  upon  tenants  of  the  building,  and  to  render  it  an 
unfit  place  for  residence  or  the  conduct  of  business.^"^  Such  use 
may  be  by  the  landlord  himself,  or  by  other  persons  with  his 
permission,  during  his  possession  of  such  other  parts,  or  it  may 
be  by  persons  to  whom  he  has  leased  such  other  parts  with 
knowledge  that  they  will  make  such  use  thereof.  The  doctrine 
of  these  cases  has,  it  is  true,  been  criticised,^^  but  it  accords 
with  the  principle,  suggested  by  the  cases  above  referred  to, 
that  any  use  of  adjoining  premises  by  the  lessor  which  can  be 
regarded  as  a  nuisance  will,  if  it  results  in  the  tenant's  relin- 
quishment of  possession,  constitute  an  eviction,  and  it  seems  to 
provide  but  a  proper  degree  of  protection  to  the  tenant.  Such 
improper  use  of  adjoining  premises  by  other  tenants  of  the  same 
landlord  is  not,  however,  sufficient  to  constitute  an  eviction, 
although  followed  by  the  tenant's  abandonment  of  possession, 
if  the  landlord  had  no  reason  to  suspect,  at  the  time  of  making 
the  lease  to  them,  that  they  would  be  guilty  of  such  improper 

ee  Duff  V.  Hart,  40  N.  Y.  St.  Rep.  727,  has  been    spoken   of  as  an  ex- 

676,  16  N.  Y.  Supp.  163.  treme  case  in  Gilhooley  v.  Washing- 

97  Dyett  V.  Pendleton,  8  Cow.  (N.  ton,  4  N.  Y.  (4  Comst.)  217;  Ethe- 
Y.)  727;  Lay  v.  Bennett,  4  Colo.  App.  ridge  v.  Osborn,  12  Wend.  (N.  Y.) 
252,  35  Pac.  748;  Rowbotham  v.  532;  Vanderbilt  v.  Persse,  3  E.  D. 
Pearce,  5  Houst.  (Del.)  135;  Weiler  Smith  (N.  Y.)  428;  Ogilvie  v.  Hull, 
V.   Pancoast,   71   N.   J.  Law,   414,   58  5  Hill  (N.  Y.)  54. 

Atl.  1084;  Stewart  v.  Forst,  15  Misc.        In  Molineux  v.  Hurlburt,  79  Conn. 

621,  37  N.  Y.  Supp.  215.     See,  as  ap-  243,  64  Atl.  350,  2  L.  R.  A.    (N.  S.) 

proving,  Dyett  v.  Pendleton,  8  Cow.  531,  the  tenant's  allegations  as  to  the 

(N.  Y.)    727;    Edgerton  v.   Page,   20  use  of  the   adjoining  apartment  by 

N.    Y.    281 ;    Home   Life    Ins.    Co.    v.  the  landlady  for  the  reception  of  a 

Sherman,  46  N.  Y.  370;    Jackson  v.  male  guest  were  held  to  be  insuflS- 

Eddy,  12  Mo.  209.  cient  to  show  an  improper  use  ther& 

98  Royce  v.  Guggenheim,  106  Mass.  of  by  her,  even  conceding  that  such 
201,  8  Am.  Rep.  322;  De  Witt  v.  Pier-  use  could  justify  the  tenant  in  leav- 
son,   112    Mass.    8,    17    Am.   Rep.    58.  ing. 

Dyett  V.  Pendleton,  8  Cow.    (N.  Y.) 


.   ^g^  BY  LANDLORD.  1283 

use,  he  having  no  greater  power  than  the  tenant  subsequently 

to  prevent  it.^^ 

There  are  several  eases  which  apparently  assert  a  doctrine 
that  there  is  an  eviction  if  the  lessor,  after  having  made  the  lease, 
discontinues  the  use  which  he  was  making  of  the  adjoining 
premises  at  the  time  of  the  lease,  so  as  to  render  the  leased  prem- 
ises less  desirable  for  the  purpose  for  which  the  lessees  obtained 
the  lease.io"  So  far  as  these  cases  assert  that  a  mere  failure  to 
make  a  certain  use  of  adjoining  premises  constitutes  an  evic- 
tion, they  are,  it  is  submitted,  erroneous,  on  the  principle  be- 
fore asserted,  that  a  mere  omission  by  the  landlord  to  act,  as 
distinct  from  an  act  of  commission,  cannot  be  an  eviction.^o^  In 
some  eases,  under  the  modern  doctrine  of  equitable  easements, 
the  lessee  might  assert  that  the  lease  to  him  was  part  of  a  com- 
mon scheme  of  improvement,  and  so  obtain  an  injunction  against 
a  change  in  the  use  of  the  adjoining  premises,io2  but  this,  be- 
ing a  purely  equitable  doctrine,  could  not  be  the  basis  for  a 

99  Townsend  v.  Gilsey,  31  N.  Y.  tered  into  an  implied  contract  to 
Super  Ct  (1  Sweeny)  155;  Gil-  keep  a  market  during  the  term.  In 
hooley  V.  Washington,  4  N.  Y.  (4  Coulter  v.  Norton,  100  Mich.  389,  59 
Comst )  217;  De  Witt  v.  Pierson,  112  N.  V/.-163,  43  Am.  St.  Rep.  458,  there 
Mass  8,  17  Am.  Rep.  58;  Cougle  v.  was  held  to  be  an  eviction  of  the 
Densmo're,  57  111.  App.  591.  tenant  of  a  cigar  stand  in  a  hotel 

100  In  Conlon  v.  McGraw,  66  Mich,  for  which  damages  could  be  recov- 
94  33  N.  W.  388,  the  court  held  that  ered  on  the  covenant  of  quiet  enjoy- 
there  was  an  eviction  of  the  tenant  ment  when  the  hotel  was  closed  for 
of  part  of  a  building  if  the  owner  lack  of  business.  In  Halligan  v. 
of  the  building  destroyed  other  parts  Wade,  21  111.  470,  74  Am.  Dec.  108, 
of  the  building,  when  the  effect  was  it  was  decided  that,  if  one  portion  of 
to  diminish  the  number  of  the  ten-  a  building  was  leased  for  a  hotel,  the 
ant's  customers.  In  Denison  v.  owner  could  not  lease  other  portions 
Ford,  7  Daly  (N.  Y.)  384,  it  was  held  of  the  building  for  a  saloon  and  a 
that  the  tenant  of  a  "market  stand"  tinshop,  thereby  affecting  the  avail- 
was  evicted  when  the  landlord  and  ability  of  the  other  portion  for  use 
owner  of  the  market  building,  find-  as  a  hotel,  and  that  there  was  an 
ing  it  unprofitable,  induced  the  other  eviction   if  he  did   so. 

tenants  to  surrender  their  stands,  loi  See  ante,  §  185  f  (4). 
and  the  tenant  in  question  having  re-  That  the  change  of  an  office  build- 
fused  to  do  so,  the  landlord  extin-  ing  into  a  hotel  does  not  involve  the 
guished  the  lights  except  those  of  eviction  of  a  tenant  of  an  office, 
that  stand  and  closed  all  the  doors  though  it  makes  it  unsuitable  for  his 
except  that  in  front  of  it.  Tho  purposes,  see  Tucker  v.  Du  Puy,  210 
courts  here  says  that  in  letting  a  Pa.  461,  60  Atl.  4. 
stand  in  the  market  the  lessor  en-  102  See  ante,  §  131. 


1284  iuviCTiON.  §  185 

fijiding  of  a  constructive  eviction.  The  doctrine  suggested,  if 
not  directly  asserted,  by  the  cases  referred  to  above,  that  one 
who  leases  property  is  bound  not  to  cha.nge  the  use  of  the  ad- 
joining property,  if  such  use  is  advantageous  to  the  leased  prem- 
ises, seems  possibly  productive  of  considerable  hardship  to  the 
lessor.  And  it  may  be  asked,  what  are  the  limits  to  the  appli- 
cation of  the  doctrine.  Does  it  apply  to  a  lease  for  a  long  term 
of  years?  Does  the  obligation  on  the  lessor  that  the  use  of  the 
adjoining  premises  shall  not  be  changed  continue  in  case  he 
transfers  such  premises  to  another,  so  that  a  discontinuance  of 
the  use  by  such  other  will  constitute  an  eviction  of  the  tenant? 
And,  if  the  reversion  in  the  leased  premises  is  transferred,  may 
the  transferee  be  deprived  of  rent  by  the  act  of  the  lessor  in  dis- 
continuing the  former  use  of  the  adjoining  premises?  Ques- 
tions of  this  character  may  be  difficult,  if  not  incapable,  of  satis- 
factory solution.  And  the  policy  of  recognizing  any  rights  in 
the  lessee  as  to  the  use  of  adjoining  premises,  other  than  such 
as  may  be  based  on  the  existence  of  an  easement  in  his  favor 
and  on  his  right  to  immunity  from  the  creation  of  a  nuisance, 
is,  it  is  submitted,  open  to  serious  question.  A  grantee  in  fee 
has  no  such  other  rights  as  to  the  use  of  adjoining  premises  re- 
tained by  his  grantor  unless  he  has  the  foresight  to  insert  special 
stipulations  to  that  effect,  and  it  is  not  perceived  why  a  grantee 
for  years  should  be  in  any  better  position.  The  cases  previously 
cited,  to  the  effect  that  the  lessee  may,  by  erecting  a  building  on 
adjoining  premises,  cut  off  the  light  and  air  from  those  leased, 
seem  opposed  to  any  such  rule  in  favor  of  a  tenant  under  a  lease. 

A  condition  on  adjoining  premises,  created  by  another  tenant 
under  the  same  lessor,  but  not  such  as  the  latter  could  have  an- 
ticipated, and  in  no  way  connived  at  or  authorized  by  him,  can- 
not be  asserted  by  the  tenant  as  constituting  an  enaction. 102a 

(9)  Threats  and  annoyances  by  landlord.  Occasionally  an 
eviction  has  been  regarded  as  taking  place  when  the  tenant  re- 
linquished possession  owing  to  abusive  or  threatening  language 
on  the  part  of  the  landlord  or  his  representatives,  or  because  of 
petty  annoyances  and  indignities,  intentionally  caused  to  the 
former  by  the  latter,  making  the  continuance  of  the  occupancy 

losa  FYench  v.   Pettingill,   128   Mo.   and   cases   cited  ante,   note   99,   and 
App.  156,  106  S.  W.  575;    MoKinney    post,  note  201. 
V.  Browning,   110   N.   Y.   Supp.   562, 


-  .gK  BY  LANDLORD.  1285 

impleasant  and  uneomfortable.io^  Evidence  of  the  repeated 
doing  of  such  acts  might,  it  is  conceived,  properly  be  submitted 
to  the  jury  to  determine  whether  they  are  of  such  *'a  grave  and 
permanent  character"  as  to  constitute  an  eviction,  but  it  would 
hardly  seem  that  one  or  two  isolated  acts  of  this  character 
should  be  given  this  effect.io^  if  the  conduct  of  the  landlord 
can  be  construed  as  a  demand  for  possession,  and  the  tenant 
yields  possession  in  consequence  thereof,  the  case  may  be  re- 
garded, it  seems,  as  one  of  surrender  by  operation  of  law^^^ 
rather  than  as  one  of  eviction. 

The  assertion  by  the  landlord  of  reasonable  objections  to  the 
making  of  particular  alterations  by  the  tenant  obviously  does 
not  involve  any  element  of  an  eviction.io^ 

103  There  was  held  to  be  an  evic-  and  his  action  in  listening  to  her 
tion  where  the  tenant  left  the  prem-  conversations  at  the  telephone, 
ises  after  threats  on  the  landlord's  might  justify  the  tenant  in  leaving 
part  to  forcibly  dispossess  him,  the  and  asserting  an  eviction, 
postin-  by  the  latter  of  notices  "to  In  Ewing  v.  Cottman,  9  Pa.  Super, 
lease" "on  the  premises  and  attempts  Ct.  444,  it  was  held  that  remarks  by 
by  him  to  lease  to  others.  Greton  the  landlord  to  persons  boarding  in 
V  Smith,  33  N.  Y.  245.  Compare  the  house,  derogatory  to  the  charac- 
Ogilvie  v'huII,  5  Hill  (N.  Y.)  52.  ter  of  the  house  as  "kept"  by  the 
In  Wyse  v.  Russell,  16  Misc.  53,  37  tenant,  did  not  effect  an  eviction, 
N  Y.  Supp.  683,  the  landlord  was  since  they  did  not  prevent  the  ten- 
disagreeable  and  discourteous,  made  ant  from  enjoying  the  house  to  its 
unreasonable  demands  on  the  ten-  full  capacity;  and  in  another  case  it 
ant  and  finally  assaulted  the  ten-  was  held  to  be  no  defense  to  a  claim 
ant'  and  told  him  he  "must  go,"  for  rent  that  certain  of  the  tenant's 
whereupon  the  tenant  left,  and  there  lodgers  left  because  of  the  use  by 
was  held  to  be  an  eviction.  the  landlord  of  boisterous  language 

In  Cohen  v.  Dunont.  3  N.  Y.  Super,  in  addressing  the  tenant.  Fish  v. 
Ct  (1  Sandf  )  260,  it  was  held  that  Ryan,  88  111.  App.  524.  In  the  latter 
there  was  an  eviction  of  a  tenant  case  there  is  no  mention  of  eviction, 
when  he  left  owing  to  the  infliction  and  the  tenant  retained  possession, 
on  him  by  the  landlord's  family  of  lo*  A  single  assault  on  the  tenant 
petty  annoyances,  such  as  abuse  of  or  on  his  servant  has  been  held  not 
himself  his  family  and  his  business  to  constitute  an  eviction.  Haas  v. 
visitors'  the  dirtying  of  the  halls  Ketcham,  87  N.  Y.  Supp.  411;  Vatel 
and  stairways,  and  the  muffling  of  v.  Herner,  1  Hilt.  (N.  Y.)  149. 
his  door  bell.  And  in  Fox  v.  Mur-  los  See  post,  190  c,  at  note  151. 
dock,  58  Misc.  207,  109  N.  Y.  Supp.  loe  Whitcojub  v.  Brant  (N.  J.  Law) 
108    it  was   intimated  that  the  au-    68  Atl.  1102. 

thorized  action  of  the  landlord's  rep-  That  the  landlord  objected  to  the 
resentative  in  making  slanderous  re-  erection  of  a  building  by  the  tenant 
marks  concerning  the  tenant's  wife,   in  accordance  with  a  stipulation  m 


1286  EVICTION.  §  185 

(10)  Interference  with  subtenant.  "Where  the  lease  does  not 
forbid  the  lessee  to  sublet,  the  action  of  the  landlord  in  refusing 
to  allow  a  subtenant  to  enter  on  the  premises  has  been  regarded 
as  an  eviction  of  the  tenant/^''  and  the  same  view  has  been  taken 
of  his  action  in  expelling  the  subtenant^*''^  and  in  forcing  the 
subtenant  to  pay  rent  to  him  instead  of  to  the  tenant.^^^-^^® 

(11)  Making  of  repairs.  As  elsewhere  stated,m  the  land- 
lord has  ordinarily  no  right,  in  the  absence  of  special  stipula- 
tion and  without  the  tenant's  consent,  to  enter  on  the  premises 
to  make  repairs.  Usually,  when  the  landlord  enters  for  such  a 
purpose,  he  does  so  under  authority  given  by  the  lease,!^^  qj.  i^y 
permission  given  by  the  tenant,  either  express  ^^^   or  inferred 

the  lease;  that  he  notified  a  dealer  had  thereafter  transferred  the  rever- 
who  had  agreed  to  furnish  tbe  lum-  sions  in  fee,  reserving  rent,  was  held 
ber  that  he,  the  landlord,  would  not  to  have  evicted  his  grantee,  and  so 
pay  therefor,  and  threatened  to  suspended  the  rent  reserved  on  the 
prosecute  the  tenant's  employes  if  conveyance,  by  distraining  for  the 
they  proceeded  with  its  erection,  was  rent  reserved  on  the  prior  leases, 
held  not  to  involve  a  "breach  of  the  not  he,  but  his  grantee,  being  en- 
tease."  Buhler  v.  Smith,  130  Wis.  titled  to  such  rent. 
488,  110  N.  W.  412.  By  the  latter  m  See  ante,  §  3  b  (2),  at  notes 
expression  is  presumably  meant  an  35-39. 
eviction.  ^i-  International     Press     Ass'n     v. 

lOT  Randall  v,  Alburtis,  1  Hilt.  (N.  Brooks,  30  111.  App.  114.     In  Waite  v. 

Y.)    285;    Doran   v.    Chase,   2   Wkly.  O'Neil,  22  C.  C.  A.  248,  76  Fed.  408, 

Notes  Cas.   (Pa.)    609,  referred  to  in  34  L.  R.  A.  550,  it  was  held  that  the 

Hoeveler  v.   Fleming  &   Co.,   91    Pa.  reservation,  on  the  lease  of  a  "land- 

322.     See    Rowbotham    v.    Pearce,    5  ing"  of  the  right  to  make  such  re- 

Houst.    (Del.)    135.  pairs  as  might  be  necessary  for  the 

los  Burn  v.  Phelps,  1  Starkie,  94.  security     and     preservation     of    the 

109, 110  Leadbeater  v.  Roth,   25   111.  premises,  did  not  give  the  right  to 

587;  Burhans  v.  Monier,  38  App.  Div.  construct  works  in  the  river  which 

466,  56  N.  Y.  Supp.  632.  would  make  the  landing  useless,  and 

The  bringing  of  ejectment  by  the  that  the  construction  of  such  works 

original    landlord    against    his    ten-  was   an   eviction. 

ant,  who  had  subleased,  is  not  an  us  Cook  v.  Anderson,  85  Ala.  99, 
eviction,  when  the  landlord  advises  4  So.  713;  Ludington  v.  Seaton.  32 
the  subtenant  to  continue  paying  Misc.  736,  66  N.  Y.  Supp.  497;  Rob- 
rent  to  the  tenant  pending  the  suit,  inson  v.  Henaghan,  92  111.  App.  620; 
Agar  V.  Winslow,  123  Cal.  587,  56  Ferguson  v.  Troop,  17  Can.  Sup.  Ct. 
Pac.  422,  69  Am.  St.  Rep.  84.  527;   Days  v.  I>oyle,  99  Ga.  62,  24  S. 

In  Lewis  v.  Payn,  4  Wend.  (N.  Y.)  E.    405;    Peterson    v.    Edmondson,    5 

423,  one  who  had  leased  portions  of  Har.    (Del.)   378. 
his    farm   to   different   persons    and 


§  185  BY  LANDLORD.  1287 

from  his  tacit  acquiescence/ ^^  and  in  such  cases  there  can  be 
no  eviction.ii^  If,  however,  he  enters  and  makes  repairs  or 
rebuilds  without  any  such  authority  or  permission,  this  may  in- 
volve such  an  absolute  exclusion  of  the  tenant  from  the  demised 
premises  or  a  part  thereof  as  to  cause  an  ''actual"  eviction  in 
whole  or  in  part,  or  he  may  thereby  so  substantially  interfere 
with  the  tenant's  possession  and  enjoyment  as  to  justify  the 
latter  in  relinquishing  possession  of  the  whole  or  a  part  of  the 
premises,  this  constituting  a  ''constructive"  eviction.^^^ 

It  has  been  decided  that  the  mere  fact  that  the  tenant  fails 
to  object  to  the  making  of  repairs  or  improvements  by  the  land- 
lord, or  that  he  pays  rent  after  the  commencement  thereof,  does 
not  necessarily  show  a  consent  thereto  on  the  tenant's  part.^^''' 
"Whether  there  is,  in  any  particular  case,  an  oral  consent  to 
the  repairs,  or  whether  a  consent  is  to  be  inferred  from  conduct, 
would,  it  seems,  be  a  question  for  the  jury  on  the  evidence.^^^ 

In  case  the  lease  is  of  a  building  alone  or  of  a  part  of  a 
building,  the  tenancy  comes  to  an  end  on  the  destruction  there- 
of,i^^  and  consequently  a  subsequent  entry  on  the  land  by  the 
landlord  in  order  to  rebuild  cannot  be  an  eviction.i^o     There  are 

11*  Barnum  v.  Fitzpatrick,  27  Abb.  &  Malting  Co.,  57  Misc.  430,  108  N. 
N.  C.  334,  16  N.  Y.  Supp.  934;  Camp-  Y.  Supp.  237,  it  was  held  that  the 
bell  V.  Shields,  11  How.  Pr.  (N.  Y.)  landlord  was  not  guilty  of  an  evic- 
565;  Phillips  &  Buttorff  Mfg.  Co.  v.  tion  because  he  nailed  boards  over 
"Whitney,  109  Ala.  645,  20  So.  333;  broken  windows  to  protect  the  prop- 
Smith  V.  McLean,  22  111.  App.  451;  erty,  the  building  having  been  left 
Rosenbloom  v.  Finch,  37  Misc.  818,  unoccupied,  and  the  lease  authoriz- 
76  N.  Y.  Supp.  902.  ing  the  lessor  to  enter  to  make  re- 
us Cook  V.  Anderson,  85  Ala.  99,  4  pairs  and  requiring  the  lessee  to  pre- 
So.    713;    Peterson    v.    Edmonson,    5  vent  waste. 

Har.  (Del.)   378;  Barnum  v.  Fitzpat-  us  See   Wait    v.    O'Neil,    47    U.    S. 

rick,    27    Abb.   N.    C.    334,    16    N.    Y.  App.  19,  76  Fed.  408,  34  L.  R.  A.  550; 

Supp.   934;    Campbell  v.    Shields,   11  Brown  v.  Wakeman,  42  N.  Y.  St.  Rep. 

How.  Pr.   (N.  Y.)   565;   Smith  v.  Mc-  677,   16  N.  Y.  Supp.  846;   Osmers  v. 

Lean,    22    111.    App.    451;    Humiston,  Furey,    32    Mont.    581,    81    Pac.    345; 

Keeling    &    Co.    v.    Wheeler,    70    HI.  Magaw  v.  Lambert,  3  Pa.  444;  Hoeve- 

App.  349;   Id.,  175  111.  514,  51  N.  E.  ler  v.  Fleming,  91  Pa.  322. 

893,   67  Am.   St.  Rep.  232;    Ernst  v.  ii7  Wusthoff  v.  Schwartz,  32  Wash. 

Straus,   114  App.    Div.   19,  9!)   N.  Y.  337,  73  Pac.  407. 

Supp.  597;  Rogers  v.  Grote  Paint  Co.,  us  Compare  §  3  b  (3). 

118  Mo.  App.  300,  94  S.  W.  548  (prem-  nf  See  ante,  §  12  g  (8),  at  note  329. 

ises  destroyed  by  fire).  120  Alexander  v.  Dorsey,  12  Ga.  12, 

In   Mahoney   v.    Broadway    Brew.  56  Am.  Dec.  443;   Fleming  v.  King, 


1288  EVICTION.  §  185 

cases  also  to  the  effect  that  the  action  of  the  landlord  in  rebnild- 
ing  or  repairing  in  ease  of  the  destruction  of  a  building  is  not  an 
eviction,  though  the  lease  was  of  the  land  as  well  as  of  the  build- 
ing,i2i  This  view  is  perhaps  based  on  the  theory  that  the  re- 
construction of  the  building  is  so  greatly  for  the  advantage  of 
the  tenant  that  his  failure  to  object  thereto  is  evidence  of  consent. 
If  he  should  object  thereto,  however,  and  the  landlord's  operations 
have  the  effect  of  excluding  him  from  possession,  it  would,  it 
seems,  be  an  eviction,  pro\aded  the  tenancy  is  to  be  regarded 
as  still  existent  under  such  circumstances  ;i22  ^nd  there  is  at 
least  one  case  to  the  effect  that  the  rebuilding  in  such  case  with- 
out the  tenant's  consent  may  result  in  an  eviction.123  j^  has 
been  held  that  a  landlord,  if  not  responsible  for  an  injurious 
condition  of  the  premises  arising  during  the  tenancy,  is  not  re- 
sponsible for  the  consequences  of  his  act,  not  wrongful  or  negli- 
gent in  character,  in  trying,  at  the  tenant's  request,  to  remove 
this  condition,  and  that  the  tenant  cannot  relinquish  possession 
and  refuse  to  pay  rent  on  account  of  such  act.^^sa 

If  repairs  are  legally  ordered  by  the  municipal  authorities,  no 
eviction  can  arise  from  the  landlord's  compliance  with  such 
order.124 

In  one  or  two  cases  it  is  intimated  that  an  undue  delay  in 
completing  repairs,  undertaken  with  the  tenant's  consent,  might 
constitute  an  eviction.i^s 

100  Ga.  449,  28  S.  E.  239;  McMillan  pended."  There  is  apparently  no 
V.  Solomon,  42  Ala.  356,  94  Am.  Dec.  authority  for  the  statement  as  to  the 
654.  effect   of   the   entry  by   the   tenant's 

121  Izon  V.  Gorton,  5  Bing.  N.  C.  assent.  This  seems  to  involve  the 
501;  Connecticut  Mut.  Life  Ins.  Co.  imposition  on  the  landlord  of  a  pen- 
V.  U.  S.,  21  Ct.  CI.  195;  Monotuck  Silk  alty  for  doing  something  which 
Co.  V.  Shay,  37  111.  App.  542.  enures  to  the  advantage  of  the  ten- 

122  See  ante,  §  182  m  (6)    (d),  (8)    ant. 

(g).  123a  Blake  v.    Dick,   15   Mont.   236, 

123  Hoeveler  v.  Fleming  &  Co.,  91  38  Pac.  1072,  48  Am.  St.  Rep.  671. 
Pa.  322.  In  Magaw  V.  Lambert,  3  Pa.  104  Fleming  v.  King,  100  Ga.  449, 
444,  as  quoted  in  the  above  case,  it  is  28  S.  E.  239 ;  Cassard  v.  Thornton, 
said  that  "if  a  landlord  take  posses-  119  ill.  App.  397;  Markham  v.  David 
slon  of  the  ruins  of  his  premises  de-  Stevenson  Brew.  Co.,  51  App.  Div. 
stroyed  by  fire  for  the  purpose  of  ro-  463,  64  N.  Y.  Supp.  617;  Id.,  169  N. 
building,  without  the  consent  of  his  Y.  593,  62  N.  E.  1097;  Barnum  v. 
tenant,  it  is  an  eviction;  if  with  his  Fitzpatrick,  46  N.  Y.  St.  Rep.  891,  19 
assent  it  is  a  rescission  of  the  lease,  N.  Y.  Supp.  385.  See  post,  §  186  c. 
and   in  either  case  the  rent  is  sus-  125  Ferguson  v.  Troop,  17  Can.  Sup. 


,  ,„-  BY  LANDLORD.  1289 

§  185 

That  the  owner  of  a  building  prevented  the  entry  of  persons 
for  the  purpose  of  repairing  an  apartment  therem,  which  had 
become  untenantable  by  rea^o.n  of  the  act  of  a  stranger,  was  held 
to  justify  the  tenant  of  the  apartment  in  relinquishing  posses- 
sion and  asserting  an  eviction.i25a  ^     ,  ^i,  .  +u« 
(12)     Withholding  of  license  for  business.     The  fact  that  the 
tenant  is  unable  to  obtain  a  license  from  the  authorities  to  carry 
on  the  business  for  which  he  took  the  lease  has  been  held  not  to 
involve  an  eviction  by  the  landlord/^^  though  a  different  view 
was  takeoi  when  this  was  the  result  of  the  willful  refusal  of  the 
landlord  to  give  his  written  consent  to  the  use  of  the  premises 
for  the  purpose  for  which,  as  appeared  from  the  written  instru- 
ment, the  lease  was  obtained.^^^     Whether  such  a  mere  act  of 
omission,  on  the  part  of  the  landlord,  however  willful,  should  be 
reo-arded  as  effecting  an  eviction  seems  very  doubtful.i^s     i^^  an- 
other case  it  was  decided  that  the  action  of  the  landlord  m  per- 
suading the  authorities  to  refuse  a  liquor  license  to  the  tenant 
did  not  involve  an  eviction,  since  it  "had  no  tendency  to  inter- 
rupt   and  did  not  interrupt,  the  tenant's  possession, "i^o  and  a    • 
like  decision  was  rendered  as  U>  the  act  of  the  landlord  m  Dom- 
ino- as  owner  of  neighboring  property,  in  a  remonstrance  against 
the'grant  of  a  license  to  the  tenant,  although  if  he  had  not  joined 
the  remonstrance  would  have  been  unsuccessful.i^o 

g.    Tenant's  assent  to  landlord's  acts.    Acts  on  the  part  of 

rt   ^97-  Dexter  v  King   28  N.  Y.  St.   requires  the  owner's  written  consent 
Sp    75oTn   Y    Supp    489. 

X25a  Bergman    v.    Papia,    58    Misc.    retained  possession  of  the  premises, 
533   109  N.  Y.  Supp.  856.  and  so,  it  is  submitted,  no  eviction 

1^6  Miller  V.  Maguire.  18  R.  I.  770,  actual  or  constructive,  occurred  and 
30  Atl  966  where  the  tenant  was  un-  indeed  such  refusal  of  consent  was 
a^lfto  Ob  ain  a  renewal  of  his  liquor  not  set  up  as  an  absolute  defense  to 
if^nse  because  the  city  had  erected  the  claim  for  rent  but  -fely  as  o^ 
a  school  building  nearby.  See  Guth  ground  for  "recoupment,  and  for 
V  Mehling  84  Ipp.  Div.  586,  82  N.  this  purpose  it  might  be  considered 
V.  ™^^"°^'    g       ^^  that  there  was  merely  a  breach  by 

.^.^G^benhorst   v.    Nicodemus.   42    the  lessor  of  a  contract  to  give  such 
Md    236    where  the  lessor  refused  to   consent, 
give  his  written  consent  to  the  use       1 28  See  ante,  §  185  f  (4)^ 

S  the  premises  as   a  distillery,  for  ^^  I-\7^^^«- J™f  ^^ ^509 

which  purpose  they  were  leased,  and  mann,  158  Mass.  287,  ^3  N.  E   509^ 

thereby  prevented  their  use  for  that  -  Kellogg  v.  Lowe^  38  Wash.  293, 

purpose,    since    the   act   of    congress  SO  Pac.  458,  70  L.  R.  A.  510. 


1290  EVICTION.  I  185 

the  landlord  to  which  the  tenant  assents  cannot  be  asserted  by 
the  tenant  as  constituting  an  eviction.^^i  This  self-evident  prin- 
ciple lias  been  applied  in  the  ease  of  an  entry  by  the  landlord, 
with  the  tenant's  assent,  to  make  repairs  or  improvements,^ ^^ 
and  so,  assuming  that  a  subsequent  lease  by  the  landlord  would 
otherwise  constitute  an  eviction,^ ^3  j^  cannot  be  such  if  assented 
to  by  the  tenant.     Likewise,  acts  which  the  landlord  is,  by  the 

terms  of  the  lease,  authorized  to  do  cannot  constitute  an  evie- 
tion.134-136 

h.  Effect  of  eviction  on  tenancy.  An  eviction  by  the  land- 
lord does  not,  it  seems,  terminate  the  tenancy.  That  this  is  so 
would  appear  from  the  statements  in  the  books,  not  that  the  rent 
is  extinguished  by  an  eviction,  but  that  it  is  suspended  there- 
by,*^"^  and  that  it  is  revived  by  the  tenant's  re-entry.i^s  That 
an  eviction  from  part  does  not  terminate  the  tenancy  has  been 
clearly  asserted,^ ^9  ^j^j  j^  ^qq^  j^j^^  j^  j^g^g  l^gg^  decided,  relieve 

the  tenant  from  the  performance  of  his  covenants  other  than  for 

131  See  Murray,  Caldwell  &  Co.  v.  nessee     Fixture     &     Showcase     Co., 

PeBnlngton,  3   Grat.    (Va.)    91;    Her-  Tenn.  Ch.  App.  653. 

berg  V.  May,  153  Pa.  216,  25  Atl.  750,  i33  See  ante,  §  185  f  (6). 

34  Am.  St.  Rep.  697;   Price  v.  Pitts-  i34-i36  Morris    v.    Tillson,    81       111. 

burg,  Ft.  W.  &  C.  R.  Co..  34  111.  13;  607;    Matthews   v.    Meyberg,   4    Hun 

Lettick  V.  Honnold,  63  111.  335;  Aus-  (N.  Y.)  78;  Murphy  v.  Marshall,  179 

tin  V.  Strong,  47  N.  Y.  679.  Pa.  516,  36  Atl.  294.     So  where  the 

In  Mirick  v.  Hoppin,  118  Mass.  582,  landlord     re-enters     in     compliance 

it  was  held  that  there  was  no  evic-  with  a  provision  of  the  lease  author 

tion  if  the  lessor  by  mistake  put  a  izing  him  so  to  do  on  a  certain  cou- 

fence  where  it  cut  off  a  part  of  the  tingency.     Wright     v.     Everett,     87 

premises   demised,   the  lessee  know-  Iowa,  697,  55  N.  W.  4;  Hunnewell  v. 

ing  of  his  action  and  making  no  ob-  Bangs,  161  Mass.  132,  36  N.  E.  751. 

jection,  and  forbidding  the  removal  ist  See  Bro.  Abr.,  Apportionment, 

of  the  fence  on  the  lessor's  discovery  pi.  7;    Co.  Litt.  148  b;    Hodgkins  v. 

of  the  mistake.  Robson,  Vent.  277.     See  ante,  §  182  e 

i32Ludington   v.    Seaton,   32   Misc.  (1),  at  note  845. 

736    66  N.  Y   Snpp.  497;  Cook  v.  An-  ^^s  Cibel  v.   Hills,  1  Leon.  UO,  pi. 

dei^on,  85  Ala.  ^.  4  So.  713;  Robin-  ^^^'  Timbrell  v.  Bullock,  Styles,  446; 

,  „„  ,„     A coo.    Bro.  Abr.,  Extinguishment,  pi.  4;  Co. 

son  V.  Henaghan,  92  III.  App.    620; 

Litt.  319  a. 
Ogden  V.  Sanderson,  3  E.  D.   Smith  .  ttt-v,-*     oo  tvt         ,-, 

i33LeiEhman  v.  White,  83  Mass.  (1 
(N.  Y.)  166;  Olson  Y.  Schevlovitz,  91  ^,,g^)  ^^^.  Morrison  v.  Chadwick.  7 
App.  Div.  405,  86  N.  Y.  Snpp.  834;  q  -q  266,  283;  Smith  v.  McEnany, 
Wetterer  v.  Soubirous,  22  Misc.  739,  170  Mass.  26,  48  N.  E.  781,  64  Am. 
49  N.  Y.  Supp.  1043;  Olmstead  v.  Ten-    St.  Rep.  272. 


»  ,,,K  BY  LANDLORD.  1291 

the  payment  of  rent,  sneh  a^  that  to  repair/^^  or  to  use  the  prem- 
ises in  a  tenant-like  manner.^^^     The  oeeasional  statements  to 
the  contrary,  that   a  partial  or   entire  eviction  terminates  the 
tenancy,  are  presumably  to  be  construed  as  referring  merely  to 
the  question  then  at  issue,  the  termination,  for  the  time  bemg, 
of  the  liability  for  rent.     The  view  that  the  tenancy  still  exists 
after  the  eviction  does  not  necessarily  mean  that  the  tenant  s 
liability  for  rent  revives  merely  upon  the  landlord's  subsequent 
withdrawal  from  the  premises,  but  it  is,  it  seems,  o.nly  upon  the 
tenant's  re-entry  that  such  liability  revives.^^^     For  any  loss  by 
reason  of  his  continuing  liability  upon  his  covenants,  the  tenant 
could,  it  is  conceived,  recover  damages  in  an  action  on  account 
of  the   eviction,! «    and,   in   some   jurisdictions,   presumably,  he 
could  assert  damage  caused  by  the  eviction  by  way  of  recoup- 
ment or  set-off  in  an  action  on  any  of  the  covenants. 

i  Action  for  damages.  The  ordinary  form  of  action  against 
the  landlord  in  favor  of  the  tenant  for  the  recovery  of  damages, 
on  account  of  the  eviction  of  the  latter  by  the  former,  is  one 
upon  the  covenant  for  quiet  enjoyment.^^^  The  tenant  may 
however,  instead  of  suing  on  the  covenant,  bring  an  action  of 
tort  on  account  of  the  landlord's  interference  with  his  posses- 
sion or  enjoyment  of  the  land.^^^     This  action  would,  m  juris- 

140 Newton  v.  Allen.  1  Q.  B.  519;  1*5  Shuman  v.  Smith  100  Ga.  415, 
S^^ithv  McEnany,  170  Mass.  26,  4S  28  S.  ^^^|^^^.^f  ^^^^^.^^^^  ^^,,;: 
M  V  781  64  Am  St.  Rep.  272  (die-  Cooper,  104  Mich.  72,  G2  N.  ^  .  157, 
fum)  An  st  Carrel  v.  Read.  Cro.  Maney  v.  Lamphere,  139  mch.  42«. 
SS  374  But  in  Pellatt  v.  Boosey.  102  N.  W.  979;  Cannon  v.  Wilbur,  30 
S  Law  J  C  P  281,  while  it  was  ad-  Neb.  777,  47  N.  W.  85;  Huiest  v. 
L^^that  the  lessee  might  be  Marx,  67  Mo.  APP-  418  Den^^on  v 
liable  on  the  covenant  to  repair,  a  Ford,  ^l''^^'^- l\''':^''ll'Ti- 
forfeiture  for  breach  thereof  was  not  ton  v.  Fox,  12  N.  Y.  Super.  Ct.  64 
I  lowed    in  View  of  the  eviction.  Gallagher  v.  Bur.e.  13  P.  Superset 

-Morrison  v.  Chadwick,  7  C.  B.    244;   Jennin.^  .  Bond^,^14  Ind.^Ap. 

""xl^  Se'e  ante    §   182  e   (1).  at  note    (Tex.  Civ.  App.)  29  S.  W.  505;  Wilk- 
14.  see  ante,  s  .^^^   ^     ^^^^^^^    ^^^^    ^5^    ^pp  ) 

Lsee  Morrison  v.  Chadwick.  7  C.    43   S.   W^  606;    Uta^   XfJ'l^l' 
^    „..    ^n,  Keith,    18    Utah,    464,    56    Pac.    15&, 

x^see  ante    §  79.  Robrecht  v.  Marling's  Adm'r,  29  W. 

That  the  tenant  cannot  obtain  the   Va.  765,  2  S.  E.  827,  6  Am.  St.  Rep. 
aid  of  a  court  of  equity  to   restore   676. 

him    to   possession,   see  Williams   v.       The  payment  of  all  arrears  of  rent 
Mathewson.  73  N.  H.  242,  60  Atl.  687.   is  not  a  condition  precedent  to  the 


1292  EVICTION.  I  185 

dictions  where  the  old  forms  of  action  are  retained,  be  in  tres- 
pass, or  in  trespass  on  the  ease,  accordingly  as  the  landlord's  acts 
involve  a  direct  interference  with  the  tenant's  possession,  or 
merely  an  interference  with  his  beneficial  esijoyment. 

It  has  ordinarily  been  decided  that,  in  such  an  action  of  tort, 
the  te.nant  may  recover  the  difference  between  the  rental  value 
of  the  premises  and  the  rent  agreed  to  be  paid,^*^  as  he  may  in 
an  action  on  the  covenant  for  quiet  enjoyment  f^^"^  and  the  cases 
do  not  suggest  the  possibility  of  difference  in  the  amou.nt  of 
recovery  in  such  two  forms  of  action, i^s  except  as  this  may  be 
implied  in  the  occasional  assertion  of  a  right  to  recover  punitive 
damages  in  the  action  of  tort.^^*^  There  are  difficulties,  how- 
ever, in  regarding  the  measure  of  damages  as  the  same  in  the 
two  classes  of  action. 

The  tenant's  right  of  action  against  the  landlord  in  tort  is, 
it  seems,  similar  to  that  which  he  would  have  against  any  stran- 
ger who  might  similarily  interfere  with  his  possession  or  enjoy- 
ment. Such  right  of  action  grows  out  of  the  violation  of  a 
right  in  rem  and  not  in  personam,  and,  in  determining  the  right 
and  amount  of  recovery,  the  fact  that  the  parties  occupy  the  re- 
lation of  landlord  and  tenant  is,  it  is  conceived,  immaterial.  In 
other  words,  accurately  speaking,  the  tenant  recovers  not  for 
an  eviction  by  his  landlord  but  for  a  trespass  on  his  possession, 
or  for  an  interference  with  his  rights  of  enjoyment.  If  the  ten- 
ant is  forcibly  expelled  from  the  land,  either  by  his  landlord  or 
by  a  third  person,  he  may  recover  in  an  action  of  trespass  for  the 

maintenance     of     sneli     an     action,  graber,   70   Minn.    220,   73   N.   W.   7; 

Spencer  v.  Commercial  Co.,  30  Wash.  Silber  v.  Larkin,  94  Wis.  9,  68  N.  W. 

530,  71  Pac.  53.  406;    Williams  v.   Yoe,   22   Tex.   Civ. 

In  Rice  v.  Baker,  84  Mass.   (2  Al-  App.  87,  54  S.  W.  614. 

len)    411,  it  was  decided  tbat  where  kt  See  ante,  §  79  g. 

the  parties  agreed  that  the  value  of  i48  in   Dobbins  v.    Duquid,    65    111. 

the   residue   of  the  term   remaining  464,  and  Goldstein  v.  Asen,  46  Misc. 

after  the   eviction    should   be   set-off  251,   91  N.  Y.  Supp.  783,  apparently 

in  an  action  for  rent,  the  fact  that  actions  in   tort,   the  court  expressly 

the  lease  was  not  assignable  could  be  adopted    the    measure    of    damages 

considered      in      determining      such  stated  in  the  case  of  actions  on  the 

value.  covenant  for  quiet  enjoyment. 

1+0  See  Dawson  v.  Marsh,  74  Conn.  i49  Gildersleeve     v.     Overstolz,     90 

498,  ,51  Atl.  529;   Dobbins  v.  Duquid,  Mo.  App.  518;  Dobbins  v.  Duquid,  65 

€5  111.  464;  Haines  v.  B^ach,  90  Mich.  III.  464. 
■563,  51  N,  W.  644;  Wacholz  v.  Gries- 


185 


BY  LANDLORD.  1293 


trespass  on  the  land  a.nd  for  any  consequential  damage  directly 
caused  thereby,  but  he  should  not,  it  would  seem,  recover  against 
his  landlord  upon  the  theory  that  his  exclusion  from  the  land 
will  continue  during  his  whole  term,  any  more  than  he  could 
against  a  stranger  who  thus  ousted  him  from  the  land,  nor  in- 
deed than  a  tenant  in  fee  could  recover  for  such  a  trespass  on 
the  theory  that  the  exclusion  would  continue  in  perpetuity.^^o 
In  case  the  trespass  assumes  a  permanent  character,  as  when  the 
landlord  or  a  stranger  erects  a  wall  or  other  structure  upon  the 
leased  land,  the  tenant  might,  it  seems,  in  some  jurisdictions,  re- 
cover both  past  and  future  damages,  on  the  theory  that  his  ex- 
clusion will  endure  for  the  whole  term  of  his  lease,  though  in 
others  he  could,  even  in  the  case  of  an  act  of  such  a  permanepit 
nature,  recover  only  the  damages  which  had  accrued  prior  to  the 
time  of  the  action.i^i  go  if  the  tenant  is  not  actually  excluded 
from  the  land,  but  the  landlord,  or  a  third  person,  interferes 
with  the  tenant's  enjoyment  of  the  leased  land  by  his  mode  of 
use  of  adjoining  land,  as  when  he  obstructs  the  access  over  such 
land  to  the  leased  land,  or  interferes  with  water  rights  appurt- 
enant to  the  leased  land,  or  creates  a  nuisance  polluting  the 
atmosphere,  the  wrong  is  not  ordinarily  of  a  necessarily  continu- 
ing character,  and  the  tenant  should  not  recover  for  damages 
which  may  possibly  accrue,  subsequently  to  the  action,  by  reason 
of  the  continuance  of  the  wrong.  And  even  though  the  wrong- 
doer is  the  landlord,  the  tenant,  it  is  submitted,  should  not  be 
allowed  to  change  the  character  of  the  wrong,  or  the  quantum  of 
damages  recoverable,  by  relinquishing  possession  and  asserting 

150  That    the    tenant    can    in    such  Mich.  163;  Murphy  v.  Century  Bldg. 

an   action   recover  only  for  damage  Co.,    90    Mo.    App.    621.     But   not,    it 

suffered  by  the  tenant  prior  to  the  would  seem,  if  he  could  resume  pos- 

commencement    of    the    action,    see  session  and  restore  his  business  on 

Salmon  v.  Blasier  Mfg.  Co.,  123  App.  the  same  footing  as  before. 

Div.  171,  108  N.  Y.  Supp.  448.  isi  See    Sedgwick,    Damages     (8th 

But     damages    for    the    wrongful  Ed.)    §§  91,  92,  95,  924;    Sutherland, 

entry  and  expulsion  may,  in  a  prop-  Damages,      §§      114,      116;      Mayne 

er  case,  be  computed  with  reference  (Wood)    §§   102-111;    8   Am.   &  Eng. 

to    the    fact    that   this    destroys    his  Enc.    of    Law    (2d    Ed.)     864.     The 

business   and   thus   deprives  him  of  cases  on  the  subject  of  the  recovery 

profits    which    otherwise    he    would  of  such  prospective  damages  appear, 

have  received  for  the  balance  of  the  so   far  as  one  can   judge   from   the 

term.     Ashley  v.   Warner,    77    Mass.  textbooks,  to  be  in  a  state  of  great 

(11  GTay)   43;   Shaw  v.  Hoffman,  25  confusion. 


1294  EVICTION.  §  185 

an  eviction.  In  so  far  as  any  of  the  cases  may  recognize  a  right 
of  recovery  by  a  tenant  against  his  landlord  for  wrongful  ex- 
pulsion, or  for  wrongful  use  of  adjoining  premises,  different 
from  that  which  the  tenant  would  have  against  a  third  person 
committing  the  same  wrong,  and  similar  to  that  which  he  would 
have  in  an  action  on  the  covenant  for  quiet  enjoyment,  they  in 
effect  assert,  it  seems,  that  there  is  a  peculiar  class  of  tort,  in- 
volving an  interference  with  property  rights,  and  consisting  of 
an  actual  or  constructive  eviction,  which  is  neither  a  trespass  or 
a  nuisance,  which  can  be  perpetrated  only  by  a  landlord  and 
only  against  a  tenant,  and  damages  for  which  are  measured  not 
so  much  by  the  extent  of  the  injury  as  by  the  extent  of  the  in- 
terest of  the  person  injured.  , 

In  such  an  action  the  possible  profits  which  the  lessee  might 
have  made  from  his  continued  occupation  of  the  premises  are 
ordinarily  regarded  as  not  recoverable,^^^  though  a  different 
view  has  occasionally  been  taken  when  the  profits  were  those 
of  an  established  business,  which  might  have  been  in  the  con- 
templation of  the  parties  ;^^^  and  in  one  case  evidence  of  past 
profits  was  admitted  to  show  the  loss  resulting  from  a  temporary 
interruption  of  the  lessee's  business  caused  by  the  lessor's 
wrongful  entry. 1^4 

Besides  the  difference  between  the  rental  value  and  the  stipu- 
lated rent,  the  lessor  may  recover  "special  damages"  directly 
growing  out  of  the  evietion.^^^  It  has  apparently  been  decided 
that  he  may  recover  a  loss  caused  by  being  forced  to  sell  off  his 
stock  and  implements  as  a  result  of  the  eviction,i^^  though  else- 

152  Denison   v.   Ford,   10   Daly    (N.  iss  Smith  v.  Eiibanks,  72  Ga.  280; 

Y.)   412,  disapproving  Shaw  v.  Hoff-  Shaw    v.    Hoifman,    25    Mich.    162; 

man,   25   Mich.    162,   ante,  note   150;  Kitchen  Bros.  Hotel  Co.  v.  Philbin,  2 

Kenny  v.  Collier,  79  Ga.  743,  8  S.  E.  Neb.  UnolT.  340,  96  N.  W.  487;    Rice 

58:  Eisenhart  v.  Ordean,  3  Colo.  App.  v.  Whitmore,  74  Cal.  619,  16  Pac.  501, 

162,  32  Pac.  495;    Taylor  v.   Cooper,  5  Am.  St.  Rep.  479   (semble). 

104  Mich.  72,  62  N.  W.  157;  Jennings  154  Gkiebel  v.  Ho\igh,  26  Minn.  252, 

V.   Bond,  14  Ind.  App.  282,   42  N.  E.  2  N.  W.  847,  37  Am.  Rep.  407. 

957:   Karbach  v.  Fogel,  63  Neb.  601,  iss  Jennings  v.  Bond,  14  Ind.  App. 

88  N.  W.  659;   Robrecht  v.  Marling's  282,  42  N.  E.  957;   Shutt  v.  Lockner, 

Adm'r.  29  W.  Va.  765,  2  S.  E.  827,  6  77  Neb.  397,  109  N.  W.  383;  Robrecht 

Am.    St.    Rep.    676;    Loyd    v.    Capps  v.   Marling's  Adm'r,   29  W.  Va.   7ft5, 

(Tex.  Civ.  App.)  29  S.  W.  505;  De  La  2  S.  E.  827,  6  Am.  St.  Rep.  676. 

Zerda   v.  Korn,   25   Tex.   Supp.   193;  ise  Supplee    v.    Timothy,    124    Pa. 

Wilkinson     v.     Stanley     (Tex.     Civ.  375,  16  Atl.  864. 
App.)   43  S.  W.  606. 


§  185  BY  LANDLORD.  1295 

where  a  different  view  has  been  asserted.^^'^  The  depreciation 
of  the  value  of  his  property  as  a  result  of  the  removal  cannot  be 
recovered,  it  is  said/^^  and  the  increased  cost  of  procuring  water 
for  his  stock  and  family  at  the  place  to  which  he  removes  has 
also  been  excluded  from  consideration.^^^ 

The  value  at  maturity  of  the  crops,  which  the  lessee  would 
have  gathered  had  the  eviction  not  taken  place,  cannot  be  re- 
covered without  allowing  the  landlord  for  the  balance  of  the 
rent  to  be  paid,  since  this  is  one  of  the  necessary  expenses  of 
obtaining  the  crop.^*'^ 

The  lessee  cannot  recover  both  the  value  of  the  term  and  also 
the  cost  of  labor  in  making  the  land  ready  for  cultivation,^^! 
but  on  the  other  hand  the  lessor  cannot  claim  an  allowance  for 
his  labor  in  wro.ngfully  gathering  the  crops. ^^^  The  expense  of 
the  lessee's  removal  to  another  residence  has  been  allowed.^ ^^ 
In  one  case  the  tenant  was  even  allowed  the  expense  of  guards 
employed  by  him  before  he  vacated  in  order  to  prevent  the 
entry  on  the  premises  of  defendant's  employees  for  the  purpose 
of  demolishing  the  building.^^^^ 

The  plaintiff  may  recover  for  injury  to  his  feelings  caused  by 
the  eviction,  it  has  been  decided,  where  the  wrong  was  willful 
or  done  with  gross  disregard  of  the  lessee's  rights,  but  not  for 
grief  at  illness  in  his  family  resulting  from  the  eviction,  nor  for 
the  personal  exposure  of  himself  and  family  in  seeking  another 
shelter.164 

157  Robrecht    v.    Marling's    Adm'r,  jectural  at  the  time  of  the  eviction, 

29  W.  Va.  765,  2  S.  E.  827,  6  Am.  St.  though    ascertained    at   the    time    of 

Rep.  676.  bringing     suit. 

15S  De  La  Zerda  v.  Korn,  25  Tex.  lei  Comelissens      v.      Driscoll,     89 

Supp.    193;     Wilkinson    v.     Stanley  Mich.  34,  50  N.  W.  746. 

(Tex.  Civ.  App.)    43   S.  W.  606.  162  Jefcoat  v.  Gunter,  73  Miss.  539, 

159  Wilkinson  v.  Stanley  (Tex.  Civ.  19  So.  94. 

App.)    43  S.  W.  606.  163  Jennings  v.  Bond.  14  Ind.  App. 

160  Jefcoat  V.  Gunter,  73  Miss.  539,  282,  42  N.  E.  957;  Wade  v.  Herndl, 
19  So.  94;  Merritt  v.  Closson,  36  Vt.  127  Wis.  544,  107  N.  W.  4;  McEl- 
172.  See  Freeman  v.  Slay  (Tex.  Civ.  vaney  v.  Smith,  76  Ark.  468,  88  S.  W. 
App.)  13  Tex.  Ct.  Rep.  664,  88  S.  W.  981;  Grosvenor  Hotel  Co.  v.  Hamll- 
404.  ton  [1894]  2  Q.  B.  836  (semble). 

In  Shutt  V.  Lockner,  77  Neb.  397,  issa  Gray  v.  Linton,  38  Colo.  175,  88 

109  N.  W.   383,  it  was  decided  that  Pac.  749. 

the    lessee    could    not    recover    the  le*  Fillebrown  v.  Hoaj,  124  Mass. 

profit    which   he    would    have    made  580. 
from  the  crop,  because  this  was  con- 


1296  EVICTION.  §  186 

The  tenant  may  recover  exemplary  damages  in  case  there  are 
circumstances  of  oppression  or  aggravation,^®^  but  he  must  for 
this  purpose,  it  is  said,  show  that  the  act  complained  of  was 
wanton  and  malicious  ;^^*^  and  in  another  case  it  is  said  that  the 
lessor  is  not  liable  for  such  damages,  even  though  the  eviction 
was  unlawful  and  violent,  if  the  lessor  honestly  entertained  the 
belief  that  he  had  a  right  to  evict  the  lessee.^  ^^ 

In  one  state  it  has  been  decided  that  a  lessee  for  years  can, 
under  the  local  statute,  recover  treble  damages  against  the  land- 
lord for  wrongful  and  forcible  entry  and  expulsion,i68  and  it 
seems  that  the  state  statutes  in  reference  to  forcible  entry  would 
ordinarily  apply  in  favor  of  a  tenant  forcibly  expelled  by  the 
landlord  during  the  term.^^® 

§  186.     By  third  person. 

a.  Under  title  paramount — (1)  What  constitutes  title  para- 
mount. An  eviction  under  title  paramount  oecurs  when  the  ten- 
ant is  deprived  of  possession  by  one  having  a  right  to  such  pos- 
session not  derived  from  the  tenant  himself,  which  takes  prece- 
dence of  the  rights  of  the  tenant  under  the  lease.^'^o  The  expres- 
sion "title  paramount"  does  not,  in  this  connection,  necessarily 
refer  to  a  title  superior  to  that  which  the  landlord  originally  had, 
but  it  includes  a  title  derived  from  the  landlord  himself  which,  as 
being  prior  to  the  lease,  takes  precedence  thereover.^'''^^  For  in- 
stance, if  the  tenant  under  the  lease  is  dispossessed  by  one  claim- 
ing under  a  valid  prior  lease  made  by  the  same  lessor,  there  is  an 
eviction  by  title  paramount  ;i'^i  and  there  is  likewise  such  an  evic- 

165  Gallagher     v.     Burke,     13     Pa.  R.    617;    Naglee   v.   Ingersoll,   7   Pa. 

Super.   Ct.   244;    Gray  v.  Linton,   38  185;   Seabrook  v.  Moyer,  88  Pa.  417. 

Colo.  175,  88  Pac.  749.  I'^oa  in    Hoopes    v.    Meyer,    1    Nev. 

1C6  Wamsganz  V.  Wolff,  86  Mo.  App.  433,  it  was  held  that  one  tenant  in 

205.  common    has    a    title    paramount   to 

167  Baumier    v.    Antiau,    65    Mich,  that  of  one  claiming  under  a  lease 

31,  31  N.  W.  888.  made  by  his   cotenant. 

188  Shaw  V.  Hoffman,  21  Mich.  151.  i"i  See    McAlester   v.    Landers,    70 

169  See  post,  chapter  XXI,  at  note  Cal.  79,  11  Pac.  505;  Tunis  v.  Grandy, 

198.       Compare     Cole     v.     Eagle,     8  22  Grat.  (Va.)   109;  Neale  v.  McKen- 

Bam.  &  C.  409;   Willard  v.  Warren,  zie,  1  Cromp.  M.  &  R.  61,  1  Mees.  & 

17   Wend.    (N.  Y.)    257;    commented  W.    747;     Lawrence    v.    French,    25 

on  in  Shaw  v.  Hoffman,  21  Mich.  151.  Wend.  (N.  Y.)  443   (sembte). 

i7»See  Poster  v.  Pierson,  4  Term 


ff   j^gg  BY  THIRD  PERSON.  1297 

tion  if  the  tenant  is  dispossessed  by  one  claiming  under  a  mort- 
gage or  other  lieJi  created  by  the  landlord  before  the  making  of 
the  lease,  as  when  it  is  by  a  mortgagee  having  the  legal  title,  with 
the  right  of  possession  thereunder,i'2  or  by  a  purchaser  at  fore- 
closure sale.1^3  Tj^g  ^-^ig  ^f  ^j^g  dispossessor  can,  in  such  cases, 
be  regarded  as  "paramount"  to  that  of  the  landlord  ooily  in  so 
far  as  any  grantee's  title  is  paramount  to  that  of  his  grantor.i^^ 
In  cases  where  the  eviction  is  by  one  having  a  valid  title  not  de- 
rived from  the  lessor,  the  title  is  evidently  "paramount"  in  the 
strictest  sense  of  the  term.  Occasionally  the  paramount  title 
is  that  of  the  lessor  in  chief  to  which  a  subtenant  is  compelled 
to  yield  upon  the  termination  or  forfeiture  of  the  principle  lease, 
this  effecting  an  eviction  of  the  subtenant  which  he  may  assert 
against  the  sublessor.^ '^'^ 

The  paramount  title  to  which  the  tenant  yields  must  in/olve 
a  present  right  of  possession  in  the  person  asserting  it,  and  there 
is  no  eviction  if  the  tenant  yields  possession  to  one  having  a  right 
to  possession  merely  at  some  future  day.^'^^  Accordingly,  it  has 
been  decided  that  a  tenant  yielding  possession  on  demand  to  a 
purchaser  at  foreclosure  sale,  before  the  latter  had  received  his 
deed  or  the  sale  to  him  had  been  confirmed,  could  not  claim  to 
have  been  evicted.^^^ 

(2)  Acts  constituting  eviction.  For  the  purpose  of  a.n  evic- 
tion by  title  paramount,  the  tenant  may  be  dispossessed  under 
legal  proceedings  on  the  part  of  the  holder  of  such  title,^'^^  cr  he 

172  See  Smith  v.  Shepard,  32  Mass.  Gear  v.  Boston  Little  Circle  Zinc  Co., 
(15    Pick.)    147,    25    Am.    Dec.    432;  126  Mo.  App.  173,  103  S.  W.  151. 
George  V.  Putney,  58  Mass.  (4  Cush.)        itg  Borough  of  Poole  v.  Whif-,  15 
351,  50  Am.  Dec.  788;    ante,  §  73  a.  Mees.  &  W.  577;    Camp    v.  Scot!,  47 

173  See  Simers  v.  Saltus,  3  Denio  Conn.  366;  Morse  v.  Goddard,  54 
(N.  Y.)  214;  O'Neill  v.  Morris,  28  Mass.  (13  Mete.)  177,  46  Am.  Dec. 
Misc.  613,  59  N.  Y.  Supp.  1075;  Kane  728. 

V.  Mink,  64  Iowa,  84,  19  N.  W.  852;  177  Peck  v.  Knickerbocker  Ice  Co., 

Mariner  v.  Chamberlain,  21  Wis.  251.  18  Hun  (N.  Y.)  183;  O'Neill  v.  Mor- 

See  ante,  §  73  b.  ris,  28  Misc.  613,  59  N.  Y.  Supp.  1075. 

174  See  Abbott's  Law  Dictionary,  i7£  Rawle,  Covenants  for  Title,  § 
sub.  verb.  "Paramount."  132;   Upton  v.  Townend,  17  C.  B.  34. 

175  Holbrook  v.  Young,  108  Mass.  The  relinquishment  of  possession 
83,  11  Am.  Rep.  310;  Home  Life  Ins.  by  the  tenant  on  the  issue  of  a  writ 
Co.  V.  Sherman,  46  N.  Y.  370;  Hy-  in  favor  of  a  prior  mortgagee  in- 
man  v.  Boston  Chair  Mfg.  Co.,  32  N.  volves  an  eviction.  Barnes  v.  Bel- 
Y.    St.   Rep.    113,    58    Super.    Ct.    (26  lamy,  44  U.  C.  Q.  B.  303. 

Jones  &  S.)    282,  11  N.  Y.  Supp.  52; 

L.  and  Ten.  82. 


1298  EVICTION.  I  186 

may,  it  seems,  be  dispossessed  by  the  latter  by  force  exerted  di- 
rectly by  himself  or  his  servants  without  any  judicial  author- 
ity/^^ as  when  the  owner  of  the  paramount  title  renders  the 
premises  untenantable  by  removing  part  of  a  structure  there- 
on.180  But  it  is  not  necessary  that  the  tenant  be  dispossessed  by 
legal  proceedings  or  by  the  exercise  of  force  on  the  part  of  the 
holder  of  the  superior  title,  it  being  sufficient  that,  upon  demand 
by  the  holder  of  the  paramount  title,  the  tenant  yields  possession 
to  him.^^i  There  are  occasional  decisions,  moreover,  that  there 
is  an  eviction  of  the  tenant  if  he  buys  the  paramount  title  to 
protect  his  possession. ^^2 

There  are  a  considerable  number  of  cases  to  the  effect  that, 
without  any  yielding  of  possession  to  the  paramount  claimant  or 
purchaser  of  the  paramount  title,  the  tenant,  if  he  attorns  to  the 
paramount  title  upon  the  hostile  assertion  thereof,  may  assert  such 
attornment  as  an  eviction.^s^     This  view  appears  to  be  entirely 

1T9  Foster  v.   Pierson,  4   Term   R.  forfeiture  of  a  lease  enforced  by  a 

617;    Parker   v.   Dunn,   47   N.    C.    (2  suit  in  ejectment,  a  sublessee  yielded 

Jones  Law)  203;  Ricketts  v.  Garrett,  possession,   not   to    the   original    les- 

11   Ala.   806.  sor,  who  enforced  the  forfeiture,  but 

180  Bentley  v.  Hill,  35  111.  414  (re-  to  the  sublessor,  and  it  was  held 
moval  of  wall  by  owner  thereof).  that  there  was  an  eviction,  since  the 

181  Carpenter  v.  Parker,  3  C.  B.  (N.  sublessor  could  transfer  the  pos- 
S.)  206;  Moffat  v.  Strong,  22  N.  Y.  session  to  the  lessor.  This  seems  to 
Super.  Ct.  (9  Bosw.)  57;  Tyson  v.  be  an  authority  to  the  effect  that  In 
Chestnut,  118  Ala.  387,  24  So.  73;  any  case,  if  the  paramount  title  Is 
Camp  V.  Scott,  47  Conn.  366;  Ham-  asserted  against  the  lessee,  he  may 
ilton  V.  Cutts,  4  Mass.  349,  3  Am.  Dec.  relinquish  possession  to  the  lessor 
222;    Marsh  v.  Butterworth,  4  Mich,  and  claim   an  eviction. 

575;  Home  Life  Ins.  Co.  V.  Sherman,  i«2  Ross    v.    Dysart,    33    Pa.    452; 

46  N.  Y.  370;  Hyman  v.  Boston  Chair  Hulseman     v.     Griffiths,     10     Phila. 

Mfg.    Co.,    58    N.    Y.    Super.    Ct.    (26  (Pa.)     350,    32    Leg.    Int.    208.     See 

Jones  &  S.)  282,  11  N.  Y.  Supp.  52.  Rawle,  Covenants  for  Title,  §  142;  g 

The   tenant   may  yield    possession  Am.  &  Eng.  EJnc.  of  Law    (3d   Ed.) 

to  the  holder  of  the  paramount  title  108. 

and    claim   an   eviction,    though    the  iss  Borough  of  Poole  v.  Whitt,  15 

demand   by    the   latter   was   not   for  Mees.     &     W.     571;      Merryman     v. 

the    possession    but    merely    for    the  Bourne,    76    U.    S.     (9    Wall.)     592; 

payment  of  rent  to  him.     Simers  v.  Lyon    v.    Washburn,    3    Colo.     201; 

Saltus,    3    Denio    (N.   Y.)    214.     The  Smith     v.     Shepard,     32    Mass.     (15 

demand  in  this  case  was  by  a  pur-  Pick.)   147,  25  Am.  Dec.  432;  Conley 

chaser  at  a  sale  under  a  mortgage.  v.  Schiller,  24  N.  Y.  Supp.  473;   Hol- 

In  Home  Life  Ins.  Co.  v.  Sherman,  brook    v.    Young,    108    Mass.    83,    11 

46   N.   Y.   370,  there  having  been  a  Am.  Rep.  310;  Morse  v.  Goddard,  54 


BY  THIRD  PERSON.  1269 

§  1^0 

.,  ,  •     •  1^184  v,nt  ihprp  are  a  number  of  cases  op- 

defensib  le  on  pnnciple/^^   but  tnere  are  a  uu. 

'Tht  ternttayieldin,  possession  on  demand  to  a  third  person 
asserting  a  claim  o£  superior  title,  takes  the  nsk  of  -eh  cam 
being  a  valid  one,  and  in  an  action  between  him  and  hvs  landlord, 
in  which  he  asserts  this  as  an  eviction  '-has  the  burden    fshow- 
in»  the  validity  of  the  claim  to  which  he  has  thus  yielded 
The  same  holds  true  in  the  ease  of  an  attornment,  without  a  yield- 
ing of  possession,  to  one  asserting  a  paramount  title,-'  and  like- 
wise in  the  case  of  the  tenant's  purchase  of  such  claim.     In    asc 
he  is  unwilling  to  take  this  risk  he  may  await  the  bringing  of  an 
at  on  by  the  claimant,  a.nd,  by  then  giving  to  the  party  bound 
by  the  covenant  for  quiet  enioyment,  the  lessor  or  the  owner 
of  the  reversion,  notice  of  the  action,  and  requiring  him  to  de- 
fend it   he  is  relieved  from  the  burden  of  subsequently  proving 
.  the   validity  of  the   alleged   paramount  title  in   an   action  by 
him  on  the  covenant  for  quiet  enjoyment.!" 

The  tenant  cannot  assert  an  eviction  by  reason  of  the  fact  that 
he  yielded  possession  or  attorned  to  the  holder  of  a  paramount 
title  unless  he  did  this  in  pursuance  of  a  hostile  assertion  of  such 
title'."'    By  hostile  assertion  of  title  in  this  connection  is  meant, 

,,,  M.t,.l  177  46  Am  Dec.  54  Mass.  (13  Mete.)  177,  46  Am.  Dec. 
Mass.  (13  "<"<^',"V,8  M^„  (4  728;  Marsh  v.  Butterworth,  4  Mich. 
'.'';?T.f  Jolm  Die  788  ROSS  575  Spear  v.  AUIso.,  20  Pa.  200; 
Cush.)  f  l'  ^»  *",.°''^rtin  ;  Mar.  Murray  v.  Pennington,  3  Grat.  (Va.) 
Iln"',"™    sS,    6l'Am    Bee.-  364;    91;    Raw.e,   Covenants   for  Title.    5 

MonU.„ye  v.  Wallahan,  ^4  UK  355;    l=f;  ^    ^„„„^   ,,  „.  g. 

Lunstord  V.Turner.  28  Ky.  (5  XJ^  ^^     ^^     g,.,. 

:Cl  '::Z":"^"^^   -rou^h  l.  poo.  ..  ....  is  Mees. 

Tw-r^^lSit':"-"  *":s"ante,  .  7.  .    (3),  at  no. 

I  rc2;"Lers  v.   Saltus    3   Deulo  "C  -^^  «a.,.  Covenants  ^^Tltl. 

rM  v^  21  fi-  West  Shore  Mills  Co.  V.  §§    117-l^b,    i^b.      iu«i«      pi 

Edwais  24(^.475, 33  Pa..  987.    See  be    no    reason    why    the    same    rule 

.Is  vfa   c   78  p    (2).  should  not  apply  as  to  the  proof  of 

^'SseanterTSp     2).  atnote  the    alleged    paramount    title    when 

184  See  ante,   s    '«  P  eviction    thereunder    is    asserted    in 

''Lsee  ante.  §  78  p   (2),  at  note   defense    to    a  ^l--  J-/-/,    Jf 

Wheelock    v.    Warschauer,    34    L.ai. 

184b  Hamilton  v.  Cutts,  4  Mass.  349,    265. 
3  Am.  Dec.  222;   Morse  v.  Goddard,       ist  See  Rawle,  Covenants  for  Title. 


1300  EVICTION.  §  186 

apparently,  an  assertion  of  title  made  in  such  mannef  and  under 
such  circumstances  that  the  tenant  has  reason  to  believe  that, 
unless  he  does  yield  possession  or  attorn,  the  owner  of  the 
paramount  title  will  assert  his  claim  by  legal  proceedings.^^^ 
When  an  action  has  been  actually  instituted  for  this  purpose, 
there  can,  it  seems  clear,  be  no  question  as  to  the  hostile  assertion 
of  the  title.189'  i^o 

(3)  Effect  of  eviction.  The  effect  of  the  tenant's  eviction, 
actual  or  constructive,  under  paramount  title,  is  ordinarily  to  end 
the  relation  of  landlord  and  tenant,^^^  such  an  eviction  being  thus 
different  in  its  effect  from  an  eviction  by  the  landlord.^ ^2  n 
has  apparently  been  decided  that  such  is  the  effect  of  an  eviction 
under  a  judgment  in  favor  of  a  stranger,  even  though  the  judg- 
ment is  afterwards  reversed.^^^  AVhether,  after  an  eviction  by 
virtue  of  a  paramount  mortgage  or  lien  in  favor  of  a  third  person, 

§  135;  8  Am.  &  Eng.  Enc.  of  Law  (2d  get  rid  of  the  lease  is  immaterial, 
Ed.)  110,  and  cases  cited  ante,  §?  but  that  it  would  be  otherwise  if 
19  b  (3),  73  a.  bis  desire  found  expression  in  con- 
In  Mattoon  v.  Munroe,  21  Hun  (N.  duct  or  words. 
Y.)  74,  it  was  held  that  when  a  lease  iss.  iso  See  8  Am.  &  Eng.  Enc.  Law, 
of  a  dock  provided  that  rent  should  113. 

be  paid  only  until  the  lessor's  license  loi  Wheelock    v.    "Warschauer,    34 

from  the'  state  should  be   rescinded  Cal.  265;  Fitzgerald  v.  Beebe,  7  Ark. 

and  the  lessee  dispossessed,  the  les-  310';  Gartside  v.  Outley,  58  111.  210,  11 

see  could  not  defend  against  rent  on  Am.     Rep.     59;     Fitchburg     Cotton 

the  ground  of  a  rescission  of  the  li-  Manufactory    Corp.     v.    Melven,     15 

cense   if   this   was    procured    by   the  Mass.    268;    Stubbirgs    v.    Evanston, 

lessee   acting  in    collusion   with   the  136  111.  37.  26  N.  E.  577,  11  L.  R.  A. 

state  officers.  839,  29  Am.  St.  Rep.  300;  Mussey  v. 

188  See  cases  cited  8   Am.  &  Eng.  Holt,  24  N.  H.  248,  55  Am.  Dec.  234; 

Enc.  Law  (2d  Ed.)  113,  and  ante,  §  Friend   v.  Oil  Well  Supply  Co.,  165 

78  p    (2).  Pa.    052,    30   Atl.    1134.     So    in   And- 

In  In  re  Emery  &  Barnett,  4  C.  B.  rews  v.  Needham,  Noy,  75,  Cro.  Eliz. 

(N.  S.)  423,  the  fact  that  the  tenant,  656,  it  is  decided  that  by  the  entry 

in  yielding  possession  to  the  holder  under   elder  title   the  .tenant    is   re- 

of  the  paramount  title,  did  so  will-  lieved  from  a  covenant  to  repair  and 

ingly,    desiring    to    get    rid    of    the  j'ield  up  at  the  end  of  the  term,  "for 

lease,   was    regarded    as   tending   to  if  the  land  be   gone,  the  obligation 

show  that  ha,  acted  voluntarily  and  is     discharged."     See,     also,     Whee- 

not   under    compulsion.     In    Geer   v.  lock  v.  Warschauer,  34  Cal.   265. 

Boston  Little  Circle  Zinc  Co.,  126  Mo.  192  See  ante,   §    185  h. 

App.  173,  103   S.  W.  151,  it  is  said  "3  Montanye  v.  Wallahan,   84   111. 

that    the    tenant's    secret    desire    to  355. 


BY  THIRD  PERSON.  1301 

the  tenancy  is  revived  upon  a  redemption  *«f;;».  J?^^^^ 
to  have  been  the  subject  of  decision  in  only  one  ease,  *"« 
it  was  held  that  sueh  revival  did  take  place  "«  On  such  a  theo^ 
he  tenancy  would,  in  the  meanwhile,  be  m  abeyance  so  far  as 
regards  thi  payment  of  rent  under  the  lease  -^  Presumably  a 
regards  any  other  obligations  upon  the  part  of  the  tenant.  The 
effect  of  an  eviction  by  paramount  title  in  t"nunating  m  wh 
or  in  part,  the  liability  for  rent  has  been  elsewhere  referred  to 

b  wrongful  acts  of  third  persons.  Except  m  the  case  of  m 
eviction  by  title  paramount"'  there  is,  as  was  before  stated,  no 
ev  ction  in  the  legal  sense  of  the  term,  when  the  tenant  s  pos- 
:^or  enjoym:nt  is  interfered  with  by  a  *-d  P-son  no 
actin-  by  the  landlord's  authority  or  with  his  consent^  This  s 
so  whether  such  interference  involves  an  unauthorised  trespass 
on  the  leased  premises,  or  other  wrongful  act,-»  or  whether  it  is 

i^     9S  N   H    543    61  Am.  Dee.  629.     ling  v.  Holmes,  23  Cal.  227.  S3  &m. 
Id.,  28  N.  H.  01S.  oi     .,..  ,u.  „„„.   Dec    111;    Elsenhart    v.    Orflean.    S 

j?.erreranTr.:,rd  c.  - -.- ^-^rn 

eviction  and  prior  to  tae  reue    y  y/Qq.  McNairy  v   Hicks,  62  Tenn. 

L.c.an..a.reat.o,.ec,^^^^^^^^^^ 

r  re°";i  rev>rn,:ia.  :  OMO  St.  6.7;  0^-^.^  rT'  ^l  n: 

to  Vay  the  sam.  rent  to  such  claim-    Hart,  25  Pa.  193,  64  Am.  Dec.  691. 

He  noias  iuiqli  lug  y  .  r,o  r>\     tractor  employed  by  the  landlord  to 

ant  by  a  --^^^-'^  '^"^/vL  evic:  «  kon    a«olning    premise.    Tal- 

uon  rif:::'.'^;^  to  i:  z  ^ott  v.  ^0.,,=^,  1.6  m^. ....  5,  n.  ^ 

tion,  reluse  lo  p^j    i  ^^^         ^  sheriff, 

^eed'tr  me'  rf  Pe "er/n  t"o  a«e.  attaoMn.  ebattels  on  tbe 

::nt  .  sne^  Ca.mant  and  bas  tben  ---^ 'r^^rr: 

failed  to  pay  It  ^     ^^^  ^^^^  ^^^^^^  ^^    ^^  ^^^  ^ 

See  ante  I  182  e  (2).  ^^      ^^_^.^^^  ^    ^^^_^    _j,  ^^^^^ 

"'.KTm^'v'  Grand  l^age  of  Ma-  395.    And  there  wa«  -;.-';<'o";' » 
so^   m  Masa.  59;  Talbott  v.  Ear   subtenant  because  the  chief  laad.ord, 


1302  EVICTION.  §  186 

the  result  of  lawful  acts  by  adjoining  owners  or  others/ ^^  as 
when  adjoining  land  is  so  improved  by  the  owner  thereof  as  to 
cut  off  the  light  and  air.200  Qq  i\^q  tenant  of  an  apartment  can- 
not assert  that  he  has  been  evicted  because  the  tenants  of  other 
apartments  have  interfered  with  his  possession  or  enjoyment  by 
acts  in  which  the  landlord  in  no  way  participated  and  to  which 
he  did  not  conse.nt."^^  On  the  other  hand  there  is  an  eviction, 
in  legal  effect  by  the  landlord  himself,  if  the  tenant's  possession 
or  enjoyment  is  interfered  with  by  one  acting  under  the  land- 
lord's authority,  express  or  implied.2<>2,  203 

who    was,    as    to    him,    a    stranger,  There  was  properly  no  lease  in  this 

wrongfully  interfered   with   his   pos-  case,  but  merely  a  license, 

session.     Luckey  v.  Frantzkee,  1   E.  201  Seaboard  Realty  Co.  v.   Fuller, 

D.  Smith  (N.  Y.)  47.  33  Misc.  109,  67  N.  Y.  Supp.  146;   De 

199  There  was  no  eviction  when  the  Witt  v.  Pierson,  112  Mass.  8;  Conrad 
tenants'  continued  possession  was  Seipp  Brew.  Co.  v.  Hart,  62  111.  App. 
rendered  impossible  by  the  fact  that  212;  Gray  v.  Gaff,  8  Mo.  App.  329. 
the  adjoining  owner  pulled  down  There  was  accordingly  no  eviction 
the  division  wall  in  order  to  rebuild  when  the  tenant  of  an  apartment 
it  as  a  party  wall,  as  he  was  allowed  used  it  as  a  house  of  ill  fame,  though 
to  do  by  the  local  statute  (Barns  v.  this  compelled  the  abandonment  of  a 
Wilson,  116  Pa.  303,  9  Atl.  437),  or  neighboring  apartment  by  the  tenant 
where  the  owner  of  the  adjoining  lot  thereof,  the  landlord  not  being  cog- 
made  excavations  causing  the  build-  nlzant  of  such  use.  Gilhooley  v. 
ing  to  fall  (Eisenhart  v.  Ordean,  3  Washington,  4  N.  Y.  (4  Comst.)  217. 
Colo.  App.  162,  32  Pac.  495;  Howard  Aliter,  by  some  cases,  when  the  land- 
V.  Doolittle,  10  N.  Y.  Super.  Ct.  (3  lord  was  cognizant  of  such  use.  See 
Duer)  464;  Ramsay  v.  Wilkie,  36  N.  ante,   note  97. 

Y.  St.  Rep.  864,  IS  N.  Y.  Supp.  554),  202,  2(>3  Warren  v.  Wagner,  75  Ala. 

or  removed  party  stairs  in  the  course  188,    51    Am.    Rep.    446;    Hyman    v. 

of  the  lawful  removal  of  the  adjoin-  Jockey   Club  Wine,   Liquor   &  Cigar 

Ing    building.     Manville    v.    Gay,    1  Co.,    9    Colo.   App.   299,    48   Pac.   671 

Wis.  250,  60  Am.  Dec.  379.  (sheriff  acting  under  landlord's  ord- 

200  Hazlett  V.  Powell,  30  Pa.  293;  ers) ;  Sherman  v.  Williams,  113 
Johnson  v.  Oppenheim,  12  Abb.  Pr.  Mass.  481,  18  Am.  Rep.  522;  City 
(N.  S.)  454,  43  How.  Pr.  433,  55  N.  Y.  Power  Co.  v.  Fergus  Falls  Water  Co., 
280;  Hllliard  v.  Gas  Coal  Co.,  41  55  Minn.  172,  56  N.  W.  685,  1006. 
Ohio  St.  662.  52  Am.  Rep.  99.  So  In  Kelly  v.  Miles,  48  Hun  6,  15  N. 
when  the  view  of  the  premises  is  y.  St.  Rep.  319,  afd.  122  N.  Y.  645, 
ci^t  off  so  as  to  obscure  the  tenant's  25  N.  E.  957,  it  was  held  that  if  a 
6ic-n.  See  Oakford  v.  Nixon,  177  subtenant  gave  up  possession  for  a 
Pa.  76,  35  Atl.  588,  34  L.  R.  A.  575,  certain  time  that  the  owner  might 
where  the  view  of  a  wall  "leased"  make  improvements,  the  subtenant 
for  bill  posting  was  cut  off  by  a  agreeing  to  pay  rent  during  such 
screen    on    an    adjoining    building,  time,  he  was  relieved  from  rent  if 


§  186  BY  THIRD  PERSON.  1303 

The  question  whether  the  landlord  has  thus  authorized  or  con- 
nived at  the  wrongful  acts  is  said  to  be  a  question  for  the  jury 
on  all  the  evidence  in  the  ease.^o^  The  subsequent  leasing  by  the 
lessor  of  premises  adjoining  those  leased,  with  knowledge  that 
the  second  lessee  intends  to  make  use  of  the  premises  in  a  par- 
ticular way,  is  sufficient,  it  seems,  to  make  the  lessor  a  party  to 
such  use  for  the  purpose  of  determining  whether  there  is  an 
eviction  ;205  but  even  an  express  authorization  by  the  landlord 
to  a  third  person  to  interfere  with  the  possession  of  the  tenant 
cannot  be  regarded  as  making  such  interference  in  effect  an 
eviction,  if  this  was  clearly  intended  to  be  effective  only  in  case 
the  tenant  also  gave  such  authorization.^o^ 

It  has  been  held  in  one  case  that  it  is  a  question  for  the  jury 
whether  an  eviction  resulted  from  the  giving  of  singing  lessons 
by  the  tenant  of  an  apartment  adjoining  that  leased  to  the  per- 
son asserting  the  eviction. ^ot  Unless  the  adjoining  apartment 
was  leased  for  the  giving  of  such  lessons  or  the  lessor  connived 
in  such  use  thereof,  it  does  not  seem  that  the  lessor  could  be  held 
responsible  for  its  use  for  that  purpose,^^^  and  even  his  consent  to 
such  use  should  not  have  that  effect  unless  he  knew  that  the  use 
was  to  be  excessive,  and  consequently  such  as  to  constitute  a  nui- 
sance.208a     ^g  -yyas  said  in  a  previous  case  in  the  same  jurisdic- 

kept  out  of  possession  a  time  longer  authorized    or   assented    to    the   act 

than  that  agreed,  the  interfering  oc-  complained  of  as  wrongful." 

cupation    being   by   the    owner   v/lth  205  Halligan  v.  Wade,  21  111.  470,  74 

the  sublessor's  assent,  and  this,  con-  Am.  Dec.  108;  Lay  v.  Bennett,  4  Colo. 

Bequentlj%    constituting    an    eviction  App.  252,  35  Pac.  748.     See  Wade  v. 

by  the  latter.  Herndl,  127  Wis.  544,  107  N,  W.  4,  5 

204  Warren  v.  Wagner,  75  Ala.  188,  L.  R.  A.   (N.  S.)  855. 

51    Am.   Rep.   446,   where   it   is  said  206  McKenzie  v.  Hatton,  141  N.  Y. 

that   "the   nature   and    character    of  6,  35  N.  E.   929.     Here  the  landlord 

the  act,  taken  in  connection  with  the  gave    to    the    person    excavating   on 

relation  of  the  landlord  to  the  actor,  adjoining     property     permission     to 

his    employment    or    agency    in    the  enter  in  order  to  protect  the  walls, 

business  of  the  landlord,  and  the  ac-  and  it  was  held  that  if  such  person 

quiescence  of  the   latter   in    former  entered  without  also   procuring  the 

acts,  accompanied  by  circumstances  permission  of  the  tenant,  there  was 

Indicative  of  his  knowledge  that  the  no  eviction  by  the  landlord, 

act  was  done,  or  continued,  and  the  207  Chisolm  v.   Kilbreth,   88   N.   Y. 

absence  of  objection  upon  his  part,  Supp.  364. 

are  facts  which  must  be  considered  208  See  Sefton  v.  Juillard,  46  Misc. 

by  the  jury,  whose  business  it  is  to  68,  91  N.  Y.  Supp.  348. 

determine   the   inquiry   whether   he  208a  See  ante,  §  185  f  (8). 


1304  EVICTION.  I  186 

tion:  "An  eviction  cannot  be  predicated  of  acts  or  conduct,  how- 
ever wrongful  or  distressing,  unless  committed,  encouraged  or 
connived  at  by  the  landlord.  He  is  not  responsible  for  the  con- 
duct of  other  tenants  acting  within  their  rights  in  their  own 
apartments.  If  defendant's  grievance  is  a  substantial  one,  he  can 
secure  redress,  not  against  his  landlord,  but  against  the  offend- 
ing tenant  in  the  adjoining  premises.  "^''^  And  it  has  there  been 
held  that  the  principle  thus  enunciated  is  applicable  even  when 
the  lessor  is  by  the  lease  of  the  adjoining  apartment  given  an  op- 
tion to  terminate  the  tenancy  thereunder  in  case  of  the  use  there- 
of for  the  purpose  objected  to.^^o 

c.  Acts  of  public  authorities.  As  elsewhere  stated,  it  has  been 
decided  in  a  number  of  cases  that  the  taking  of  the  premises  by 
the  state,  or  an  agency  of  the  state,  for  a  public  use,  in  the  exer- 
cise of  the  power  of  eminent  domain,  is  not  an  eviction  of  the 
tenant,  though  it  results  in  his  forced  relinquishment  of  posses- 
sion.211  That  it  is  not  an  eviction  by  the  landlord  is  evident, 
but  in  its  nature  it  bears  considerable  similarity  to  an  eviction 
under  paramount  title.212 

Legal  action  on  the  part  of  the  municipal  authorities,  not  in- 
volving the  taking  of  the  premises  leased  but  merely  requiring  the 
cessation  of  a  particular  use  thereof,  or  the  repair  or  removal  of 
buildings  on  the  leased  land  for  the  sake  of  the  public  health  and 
safety,  cannot,  even  though  it  deprives  the  tenant  of  all  bene- 
fit under  the  lease,  be  regarded  as  an  eviction  by  the  landlordj^^s 
nor  can  it  be  regarded  as  an  eviction  under  paramount  title, 
since  the  tenant  is  still  left  in  possession  of  what  remains,  and 
the  municipality  does  not  have  nor  acquire  any  title,  and  does 
not  take  possession,  except  perhaps  for  a  merely  temporary  pur- 
pose. The  landlord  may  himself  carry  out  municipal  require- 
ments of  this  character,  legally  imposed,  without  effecting  an 

209  Seaboard  Realty  Co.  v.  Fuller,  293,  72  N.  Y.  Supp.  171;  Forster  v. 
33  Misc.  109,  67  N.  Y.  Supp.  146.  Eberle,  7  Misc.  490,  27  N.  Y.     Supp. 

210  Sefton  V.  Juillard,  46  Misc.  68,  986.  The  removal  by  the  municipal 
91  N.  Y.  Supp.  348.  authorities    of    structures    encroach- 

211  See  ante,  §  182  k,  at  note  9r;6.  Ing  on  the  street  is  not  an  eviction 

212  See  ante,  §  182  k,  at  note  976.  by  the  landlord.     McLarren  v.  Spald- 

213  Hitchcock  V.  Bacon,  118  Pa.  ing,  2  Cal.  510;  Burke  v.  Tindale,  12 
272,  12  Atl.  3.^2,  4  Am.  St.  Rep.  593;  Misc.  31.  33  N.  Y.  Supp.  20,  afd.  155 
Sieefel   v.   Rothschild,   64  App.    Div.  N.  Y.  673,  49  N.  E.  1094. 


^  ^gg  BY  THIRD  PERSON.  1305 

eviction,  althongh  such  acts,  done  by  liim  without  express  au- 
thority, would  have  justified  the  tenant  in  abandoning  posses- 
sion ;2i4  but  such  action  by  him,  without  any  formal  notice  to  that 
effect  from  the  building  department,  has  been  regarded  as  an 
eviction,2i5  and  a  like  view  was  taken  when  the  landlord  was  or- 
dered by  the  municipal  authorities  to  repair  the  building  under 
penalty  of  having  it  destroyed  by  the  authorities  if  he  failed  to 
do  so,  and  he  thereupon  destroyed  the  building.^i^  Likewise, 
there  was  held  to  be  an  eviction  when  the  landlord  intentionally, 
by  operations  on  adjoining  premises,  made  the  building  on  the 
leased  premises  unsafe  so  as  to  .necessitate  its  condemnation  by 
the  authorities.217 

214  Gallup  V.  Albany  R.  Co.,  65  N.  217  Silber  v.  T^arkln,  94  Wis.  9,  68 
Y  1-  Fleming  v  King,  100  Ga.  449,  N.  W.  406.  In  Snow  v.  Pulitzer,  142 
28  s'  E  239;  Barnum  v.  Fitzpatrick,  N.  Y.  263,  36  N.  E.  1059.  the  lessor 
46  N  Y  St.  Rep.  891,  19  N.  Y.  Supp.  was  held  liable  for  the  injury  to  his 
385-  Markham  v.  David  Stevenson  lessee  by  the  destruction,  under  order 
Brew  Co.,  51  App.  Div.  463,  64  N.  Y.  of  the  municipal  authorities,  of  the 
Supp.  617;  Id.,  169  N.  Y.  593,  69  N.  building  in  which  the  leased  prem- 
E  1097;  Beakes  v.  Haas,  36  Misc.  ises  were  situated,  as  a  result  of  the 
796    74  N.  Y.  Supp.  843.  withdrawal  by  him  of  the  support  of 

215  Brown  v.  Wakeman,  42  N.  Y.  St.  an  adjoining  building,  though  he  did 
Rep   677    16  N.  Y.  Supp.  846.  not  Intend  to  injure  the  former  build- 

216  Utah  Optical  Co.  v.  Keith,  18  ing  or  the  occupants  thereof  by  his 
Utah    464    56  Pac    155.  operations  on  the  adjoining  property. 


CHAPTER  XVIII. 

SURRENDER. 

f  187.    Nature  of  surrender. 

188.  Parties  to  surrender, 

a.  Persons  who  may  make  surrender. 

b.  Persons  to  whom  surrender  may  be  made. 

189.  Express  surrender. 

a.  Necessity  of  writing. 

b.  By  cancellation  of  lease. 

c.  Necessity  of  seal. 

d.  Necessity  of  acceptance. 

e.  Words  of  surrender. 

f.  Transfer  of  possession. 

g.  Surrender  in  futuro. 

h.     Surrender  for  purpose  of  new  lease. 

190.  Surrender  by  operation  of  law. 

a.  General  nature. 

b.  Acceptance  of  new  interest. 

(1)  Acceptance  of  lease. 

(a)  The  general   doctrine. 

(b)  Intention  of  parties. 

(c)  What  constitutes  new  lease. 

(d)  New  lease  to  assignee  of  leasehold. 

(2)  Acceptance  of  different  class  of  interest. 

c.  Transfer  of  possession  to  landlord. 

(1)  The  general  doctrine. 

(2)  Resumption  by  landlord  of  possession  necessary, 

(3)  What  constitutes  resumption  of  possession. 

(4)  Reletting  by  landlord  to  another. 

(5)  Relinquishment  of  possession  on  landlord's  demand, 

d.  New  lease  to  third  person, 

191.  Effect  of  surrender. 

a.  As  between  the  parties, 

b.  As  against  third  persons. 


c  ^gy  NATURE,  1307 

§  187.    Nature  of  surrender. 

"Surrender"  is  defined  by  Lord  Coke  as  a  yielding  up  of  an 
estate  for  life  or  years  to  him  that  hath  an  immediate  estate  m 
reversion  or  remainder,  wherein  the  estate  for  life  or  years  may 
drown  by  mutual  agreement  between  them.i  This  definition  has 
been  followed,  more  or  less  closely,  by  such  other  writers  as  have 
undertaken  to  define  the  term,^  and  there  has  never  been  any 
question  made  as  to  its  substantial  correctness.  A  surrender, 
then,  is  a  particular  mode  or  form  of  transfer  which  derives  its 
distinguishing  characteristics  from  the  fact  that  it  is  made  by  the 
tenant  of  a  particular  estate  to  the  reversioner  or  remainderman. 

This  technical  meaning  of  the  word  has,  unfortunately,  been 
to  some  extent  obscured  by  its  frequent  use  in  an  untechnical 
sense,  as  referring  to  the  relinquishment  or  yielding  up,  not  of  an 
estate,  but  of  the  possession  of  the  premises,  as  when  the  lessee 
covenants  to  "surrender"  the  premises  in  good  condition  at  the 
end  of  the  term,  and  the  courts,  as  will  be  shown  hereafter,  fre- 
quently, in  using  the  term,  fail  to  clearly  distinguish  between  such 
a  surrender  of  possession  and  a  surrender,  properly  so  called,  of 
a  particular  estate  for  life  or  for  years.2''  Quite  frequently,  in 
using  the  term  even  in  its  technical  sense,  a  surrender  "of  the 
lease"  is  spoken  of,  but  this  must  be  understood  as  merely  an  el- 
liptical expression  signifying  a  surrender  of  the  particular  estate 
or  term  created  by  the  lease. 

It  seems  desirable,  in  order  to  form  a  clear  idea  of  the  law  of 
surrender,  to  briefly  consider  its  relation  to  that  of  merger,  which 
latter,  though  formerly  the  subject  of  much  discussion  and  ad- 
judication, is  at  the  present  time  of  but  little  practical  importance. 
In  the  case  of  a  surrender,  the  particular  estate  for  life  or  for 

1  Co  Litt.  337  b.  ^^  agency  in  either  lessee  to  act  for 

2  See  Cruise  Dig.  tit.  32,  c.  7,  §  1;  the  other  in  malting  such  surrender. 
2  Piatt,  Leases,  499;  Comyn,  Landl.  The  stipulation  was  really  for  a  sur- 
&  Ten.,  336;  Taj'lor,  Landl.  &  Ten.  §  render  of  the  possession,  that  is,  that 
507;  I'washhurn,  Real  Prop.  §  735.  the    lessees    should    relinquish    pos- 

2a  In  Bergland  v.  Frawley,  72  Wis.  session  upon  the  contingency  named, 
559,  40  N.  W.  372,  there  was  a  pro-  and  so  its  effect  might  seem  to  have 
vision  in  the  instrument  of  lease  been  to  create  a  limitation  upon  the 
that  on  a  certain  contingency  the  duration  of  the  term,  taking  effect, 
lessees  should  surrender  the  prem-  without  any  action  by  the  lessor  or 
Ises  if  demanded  by  the  landlord,  lessee,  upon  the  happening  of  the 
and  the  court  says  that  this  implied   contingency.     See  ante,  §  12  d. 


1308  SURRENDER.  §  Igy 

years  comes  to  an  end  as  a  result  of  the  act  of  surrender,  in  com- 
pliance with  the  intention  with  which  the  surrender  was  made, 
while  a  merger  of  the  particular  estate  in  the  reversion  occurs 
as  a  result  of  the  fact  that  the  two  estates  are  vested  in  one  per- 
son, by  a  conveyance  either  of  the  reversion  to  the  particular 
tenant,  or  of  the  particular  estate  to  the  reversioner.^  For  most 
all  practical  purposes,  however,  it  is  entirely  immaterial  whether, 
upon  a  conveyance  of  the  particular  estate  to  the  reversioner,  the 
consequent  destruction  of  the  estate  be  regarded  as  a  result  of 
the  fact  that  the  conveyance  was  intended  to  take  effect  as  a  sur- 
render, or  of  the  fact  that,  both  estates  being  vested  in  the  same 
person,  the  particular  estate  is  merged.  There  is,  however,  it  is 
said,  one  case  in  which  there  is  a  difference  in  the  practical  re- 
sults of  a  surrender  and  of  a  merger.  When  there  is  a  life  es- 
tate in  one  person,  with  a  reversion  in  two  persons  as  joint  ten- 
ants, if  the  tenant  for  life  should  surrender  his  estate  to  one  of 
the  joint  tenants,  it  would  be  extinguished,  since  a  surrender  to 
one  of  two  joint  tenants  is  as  effectual  as  a  surrender  to  both, 
while,  on  the  other  hand,  if  the  life  tenant  should  make  a  con- 
veyance to  one  of  the  reversioners,  which  is  not  intended  to,  and 
does  not,  take  effect  as  a  surrender,  but  is  merely  such  as  might 
be  made  to  a  stranger,  one  moiety  only  of  the  life  estate  would 
be  merged  in  the  moiety  of  the  reversion  belonging  to  the  gran- 
tee, and  the  other  moiety  of  the  life  estate  would  be  vested  in 
such  grantee  as  tenant  pur  autre  vie,  with  the  reversion  thereooi 
in  the  other  joint  tenant.^  Since,  however,  a  surrender  may  be 
effected  by  any  words  of  conveyance,  it  seems  that  the  presump- 
tion would  always  be,  in  the  absence  of  an  express  showing  to  the 
contrary,  that  the  instrument  transferring  the  particular  estate 
to  the  reversioner  was  intended  to  take  effect  as  a  surrender,^ 
and  consequently,  even  in  the  case  above  suggested,  of  a  con- 
veyance to  one  of  two  joint  tenants  of  the  reversion,  the  particu- 
lar estate  would  ordinarily  be  extinguished  as  a  whole  and  not 
in  part  only. 

Cases  in  this  country  occasionally  refer  to  the  "rescission"  or 
"cancellation"  of  the  lease  by  the  parties  thereto,  without  ap- 

33  Preston,  Conveyancing,  8;  Chal-    Conveyancing,      24;      Challis,     Real 

lis.  Real  Prop.  (2d  Ed.)  77.  ^^^P"    ^^d  Ed.)    77. 

5  Sheppard's     Touclistone      (Pres- 
*Co.  Litt.  183  a,  192  b;  3  Preston,    (-oQ-g  ^^  )   307^ 


§  187 


NATURE. 


1300 


parently  recognizing  that  a  termination  of  the  tenancy  as  a  re- 
sult of  an  agreement  of  the  parties,  made  subsequently  to  its  cre- 
ation, necessarily  involves  the  divesting  of  a  leasehold  estate 
out  of  the  lessee,  or  his  assignee,  and  a  revesting  thereof  in  the 
landlord.^**  After  an  estate,  whether  in  fee  simple  or  for  life  or 
for  years,  has  been  conveyed,  the  grantor  and  grantee  in  the  con- 
veyance cannot  effect  a  reconveyance  of  the  estate  to  the  former 
by  undertaking  to  "rescind"  or  "cancel"  the  original  convey- 
ance.^^ The  parties  to  a  contract  can  rescind  or  cancel  the  con- 
tract, that  is,  they  can  make  a  new  contract  by  which  each  agrees 
to  forego  his  rights  under  the  previous  contract,  but  the  mere 
making  of  a  new  contract  can  never  transfer  property  rights, 
even  to  a  person  in  whom  they  were  formerly  vested.  Any  rescis- 
sion or  cancellation,  so  called,  of  a  lease,  by  the  parties  thereto, 
must  consequently,  in  order  to  terminate  the  tenancy,  constitute 
in  legal  effect  a  surrender,  and  must  satisfy  the  requirements  ex- 


5a  See  Silva  v.  Bair,  141  Cal.  599, 
75  Pac.  162;  Evans  v.  McKanna,  89 
Iowa,  .'362,  56  N.  W.  527,  48  Am.  St. 
Rep.  390;  Andre  v.  Graebner,  126 
Mich.  116,  85  N.  W.  464;  Geddis  v. 
Folliett,  16  S.  D.  610.  94  N.  W.  431. 

In  Leavitt  v.  Stern,  159  111.  526,  42 
N.  E.  869,  it  was  decided  that,  since 
an  executory  contract  under  seal  can- 
not be  modified  by  a  parol  agree- 
ment, an  oral  agreement  for  a  new 
lease  (meaning  thereby  presumably 
an  oral  lease)  does  not  effect  a  sur- 
render of  a  previous  lease  under 
seal.  And  see  Duncan  v.  Moloney, 
115  111.  App.  522.  In  Alschuler  v. 
Schifl,  164  111.  298,  45  N.  E.  424,  parol 
evidence  of  an  agreement  for  sur- 
render and  the  relinquishment  of 
possession  accordingly  was  held  to 
be  admirsible  on  the  theory  that  a 
sealed  contract  can  be  abrogated  and 
cancelled  by  parol,  though  not  altered 
or  modified  thereby.  It  would,  it  is 
conceived,  have  been  preferable  to 
treat  this  as  a  surrender  by  opera- 
tion of  law,  resulting  from  delivery 
and  acceptance  of  possession. 


In  Stott  V.  Chamberlain  (S.  D.) 
114  N.  W.  683,  the  action  of  the  ten- 
ant in  notifying  the  landlord  that 
he  intended  to  vacate  the  premises, 
apparently  acquiesced  in  by  the  land- 
lord, was  regarded  as  effective  to 
"rescind  the  contract  of  lease." 
There  appears  also  to  have  been  a 
relinquishment  of  possession  to  the 
landlord  and  resumption  of  posses- 
sion by  him.     See  post,  §  190  c. 

In  Snyder  v.  Harding,  34  Wash. 
286,  75  Pac.  812,  it  was  held  that,  the 
tenant  having  "rescinded"  the  lease 
by  bringing  an  action  to  recover  the 
land  as  equitable  owner,  the  com- 
mencement of  an  action  by  the  land- 
lord to  recover  the  land  and  to  quiet 
the  title  was  an  "acceptance"  of  the 
"rescission."  A  preferable  way  to 
view  the  case,  it  might  be  suggested, 
would  be  to  consider  the  assertion 
of  title  by  the  tenant  as  giving  a 
right  of  forfeiture,  and  the  land- 
lord's action  as  an  election  to  enforce 
such  forfeiture.     See  post,  §  192. 

6b  See  post,  at  note  46. 


1310  SURRENDER.  §  188 

isting  with  reference  to  such  a  mode  of  conveyance.  The  same 
may  be  said  of  the  occasional  use  of  the  expression  "aba.ndon- 
ment"  of  a  lease,^^  apparently  meaning  thereby  either  an  agree- 
ment by  the  parties  to  ignore  it,  or  a  determination  by  the  lessee 
not  to  take  possession  under  it.  The  estate  vested  in  the  lessee 
by  the  lease  cannot  be  transferred  back  to  the  lessor  by  a  mere 
ignoring  of  the  true  state  of  the  case,  or  a  determination  by  the 
lessee  not  to  exercise  his  right  of  possession. 

§  188.     Parties  to  surrender. 

a.  Persons  who  may  make  surrender.  A  surrender  may  be 
made  by  such  persons,  and  no  others,  as  have  personal  capacity 
to  make  a  grant.^  Consequently,  a  surrender  by  an  infant  may 
be  repudiated  by  him  upon  his  attainment  of  full  age.'''  And  a 
surrender  by  one  non  compos  mentis,  even  if  regarded  as  voidable 
merely  and  not  absolutely  void,  may  be  repudiated  by  him  on 
recovery  of  his  faculties.^ 

It  is  said  that  a  lessee,  who  has  not  yet  entered  under  his  lease, 
cannot  make  an  express  surrender,  for  the  technical  reason  that, 
until  his  entry,  there  is  "no  reversion  in  which  the  possession 
may  drown,  "^  and  that  in  case  of  a  lease  to  take  effect  in  futuro, 
there  can  be  no  express  surrender,  since  there  is  no  reversion,  the 
lessee  having  merely  an  inieresse  termini}^  Whether  the  above 
distinctions  in  this  regard  would  be  recognized  at  the  present  day 
may  be  doubted,  and  certainly  a  transfer,  by  one  having  a  pres- 
ent term,  who  has  not  yet  entered,  to  the  lessor  or  his  transferee, 
might  well  be  regarded  as  extinguishing  all  rights  under  the 
lease,  w^hether  or  not  it  be  called  a  surrender.^ ^ 

One  claiming  under  an  assignment  of  the  leasehold  has  the 
same   right  as   the   original   lessee   to   surrender   such   interest. 

Be  In   Brandt  v.   Phillippi,  82    Cal.  lease,"  justifying  him  in  leasing  to 

640,  23  Pac.  122,  7  L.  R.  A.  224,  the  another. 

court  speaks  of   the  lease   as  being  «  Sheppard's  Tourhstone.  303". 

"waived    and   abandoned   by    mutual  t  Zouch  v.  Parsons,  3  Burrow,  1794. 

consent."     In    Gazzolo   v.   Chambers,  s  Thompson  v.  Leach,  2  Vent.  198, 

73  111.  75,  it  was  held  that,  the  les-  note.     See    authorities    cited    2    Tif- 

see  having  refused  to  state  whether  fany.  Real  Prop.  §  563. 

he  would  take  possession  under  his  »  Bac.  Abr.,  Leases    (S)   2,  2. 

lease  if  a  former  tenant  were  gotten  lo  Co.  Litt.  338  a. 

out,  the  lessor  could  regard  this  re-  n  Compare  ante,  §  37. 
fusal    as   an    "abandonment   of    the 


§  188  PARTIES.  1311 

even  though  he  has  not  entered  under  the  assignment,!^  as  has  an 
assignee  by  operation  of  law,  such  as  an  executor  or  admims- 

The  surrender  must  obviously  be  by  one  who  has  power  of  dis- 
position over  the  particular  estate  sought  to  be  surrendered.    Ac- 
cordingly, a  surrender,  by  a  husband,  of  the  leasehold  interest  m 
premises  occupied  by  him  as  a  homestead,  is  invalid  without  the 
joinder  of  his  wife,  he  having  no  power  by  his  sole  conveyance 
to   dispose  of  the  homestead.i^     And  one   of   several   joint  les- 
sees cajinot,  by  a  surrender,  destroy  the  interests  of  the  others,!^ 
though  he  may,  it  seems,  surrender  his  own  undivided  mterest.^s 
b     Persons  to  v/hom  surrender  may  be  made.     A  surrender 
can  be  made  only  to  a  person  having  the  next  immediate  estate 
following  (in  possession)  upon  the  particular  estate  surrendered.^^ 
Accordingly,   a  subtenant  cannot  surrender  to  the  chief  land- 
lord, unless  the  latter  has  first  acquired  the  original  leasehold  m- 
tere'st.18     For  the  same  reason,  ''if  a  lessee  grants  part  of  his 
estate  to  the  lessor,  whereby  a  reversion  continues  in  himself, 
this  is  no  surrender;  as  if  a  lessee  for  twenty  years  grants  all  his 
estate  to  the  lessor,  except  one  year,  month  or  day,  at  the  end  of 
the  term,  this  is  not  any  surrender,  because  the  lessee  has  a  re- 
version, "i»   and  consequently  there  is  an  estate  intervening  in 
possession  between  that  surrendered  and  that  of  the  person  to 
whom  the  surrender  is  made. 

If  the  landlord  has,  during  the  term,  made  another  valid  lease 
which  is  to  take  eft'ect  during  the  term,  a  "concurrent"  lease,i»'* 
the  reversion  on  the  first  lease  is  vested  in  the  second  lessee  and 
the  surrender  must  be  made  to  him.20  But  if  the  second  lease  is 
by  its  terms  not  to  take  effect  until  the  termination  of  the  first 

i2Bac    Abr     Leases    (S)    2,  2.  846,  27  L.  R.  A.  234,  the  court  stated 

i3Sheppard's  Touchstone.  303;  that  two  of  the  lessees  had  at  least 
Deane  v.  Caldwell,  127  Mass.  242.         tacit  authority  to  act  for  the  third 

i4Beranek    v.    Beranek,    113    Wis.    lessee   in   this  respect. 
272    89  N.  W.  146.  ^^  Sheppard's  Touchstone,  303. 

15  Williams  v.  Vanderbilt,  145  111.        it  Sheppard's  Touchstone,  303. 
238    34  N.   E.   476,   21   L.   R.   A.   489,        isB^c.  Abr.,  Leases   (S)   2,  1. 
36    Am.    St.    Rep.'  486;    Harford    v.        "2  Rolle,  Abr.  497,  quoted  in  Bur- 
Taylor,  181  Mass.  266,  63  N.  E.  902   ton  v.  Barclay,  7  Bing.  745. 
(sembl'e);    Edmonds  v.  Mounsey,  15       lea  See  ante,  §  146  d,  at  note  24. 
Ind.    App'.    899,    44    N.    E.    196.        In        20  Edwards  v.  Wickwar,  L.  R.  1  Eq. 
Hooks  V.  Frost,  165  Pa.  238,  30  Atl.   403;    Comyn,  Landl.  &  Ten.  336. 


1312  SURRENDER.  §  189 

term,  that  is,  if  it  is  a  lease  "in  reversion,"  it  passes  no  present 
interest  in  the  reversion,  and  the  surrender  of  the  first  leasehold 
must  be  made  to  the  original  lessor.^i 

Provided  the  person  to  whom  the  surrender  is  made  has  the 
immediate  reversion,  it  is  immaterial  that  his  only  interest  is  a 
term  of  years  shorter  than  that  surrendered.22  But  an  estate  for 
life  cannot  be  surrendered  to  one  who  has  a  reversion  for  years 
only.23 

In  the  ease  of  a  reversion  held  in  joint  tenancy,  a  surrender  to 
one  joint  tenant  is  effectual  as  to  all.^^ 

A  surrender  to  an  infant  or  insane  person  is,  no  doubt,  like  any 
other  conveyance  to  such  a  person,  valid,  so  far  as  for  the  bene- 
fit of  such  person,  until  repudiated  by  him  after  attaining  full 
legal  eapacity.25 

§  189.     Express  surrander. 

a.  Necessity  of  writing.  There  is,  in  the  law  of  surrender, 
a  distinction  of  primary  importance,  between  a  surrender  in  ex- 
press terms  and  a  surrender  which  the  law  implies  from  the 
acts  of  the  parties,  a  surrender  "by  operation  of  law."  We  will 
first  consider  the  requisites  and  characteristics  of  a  surrender 
m  express  terms,  known  as  an  "express  surrender"  or  as  a  sur- 
render "in  fact"  or  "in  deed."  Such  a  surrender  may  be  of  the 
leasehold  interest  in  either  a  part  or  in  all  of  the  premises.^^ 

At  common  law,  while  an  express  surrender  of  a  particular 
estate  in  a  thing  which  lay  in  grant,  that  is,  in  an  "incorporeal" 

21  Smith  V.  Day,  2  Mees.  &  W.  684.  held  in  joint  tenancy  or  as  tenants 
This  is  implied  in  the  decision  in  in  common.  In  Churchill  v.  Lam- 
Dlckson  V.  Lehnen,  37  Fed.  319,  that  mers,  60  Mo.  App.  244,  it  was  de- 
the  prior  lessee  has  no  right  to  sur-  cided  that  an  acceptance  of  a  sur- 
render possession  to  the  lessee  In  render  by  one  joint  lessor  bound  the 
reversion.  other,  so  as  to  bar  any  recovery  for 

22  Bac.    Abr.,    Leases     (S)     1,    2;  rent,  on  the  ground  that  one  of  two 

Hughes  V.  Robotham,  Cro.  Eliz.  302.  joint   obligees    can    release    an    obli- 

2s  Sheppard's    Touchstone,    303.  gation. 

24  Co.   Litt.    183    a,    192,    214    a;    3  2r,  gee  authorities  cited  2  Tiffany, 

Preston,    Conveyancing,    24.     But   in  Real  Prop.   §§   502,  503. 

Sperry    v.    Sperry,    8   N.    H.    477,    it  2n  Bac.     Abr.,    Leases     (S)     2,    3; 

was  decided  that  a  surrender  to  one  Pleasant    v.    Benson,    14    East,    234; 

of  two  joint  lessors  was  insufficient.  Ehrman  v.  Mayer,  57  Md.  612,  40  Am. 

It    does    not    appear    whether    they  Rep.  448. 


§    1S9  IN  EXPRESS  TERMS.  1313 

thing,  as  well  as  of  a  particular  estate  in  a  "corporeal"  thing 
which,  as  not  being  a  present  estate  in  possession,  was  transfer- 
able by  grant  only,  could  be  made  only  by  writing  under  seal,  a 
particular  estate  which  was  transferable  by  livery  of  seisin  or  by 
word  of  mouth,  such  as  a  present  estate  for  life  or  for  years  in 
a  corporeal  thing,  could  be  surrendered  by  word  of  mouth  mere- 
ly.27  This  was,  however,  changed  by  the  provision  of  the  Statute 
of  Frauds  (St.  29  Car.  2,  c.  3,  §  3),  that  no  leases,  estates  or  in- 
terests of  freehold  or  terms  of  years,  or  any  uncertain  interest 
in  lands,  tenements  or  hereditaments,  should  be  assigned,  granted 
or  surrendered,  unless  it  be  by  deed  or  note  in  writing,  signed 
by  the  party  so  assigning,  granting  or  surrendering,  or  his  agent 
thereunto  lawfully  authorized  by  writing,  or  by  act  and  operation 
of  law.  This  provision  has  been  recognized  as  operative  in  at 
least  one  state  in  this  country ,28  while  in  a  few  others  a  provision 
expressed  in  substantially  similar  language  has  been  adopted.^^ 
In  New  York  it  is  provided  that  no  estate  or  interest  in  lands, 
other  than  leases  for  a  term  not  exceeding  one  year,  shall  be 
granted,  assigned  or  surrendered,  unless  by  act  or  operation  of 
law,  or  by  deed  or  conveyance  in  writing,3o  and  approximately 
similar  language  has  been  adopted  in  a  number  of  other  states.^i 
In  Maine  it  is  merely  provided  that  no  estate  or  interest  in  lands 
can  be  granted,  assigned  or  surrendered,  unless  by  writing  signed 
by  the  grantor  or  his  attorney,32  and  in  other  New  England 
states  a  similar  provision  is  found,  with  the  addition  of  an  ex- 

27  Co.      Lltt.      338a;       Sheppard's       so  Real    Prop.    Law,    §    207.     See 

Touchstone,  300.  Coe  v.  Hobby,  72  N.  Y.  145,  28  Am. 

2s  In  Maryland.  See  Lamar  v.  Mc-  Rep.  120;   Ramsay  v.  Wilkie,  36  N. 

Namee,  10  Gill  &  J.  (Md.)  126,  32  Y.  St.  Rep.  864,  13  N.  Y.  Supp.  554. 
Am.  Dec.   152;    Lammott  v.  Gist,   2       si  Michigan    Comp.    Laws   1897,    § 

Har.    &    G.    (Md.)     433.     Also,    per-  9509;     Minnesota  Rev.    Laws    1905, 

haps,  in  Washington.     See  Hart  v.  §  3457;   Montana  Rev.  Codes  1907,  § 

Pratt,   19    Wash.    560,   53    Pac.    711;  79^7.    2^ehraska    Comp.    St.    1905,    § 

Richards  v.  Redelsheimer.  36  Wash.  gg.^.     ^,^^^^^^    ^^^p     ^^^^    ^^^^^ 

325,  78  Pac.  934.  ^    2694;    Utah    Comp.   Laws   1907,   § 

29Kirby's  Dia;.  St.  Arkansas,  1904,  .      -r^         „^     ho^o     o 

.,%,        oi.   ^nn^    ^  oAAo  1974;     Wisconsin    Rev.    St.    1898,    § 

§  3665;  Florida  Gen.  St.  1906,  §  2448;  „    '/ 

Missouri   Rev.    St.    1899.    §    3415;    2  2302.     See  Kittle  v.  St.  John.  7  Neb. 

Gen.   St.  New  Jersey,  p.  1602.   §   2;  73;    Biirnham   v.    O'Grady,    90    Wis. 

Pennsylvania    Act   March    21,    1772;  461,  63  N.  W.  1049. 

South    Carolina    Civ.    Code    1902.    §  32  Rev.  St.  1903,  c.  75,  §  13. 
2651. 

L.  and  Ten.  83. 


1314  SURRENDER.  §   Igg 

eeption  in  favor  of  a»n  assignment  or  surrender  "by  operation  of 
law.  "23  In  some  states,  where  the  local  statute  does  not  in  terms 
require  any  writing  in  the  case  of  a  surrender,  there  are  express 
provisions  that  any  interest  in  lands,  or  any  interest  greater  than 
a  lease  for  a  term  named,  can  be  transferred  or  assigned  only  by 
writing,34  and  these,  it  would  seem,  are  applicable  to  a  surrender 
as  well  as  to  any  other  co-nveyance.ss  In  some  states  there  are 
statutory  enactments  directed  in  terms  against  oral  contracts 
for  the  sale  or  transfer  of  interests  in  lands,  but  not  against 
oral  transfers  themselves.  So  far  as  such  a  provision  might  in 
any  state  be  construed  as  prohibiting  oral  conveyances  of  land, 
it  would,  it  seems,  apply  to  conveyances  by  way  of  surrender.^s 
The  third  section  of  the  English  Statute  of  Frauds,  requiring  a 
surrender  to  be  in  writing,  contains  no  exception  in  reference  to 
leases  for  short  terms,  such  as,  by  the  previous  sections,  exists  in 
connection  with  the  requirement  of  a  writing  for  the  creation 
of  a  leasehold  interest.  And  the  English  cases  are  to  the  effect 
that  the  requirement  of  a  writing  applies  to  a  surrender  of  a 
leasehold  interest  which,  under  the  previous  sections,  is  suscepti- 
ble of  creation  orally .37  In  Pennsylvania,  however,  strong  dis- 
approbation of  these  decisions  has  been  expressed,  on  the  ground 
of  the  improbability  that  the  legislature  could  have  intended  to 

33  Massachusetts  Rev.  Laws  1902,  c.  interests  in  lands  would  supply  its 
127,   §    3;    Neiv  Hampshire   Pub.   St.    place. 

1901,  c.  137,  §  12;    Vermont  Pub.  St.  so  The  provision   of  the  Delaware 

1906,   §   2582.  statute  (Rev.  Code,  p.  526,  §  7)  that 

34  See  e.  g.,  California  Civ.  Code,  no  action  shall  be  brought  on  "any 
§  1091;  Connecticut  Gen.  St.  1902,  §  contract  or  sale  of  lands,  tenements 
4029;  Burns'  Ann.  St.  Indiana  1901,  or  hereditaments,  or  any  interest  in 
§  6650;  Kentucky  St.  1903,  §  490;  or  concerning  them,"  unless  in  writ- 
North  Dakota  Rev.  Codes  1905.  §  ing,  seems  to  have  been  regarded  as 
4968;  Rhode  Island  Gen.  Laws  1906,  requiring  a  surrender  to  be  in  writ- 
c.  202,  §  2.  ing.     Logan   v.  Barr,  4  Har.    (Del.) 

35  But  in  McKenzie  v.  City  of  Lex-  546. 

ington,  34   Ky.    (4   Dana)    129,  it  is  37  Botting  v.  Martin,  1  Camp.  317; 

decided  that  the  failure  to  re-enact  Mollett    v.    Brayne,    2    Camp.    103; 

the    third    section    of    the    English  Doe  d.  Read  v.  Ridout,  5  Taunt.  519. 

statute  of  frauds  is  evidence  of  an  See  the  discussion  of  these  and  other 

Intention  to  disppn<=e  with  the  form-  cases  in  Browne,  Stat,  of  Frauds,  § 

ality  of  a  writing  in  the  case  of  a  45.     The    same    view    is    apparently 

surrender,  and  there  is  no  suggestion  taken    in    Logan    v.    Barr,    4    Har. 

that   the    srcneral    provisions    of    the  (Del.)   564. 
local    statute    as    to    conveyance    of 


.    jc;9  IN  EXPRESS  TERMS,  1315 

require  greater  formalities  for  the  extinction  of  the  interest  than 
for  its  creation.38  in  New  York  it  has  been  decided  that  the 
statutory  provision  requiring  a  writing  for  the  surrender  of  "any 
estate  or  interest  in  lands  other  than  for  a  term  not  exceeding 
one  year"  does  not  require  a  writing  if  at  the  time  of  the  surren- 
der less  than  a  year  of  the   term  remains   outstanding.^^' 4o 

b.     By  cancellation  of  lease.    It  seems  that,  before  the  Statute 
of  Frauds,  a  cancellation  of  the  lease,  in  pursuance  of  an  agree- 
ment by  the  parties,  would  have  been  sufficient  as  a  surrender, 
this  showing,  as  strongly  as  an  oral  surrender,  the  intention  of 
the  tenant  of  the  particular  estate  to  relinquish  his  interest  to 
the  reversioner,  and  the  intention  of  the  latter  to  accept  the  re- 
linquishment.41     That  the  statute,  however,  renders  the  cancel- 
lation of  the  lease  ineffective  as  a  surrender  is  well  settled,'*^ 
and  the  fact  that  the  lease  is  found  in  the  possession  of  the  lessor 
in  a  cancelled  state  does  not,  it  has  been  decided,  warraiit  any 
inference  that  there  was  a  written  surrender  which  has  been 
lost."     It  is  said  by  Chief  Baron  Gilbert  in  this  regard  that 
"the  intent  of  the  Statute  of  Frauds  was  to  take  away  the  man- 
ner they  formerly  had   of  transferring  interests   to   lands,   by 
signs,   symbols,   and  words  only;  and  therefore,   as   a  livery  of 
seisin  on  a  parol  feoffment  was  a  sign  of  passing  the  freehold 
before  the  statute,  but  is  now  taken  away  by  the  statute,  so  I 
take  it  that  the  cancelling  of  a  lease  was  a  sign  of  a  surrender 
before  the  statute,  but  is  now  taken  away,  unless  there  be  a  writ- 
ing under  the  hand  of  the  party."**     According  to  one  or  two 
of  the  older  authorities,  indeed,  it  seems  that  a  cancellation  of  a 
lease  might  under  some  circumstances  have  the  effect  of  revesting 
the  estate  created  thereby  in  the  lessor,  not  as  being  equivalent  to 
an  oral  surrender,  but  as  destroying  all  evidence  of  the  demise.^' 

ssMcKinney    v.    Reader,    7    Watts    Thomas,  9  Barn.  &  C.  2S8;  Rowan  v. 
(Pa.)  123.     This  view  is  approved  in   Lytle,  11  Wend.   (N.  Y.)   616. 
Greider's  Appeal,  5  Pa.  422,  and  an        43  Doe    d.    Courtail    v.    Thomas,    9 
Indiana  case  is  in  accord  therewith.    Barn.  &  C.  288. 
Ross  V.  Schneider,  30  Ind.  423.  44  Magennis    v.    MacCullogh,    Gilb. 

39,  40  Smith  V.  Df-vlin,  23  N.  Y.  363.    Eq.    Gas.    235. 

41  See  Magennis  v.  MacCullogh,  45  See  Anonymous,  Moore,  35,  pi. 
Gilh.  Eq.  Gas.  235.  116;     Vin.    Abr.,    Fails     (U)  ;     Bac. 

42  Roe  d.  Berkeley  v.  Archbishop  Abr.,  Leases  (J).  By  some  authori- 
of  York,  6  East,  86;  Ward  v.  Lumley,  ties  such  effect  is  to  be  given  to  the 
5  Hurl.  &  N.  87;   Doe  d.  Courtail  v.   cancellation  of  a  lease  or  other  con- 


1316  SURRENDER.  |    189 

Dut  such  a  theory  has  been  entirely  repudiated  in  modern  times, 
it  being  a  positive  rule,  in  almost  every  jurisdiction,  that  the  can- 
cellation of  an  instrument  of  conveyance,  after  its  delivery,  does 
not  revest  the  estate  in  the  maker  thereof.'^^ 

The  question  whether  a  cancellation  of  the  lease  was,  before 
the  Statute  of  Frauds,  equivalent  to  an  oral  surrender,  is  of  in- 
terest in  those  states  in  which  there  is  no  statutory  requirement 
that  a  surrender  be  in  writing.  In  Illinois,  where  such  is  the  case, 
it  was  decided  by  the  intermediate  appellate  court,  quoting  the 
above  language  of  Chief  Baron  Gilbert,  that  a  surrender  may  be 
made  by  cancellation.^'''  But  a  different  view  has  been  taken  in 
the  highest  court  of  the  state,  on  the  ground  that  the  cancellation 
of  a  deed  will  not  destroy  its  eff'ect,  though  it  is  at  the  same  time 
said  that  the  cancellation  of  the  lease  may,  in  connection  with  the 
subsequent  conduct  of  the  parties,  authorize  a  finding  of  a  sur- 
render, as  a  matter  of  fact.^^  In  that  state  then,  it  appears  that, 
while  an  oral  surrender  is  valid,  a  cancellation  is  not,  of  itself, 
proof  of  an  intention  to  surrender,  and  so  equivalent  to  an  oral 
surrender,  but  it  must  be  accompanied  by  other  evidence  of  such 
an  intention,  to  make  it  effective  for  this  purpose. 

c.  Necessity  of  seal.  Since,  at  common  law,  a  surrender  of  a 
present  estate  in  land  did  not  require  any  writing,  and  the  Statute 
of  Frauds  contained  no  requirement  of  a  seal,  it  seems  clear  that, 
in  the  absence  of  a  local  statutory  requirement  to  that  effect,  there 
is  no  necessity  of  a  seal  to  render  such  a  surrender  valid,  and 
this  is  so  even  though  the  lease  itself  be  under  seal,  at  least  if  not 
required  to  be  under  seal.^^    In  the  case,  however,  of  things  lying 

vej'ance  when  the  subjpct  thereof  Is  ferred  by  grant.     Stewart  v.  Aston,  8 

a  thing  which  lies  in  grant,  as  an  in-  Ir.  C.  L.  35.     And  see  Ward  v.  Lum- 

corporeal  hereditament,  but  not  when  ley,  5  Hurl.  &  N.  87. 

It  is  of  a  thing  which  lies  in   liv-  46  See    cases    cited    in    2    Tiffany, 

ery,  the  grant  being  in  the  former  Real  Prop.  p.  934,  and  2  Cyclopedia 

case  regarded  as  the  essential  instru-  Law  &  Proc.  187. 

mentality  of  transfer.     See  Moor  v.  47  Peidler  v.  Fish,  14  111.  App.  (14 

Salter,  3  Bulst.  79;    Miller  v.   Man-  Bradw.)   29. 

waring,  Cro.  Car.  399;   Gilbert,  Evi-  48  Brewer  v.  National  Bldg.  Ass'n, 

dence.    111,    112.     But   this   position  166  111.  221,  46  N.  E.  752,  afg.  41  111. 

has  been  denied.    Bolton  v.  Bishop  App.  223. 

of  Carlisle,  2  H.  Bl.  259.    And  there  is  49  Co.  Litt.  338  a;  Farmer  v.  Rog- 

evldently  no  such  distinction  at  the  ers,  2  Wils.  26;  Peters  v.  Barnes,  16 

present   day,   since  corporeal    things  Ind.  219;  Allen  v.  Jaquish,  21  Wend. 

as    well    as    incorporeal    are    trans-  (N.  Y.)   628.    In  Roe  v.  Conway,  74 


§    IS9  IN   EXPRESS  TERAIS.  1317 

in  grant,  such  as  incorporeal  hereditaments,  or  future  estates,  a 
seal  was  at  common  law  necessary  to  validate  a  surrender  thereof, 
since  no  other  mode  of  transfer  of  such  an  interest  was  recog- 
mzed,5°  and  it  would  seem  that  this  requirement  may  be  regarded 
as  still  existent,  though  an  occasion  for  its  application  would,  in 
this  country  at  least,  rarely  arise. 

d.  Necessity  of  acceptance.  At  common  law,  a  surrender,  it 
was  decided,  is  sufficient  without  any  acceptance  thereof  by  the 
person  to  whom  it  is  made,  the  same  rule  being  adopted  as  regards 
a  surrender  as  was  applied  to  other  conveyances.^^  In  a  number 
of  states,  on  the  other  hand,  the  rule  has  been  declared  that  a  con- 
veyance, except  when  made  to  an  infant  or  other  person  not  sui 
juris,  is  not  valid  until  accepted  by  the  grantee,^ 2  and  this  rule 
would  presumably  apply  in  the  case  of  a  surrender.  Even  in 
jurisdictions  where,  as  in  England,  an  acceptance  is  not  required, 
the  grantee  can  repudiate  the  conveyance  when  it  comes  to  his 
knowledge,  and  since  he  is  ordinarily  the  only  person  interested 
in  defeating  a  conveyance  to  him  by  way  of  surrender,  the  ques- 
tion whether  his  assent  is  necessary  in  the  first  place  is  not  a  very 
practical  one. 

e.  Words  of  surrender,  ^hile  the  words  "surrender,  grant 
and  yield  up"  are  ordinarily  used  in  a  formal  instrument  in- 
tended to  take  effect  as  a  surrender,  no  particular  words  are  nec- 
essary, it  being  sufficient  that  an  intention  to  transfer  the  lease- 
hold interest  to  the  reversioner  clearly  appears.^3     Accordingly, 

N.  Y.  201,  30  Am.  Rep.  298,  however,  contract.     Alschuler    v.    Schiff,    164 

it  is  said  to  be  "a  serious  question  III.  298.  45  N.  E.  424.     Tlie  common- 

■whether  a  lease  for  ten  years  can  be  law  authorities  do  not  thus  view  a 

cancelled  and  surrendered  by  an  in-  surrender  as  a  discharge  of  a  con- 

strument  not  under  seal."   The  stat-  tract,  but,  as  above  stated,  regard  it 

ute  of  that  state  requires  a  seal  in  as    a    reconveyance    of    the    estate 

the  case  of  a  lease  only  when  it  is  of  created   by  the  demise. 

a  freehold  interest,  and  contains  no  so  Co.  Litt.  338  a;   1  Wms.  Saund. 

express  requirement  of  a  seal  on  a  236  a,  note  9. 

surrender.     In    Illinois   it   has   been  ei  Sheppard's     Touchstone     (Pres- 

def*irled  that  the  rule  forbidding  the  ton's  Ed.)   307;  Thompson  v.  Leach, 

modification  of  a  sealed  contract  by  2  Vent.  198. 

parol  does  not  prevent  a  valid  sur-  52  See    decisions    cited    2    Tiffany, 

render    not   under   seal,   though    the  Real  Prop.  §  407,  note. 

lease  was  under  seal,  for  the  reason  ss  Sheppard's      Touchstone,      306; 

that  such  rule  does  not  apply  in  the  Farmer  v.  Rogers,  2  Wils.  26;   Wed- 

case  of  the  absolute  discharge  of  a  dall  v.  Capes,  1  Mees.  &  W.  50;  Ap- 


1318  SURRENDER.  §    igg 

an  instrument  in  form  a  lease  of  the  premises  by  the  tenant  to 
the  landlord  has  been  regarded  as  sufficient  as  a  surrender,^'*  as  has 
what  was  in  terms  an  ' '  agreement ' '  for  the  relinquishment  of  the 
leasehold,  it  being  intended  to  take  effect  as  a  surrender.^^  Ap- 
parently, in  England,  where  a  mortgage  transfers  the  legal  es- 
tate to  the  mortgagee,  a  mortgage  of  the  leasehold  by  the  tenant 
to  his  landlord  would  take  effect  as  a  surrender,^^  but  such  a 
result  could  not  follow  in  any  jurisdiction  where  a  mortgage  does 
not  transfer  the  legal  title.^^ 

A  recital  in  a  second  lease  to  one  already  a  tenant  under  a 
previous  lease,  that  the  previous  lease  has  been  surrendered,  is 
not,  it  has  been  decided,  sufficient  as  an  express  surrender  of  the 
previous  lease,  for  the  reason  that  the  recital  may  be  satisfied  on 
the  theory  that  the  second  lease  operates,  as  hereafter  explained, 
as  a  surrender  of  the  first  by  operation  of  law,  and  it  does  not 
purport  itself  to  be  a  relinquishment  of  the  interest  under  a  prior 
lease.58  In  Iowa  it  appears  to  have  been  considered  that  a  recital 
in  a  receipt  for  rent  that  the  lease  has  been  surrendered  is  valid 
evidence  of  a  surrender,^^  but  it  is  perhaps  questionable  whether 
the  statute  of  that  state  requires  a  surrender  to  be  in  writing 
signed  by  the  maker  thereof.^o 

f.  Transfer  of  possessioii.  In  California  it  has  apparently 
been  decided  that  an  express  surrender  is  not  effective  as  such  if 
the  tenant  making  it  retains  possession  of  the  premises.^i     There 

peal  of   Greider,   5   Pa.   422,  47  Am.  that  state  which  might  be  regarded 

I^ec.  413.  as  bearing  on  the  subject  appears  to 

54Loyd  V.  Langford,  2  Mod.  174;  be  that  excluding  evidence  of  a  con- 
Smith  V.  Mapleback,  1  Term  R.  441;  tract  for  the  creation  or  transfer  of 
Shepard  v.  Spaulding,  45  Mass.  (4  any  interest  in  lands,  except  leases 
Mete.)  416.  for  a  term  not  exceeding  one  year, 

55  Harris  v.  Hancock,  91  N.  Y.  340;  if  not  in  writing  and  signed  by  the 

Allen  V.  Jaquish,  21  Wend.   (N.  Y.)  party  charged    (Ann.  Code.  §  4625). 

628.  This  provision,  however,  seems  to  be 

s6  See     Cottee     v.     Richardson,     7  regarded  as  applying  to  conveyances 

Exch.    143.  as  well  as  contracts  to  convey   (see 

BTSee   Breese   v.    Bange,    2    E.    D.  Hughes    v.    Lindsey,    31    Iowa,    332; 

Smith  (N.  Y.)  474.  Wickham  v.  Henthorn,  91  Iowa.  242, 

R«Roe   d.   Berkeley  v.   Archbishop  59    N.    W.    276),    and    consequently 

of  York,  6  East,  86.  might  be  regarded  as  applying  to  a 

B9  Jenkins   v.    Clyde    Coal    Co.,    82  surrender. 
Iowa.  618.  48  N.  W.  970.  oi  Kower    v.    Gluck.    33    Cal.    401. 

60  The  only  statutory  provision  in  And  see  Coburn  v.  Goodall,  72  Cal. 


^    ^gg  IN   EXPRESS  TERMS.  1319 

is  little,  if  any,  common-law  authority  for  this  view,^^  ^nd  there 
are  authorities  opposed  thereto.^^  It  seems  that  a  conveyance 
by  way  of  surrender,  like  most  other  forms  of  co.nveyance  at  the 
present  time,  should  operate  to  transfer  the  title,  irrespective  of 
the  grantor's  retention  of  possession.  If  the  tenant,  after  execut- 
ing and  delivering  a  deed  of  surrender,  still  occupies  the  premises 
by  permission  of  the  surrenderee  he  is,  it  is  true,  a  tenant  of  the 
latter,  but  his  tenancy  is  not,  it  seems,  under  the  surrendered 
lease,  but  is  under  a  new  demise.  Even  at  common  law  an  estate 
for  life,  which  could  ordinarily  be  transferred  only  by  livery  of 
seisin,  could  be  surrendered  without  livery ,<54  and,  a  fortiori, 
it  would  seem,  a  term  of  years  could  be  surrendered  without  any 
equivalent  formality.  The  English  decision,  before  referred  to, 
that  a  surrender  is  valid  without  any  acceptance  thereof,^^ 
clearly  implies  that  no  transfer  of  possession  is  necessary. 

g.  Surrender  in  future.  It  is  asserted  in  a  modern  English 
case,  without  any  statement  of  the  reasons  for  such  a  view,  that 
a  surrender  cannot  be  made  to  take  effect  in  futuro,^^  the  actual 

498,  19  Pac.  190,  1  Am.  St.  Rep.  75.  seised  of  the  possession,  for  one  can- 
See,  also  Porgotson  v.  Becker,  39  not  properly  surrender  but  where 
Misc.  816,  81  N.  Y.  Supp.  319,  ap-  he  who  surrenders  gives  possession  to 
parently  to  the  same  effect.  him   who   takes   by  the   surrender." 

62  In  Vin.  Abr.,  Surrender  (G)  35,  Whatever  may  be  the  meaning  of 
it  is  said  that  "it  is  not  properly  a  these  latter  statements,  they  evi- 
surrender,  but  where  he  who  sur-  dently  do  not  support  the  general 
renders  gives  po-^session  to  him  statement  made  by  Viner. 
who  takes  by  surrender;"  citing  Bro.  cs  Sheppard's  Touchstone,  at  p. 
Abr.,  Surrender,  pi.  13,  which  in  307,  says:  "The  actual  entry  of  the 
turn  cites  Y.  B.  22  Hen.  6,  51.  The  surrenderee  into  the  land  is  not 
passage  in  the  year  book  merely  says  necessary."  To  the  same  effect  is 
that  it  was  agreed  by  the  judges,  Bro.  Abr.,  Surrender,  pi.  50;  Vin. 
with  one  exception,  that  "If  I  enfeoff  Abr.,  Trespass  (S)  9.  And  Com- 
two  persons  to  hold  to  them  and  to  pare  Lord  Hale's  note  to  Co.  Litt.  57 
the  heirs  of  one,  and  he  who  has  the  that  "if  tenant  for  years  surrenders 
freehold  surrenders  to  his  cotenant,  and  still  continues  possession,  he  is 
this  surrender  is  void  by  reason  of  tenart  at  sufferance  or  disseisor  at 
the  joint  possession;"  while  Brooke    election." 

says  that  "if  I  enfeoff  two,  to  have  to  64  Co.  Litt.  50  a;  2  Blackst.  Comm. 
them  and  the  heirs  of  one,  he  who  326.  See  McLaughlin  v.  Kennedy, 
has  the  freehold  cannot  surrender  49  N.  J.  I.aw,  519,  10  Atl.  391. 
to  the  other  by  reason  of  the  joint'  65  Thompson  v.  Leach,  2  Vent.  198. 
possession,  for  the  freehold  cannot  66  Doe  d.  Murrell  v.  Milward,  3 
merge  in  the  reversion  by  reason  Mees.  &  W.  328,  per  Parke,  B. 
that  he  who  has  the  fee  is  jointly 


1320  SURRENDER.  ^    Igg 

decision  being,  however,  merely  that  a  notice  by  the  lessee  of  an 
intejition  to  give  up  possession  at  a  certain  date,  though  assented 
to  by  the  lessor,  did  not  constitute  a  surrender.  To  apparently 
the  same  efiiect  as  the  above  dictum  is  that  of  Coke  that  "he  who 
hath  a  lease  for  twenty  years  cannot  surrender  the  last  ten  years 
by  any  express  surrender,  saving  to  him  the  first  ten  years.  "^" 
On  the  other  hand,  it  is  asserted  hj  writers  of  authority  that  a 
surrender  may  be  made  subject  to  a  condition  precedent,^^  and 
a  surrender  subject  to  such  a  conditio  a  is  necessarily,  so  long 
as  the  condition  is  unsatisfied,  one  to  take  effect  in  futuro.  In 
New  York  it  has  been  decided  that  a  surrender  may  be  made  to 
take  effect  in  futuro,  and  this  effect  was  given  to  a  mere  agree- 
ment by  the  lessee  that,  if  he  failed  to  make  certain  improve- 
ments by  the  date  named,  he  would  "then  relinquish  the  con- 
tract, "^^  language  which  might,  perhaps,  as  well  have  been 
construed  as  a  mere  agreement  to  make  a  surrender  in  futuro."^^ 
In  New  Jersey,  also,  it  has  been  decided  that  a  surrender  may  be 
made  to  take  effect  in  futuro.'^''- 

The  view  that  a  surrender  cannot  be  made  to  take  place 
in  futuro  is  presumably  based  on  the  theory  that  a  surrender, 
in  its  very  nature,  implies  a  present  yielding  up  of  the  particular 
estate.  In  any  case,  however,  if  the  instrument  is  in  terms  a 
transfer  of  the  particular  estate  to  the  reversioner,  to  take  effect 
in  possession  from  and  after  a  time  or  event  named,  it  will,  it 
seems,  so  operate,  and,  upon  the  arrival  of  such  time  or  the 
happening  of  the  event  named,  the  particular  estate  will  become 
vested  in  the  reversioner,  and  will  be  merged.^^     There  is  no 

67  Ives'  Case,  5  Coke,  11  a.  Kenzie  v.  City  of  Lexington,  34  Ky. 

68  The     statement     in     Sheppard's    (4  Dana)  129. 

Touchstone,    307,    repeated    by    Mr.  7i  Mundy  v.  Warner,  61  N.  J.  Law, 

Preston  in  his   annotations  thereto,  395,  39  Atl.  697.     The  syllabus  says 

that  a  surrender  may  be  on  a  con-  that    the    agreement    was    to    "sur 

dition    precedent   or    subsequent,    is  render  possession"  at  a  certain  date, 

quoted  with  approval  in  Doe  d.  Bid-  but   the   court    speaks    of   it   as    an 

dulph  V.  Poole,  11  Q.  B.  713.  agreement  "to  surrender  the  term." 

69  Allen  V.  Jaquish,  21  Wend.  (N.  An  agreement  to  surrpnder  posses- 
Y.)  628.  sion  in  the  future  has,  in  England, 

70  An  agreement  by  the  lessor  to  apparently,  been  regarded  as  not 
accept  the  lessee's  proposition  to  effective  as  a  surrender.  Weddall  v. 
surrender  provided  he  would  pay  the  Capes,  1  Mees.  &  W.  50. 

rent  due  was  apparently  regarded  72  in  Harrison  v.  Middleton,  11 
as  not  constituting  a  surrender.     Mc-    Grat.  (Va.)  527,  it  was  held  that  an 


X    190  BY  OPERATION  OF  LAW.  1321 

question  that  a  surrender  may  be  made  subject  to  a  condition 
subsequent,  the  effect  of  the  condition  being  to  revest  the  lease- 
hold interest  in  the  tenant  upon  the  happening  of  the  contingency 
named. '^^ 

h.  Surrender  for  purpose  of  new  lease.  It  has  been  said,  in  an 
English  case,  that  where  a  surrender  in  fact  is  so  expressed  as 
to  show  that  the  intention  of  the  parties  is  to  make  the  sur- 
render only  in  consideration  of  the  grant  of  a  new  lease  to  the 
same  lessee,  the  sound  construction  of  the  instrument,  in  order 
to  effectuate  this  intention,  would  make  the  surrender  conditioned 
to  be  void  in  case  the  new  lease  is  for  any  reason  voidJ*  The 
rule,  however,  appears  to  be  different  if  such  intention  is  not  ex- 
pressed in  the  instrument  of  surrender.^^  In  a  case  in  New 
York  it  was  decided  that,  after  an  express  surrender,  the  fact 
that  a  new  lease,  given  in  place  of  the  former  lease,  was 
void,  did  not  render  the  surrender  nugatory,  the  new  lease 
not  being  the  only  consideration  for  the  surrender  of  the  former 
lease;  and  it  was  at  the  same  time  said  that  the  former  lease 
could  be  reinstated  only  by  a  suit  in  equity  on  the  ground 
of  failure  of  consideration,  fraud,  or  mistake.'^  ^ 

§  190.    Surrender  by  operation  of  law. 

a.  General  nature.  The  provision  of  the  English  Statute  of 
Frauds,  requiring  a  surrender  to  be  in  writing,  excepts  from  its 
scope  surrenders  "by  act  and  operation  of  law."  A  like  ex- 
ception is  found  in  most  of  the  statutes  in  this  country  bearing 
on  the  subject.'^'^     But  even  in  states  where  there  is  no  express 

agreement  under  seal  by  which  the  interests.     See    3    Preston,    Convey- 

tenant    agreed    to    "surrender"    the  ancing,  55,  493. 

premises  at  a  certain  date  rendered  73  Co.      Litt.      218b;       Sheppard's 
him  a  mere  tenant  at  will  or  at  suf-  Touchstone,   307. 
ferance    after    that    date.     That    a  t4  Doe  d.  Egremont  v.  Courtenay, 
future  interest  may  be  created  in  a  11  Q.  B.  702.     See,  also,  Doe  d.  Bid- 
term   of  years,   see   Gray,   Perpetui-  dulph  v.  Poole,  11  Q.  B.  713. 
ties   (2d  Ed.)   §  809  et  seq.;   2  Pres-  75  Doe    d.    Murray    v.    Bridges,    1 
ton,  Abstracts  of  Title,  6,  144.     Mer-  Barn.  &  Adol.  847. 
ger  could  not  take  place  until  such  t6  Clarke  v.  Barnes,  76  N.  Y.  301, 
interest  becomes  a  vested  estate  by  32  Am.  Rep.  306. 
the  happening  of  the  contingency  or  77  See  the  statutes  above  referred 
arrival  of  the  time  named,  the  law  of  to  of  Arkansas,  California,  Florida, 
merger    not    applying    to    executory  Massachusetts,  Michigan,  Minnesota, 


1322  SURRENDER.  §    190 

provision  in  that  regard,  the  doctrine  of  surrender  by  operation 
of  law  is  recognized, ''■^  as  it  is  in  states  where  there  is  apparently 
no  restriction  imposed  on  the  making  of  an  oral  surrenderj^ 

The  courts  have  considered  that  there  is  a  surrender  by  "act 
and  operation  of  law"  when  transactions  have  taken  place 
between  the  reversioner  and  the  tenant  of  the  particular  estate, 
the  landlord  and  tenant,  which  create  a  condition  of  facts  in- 
consistent with  the  continued  operation  of  the  lease.  The  effect 
thus  given  to  the  transactions  of  the  parties  has  been  stated  to 
be  based  on  the  theory  of  estoppel,8o  jj^^  q]i  ^y^q  elements  of  aai 
estoppel  are  certainly  not  present  in  every  case  of  such  a  sur- 
render. Occasionally  the  theory  seems  to  be  asserted  that  the 
acts  of  the  parties  thus  operate  as  a  surrender  because  they  show 
an  agreement  that  the  leasehold  interest  shall  be  surrendered,^^ 
but  a  surrender  cannot  properly  be  regarded  as  taking  place  by 
operation  of  law  when  it  takes  place  by  agreement  of  the  par- 
ties, even  though  such  agreement  is  manifested  by  acts  and 
not  by  words  ;82  and  even  in  jurisdictions  where,  owing  to  the 
absence  of  a  statute  requiring  a  surrender  to  be  in  writing, 
the  mere  acts  of  the  parties  might  effect  a  surrender  as  showing 
an  agreement  to  that  effect,  this  would  be  properly  termed  an 
express  surrender  rather  than  one  by  operation  of  law.  It  is 
more  satisfactory,  perhaps,  to  regard  the  various  decisions  on  the 
subject  as  involving  an  application  of  the  principle  of  estoppel, 

Missouri,    Montana,    Nebraska,    Ne-  National  Union  Bldg.  Ass'n,  166  111. 

vada,  New  Hampshire,  New  Jersey,  221,  46  N.  E.  752;   Meelier  v.  Spals- 

New   Yorlt,   Pennsylvania,   Vermont,  bury,  66  N.  J.  Law,  60,  48  Atl.  1026; 

Utah,  Wisconsin.  Bedford  v.  Terhune,  30  N.  Y.  453,  86 

78  See  Otis  v.  McMillan,  70  Ala.  46;  Am.  Dec.  394;  Tobener  v.  Miller,  68 
Woodward  v.  Lindley,  43  Ind.  333;  Mo.  App.  569;  Hart  v.  Pratt,'  19 
Withers    v.    Larrabee,   48    Me.    570;  Wash.  560,  53  Pac.  711. 

Brown    v.    Cairns,    63    Kan.    584,    66  82  So  in  Felker  v.  Richardson,  67 

Pac.  639   (semble).  N.  H.  509,  32  Atl.  830,  it  is  said,  per 

79  See  Ledsinger  v.  Burke,  113  Ga.  Carpenter,  J.,  "A  surrender  by 
74,  38  S.  E.  313;  Brown  v.  Cairns,  107  agreement,  whether  express  or  im- 
lowa,  727,  77  N.  W.  478;  Ladd  v.  plied,  is  the  act,  not  of  the  law,  but 
Smith,  6  Or.  316:  Edwards  v.  Hale,  of  the  parties.  To  constitute  a  sur- 
37  W.  Va.  193,  16  S.  E.  487.  render    by   operation    of   law,    overt 

so  See  Lyon  v.  Reed,  13  Mees.  &  W.  acts    of    both    parties     inconsistent 

285.  with    the   continuance   of   the   term 

SI  See  e.  g.,  Talbot  t.  Whipple,  96  are  essential." 
Mass.    (14    Allen)    177;    Brewer    v. 


BY  OPERATION  OF  LAW.  132a 

8    I'JU 

somewhat  modified  to  snit  what  the  courts  may  have  considered 
the  exigencies  of  the  case.  The  transactions  which  have  been 
regard  d  as  giving  a  rise  to  a  surrender  by  act  and  operation 
of  law  are  of  various  distinct  classes,  and  they  will  be  considered 

"r^Actptance  of  new  interest-(l)     Acceptance  of  lease- 
(a)'Th3  general  doctrine.     If  the  tenant  accepts  from  the  land- 
lord a  new  lease,  to  take  effect  during  the  continuance  of  the  in^ 
terest  created  by  the  previous  lease,  this  is  regarded  as  effecting  a 
surrender  bv  operation  of  law  on  the  theory  that,  by  the  accept- 
ance of  the'new  lease,  the  tenant  becomes  a  party  to  an  act  the 
validity  of  which  he  is  estopped  to  dispute,  but  which  cannot  be 
valid  if  the  estate  created  by  the  first  lease  continues  to  exist. 
This  view  of  the  effVct  of  the  acceptance  of  a  second  lease  was 
fully  recognized  before  the  Statute  of  Frauds,«^  and  therefore 
cannot  be  regarded,  as  may  perhaps  other  instances  of  surrender 
by  operation  of  law,  in  the  light  of  an  attempt  to  carry  out  the 
agreement  of .  the  parties,  though  not  expressed  in  writing,  and 
thus  to  avoid  the  operation  of  the  statute. 

In  the  case  of  a  so-called  " lease  in  fee,"  which  is  properly 
a  conveyance  in  fee,  reserving  a  rent,  there  can  obviously  be  no 
surrender,  since  there  is  no  reversion,  but  the  subsequent  takmg 
of  a  new  lease  by  the  grantee  has  been  regarded  as  a  release  of  all 
rio-hts  under  the  former  conveyancers 

\n  order  that  the  new  lease  result  in  a  surrender,  it  need  not  be 
for  as  great  a  term  as  the  first  lease,8«  since  it  is  the  tenant's 
acceptance  of  a  new,  inconsistent  interest  which  is  the  controlling 
consideration.^^     And  for  the  same  reason,   though  the  second 

83  T  von  Y  Reed,  13  Mees.  &  W.  Steward,  Plowd.  107  b;  Ives  v.  Sams, 
285  o"  V  ScMillan,  70  Ala.  46;  Cro.  Eliz.  522;  Com.  Dig..  Surrender 
Welcome  v.  Hess,  90  Cal.  507,  27  Pac.    (11).  v.  19 

It  Z...   V.    DOW,    99    Mass.    18;        s.  Springsteln  .  Scbermerhorn.  12 

^  J-  ,r   rifivic!    17  Neb    228,  22  N.    Johns.   (N.  Y.)  357. 

T^  Lr  n  v.'wH.bt.  65  Neb.        se  We.  Case,  5  Co.e,  11  a    Dodd  v. 

rI;  91  N  W  580;  Schieffelin  v.  Car-  Acklom.  6  Man.  &  G.  672,  679,  En- 
.      ^'^  Wend     (N    Y  )    400;    Coe  yeart  v.  Davis.  17  Neb.  228,  22  N.  W. 

'Tobbv Mn   Y^41,  2     Am.  Rep.    449;    Wade  v.   South  Penn.   Oil   Co.. 

V.  Hobby,  72  N.  ^-  1*^'  3g0    33  g.  e.  169. 

120;  Edwards  v.  Hale,  3.  W.  Va.  193.    45  W  ,    ^  ^^^^   ^^  ^_  ^^^^^_ 

1(1^13487  i>^'j 

84  Perkins.      §      617;      Sheppard's    Ins  v.  Martin,  Cro.  Eliz.  605. 
Touchstone.'    301;      Fulmerston     v. 


1324  SURRENDER.  §    190 

lease  is  not  to  begin  till  some  time  named  in  the  future,  there  is 
an  immediate  sui-render  of  the  interest  under  the  first  lease. 
But  a  new  lease  which  is  not  to  take  effect  until  after  the  end 
of  the  existing  term  would  not  effect  a  surrender  of  such  term, 
since  there  is  no  inconsistency  in  the  interests  created  by  the 
two  leases.s^  If  it  is  uncertain  whether  the  interest  created  by 
the  new  lease  will  begin  before  the  end  of  the  existing  term,  as 
when  it  is  subject  to  a  condition  precedent,  which  may  or  may  not 
occur  before  that  time,  the  second  lease  will  not,  it  seems,  effect 
a  surrender  until  the  eo-ntingency  actually  happens,  and  conse- 
quently the  surrender  will  operate  only  on  the  residue  of  the  term 
then  outstanding.s9 

It  has  been  decided  in  this  country  that  a  surrender  will  result 
from  the  making  of  a  new  oral  lease,  provided  it  is  valid  as  such, 
although  the  original  lease  was  in  writing  or  even  under  seal.'^'^ 
This  was  the  rule  in  England  before  the  Statute  of  Frauds,^^ 
and,  in  spite  of  the  dictum  that  "it  would  be  most  dangerous  to 
allow  a  term  created  by  an  express  demise  ta  be  thus  got  rid  of 
by  parol  evidence,  "^2  there  are  modern  eases  in  that  country 
to  the  same  effect,  though  without  any  direct  consideration  of  the 
question.93  Thus,  it  has  there  been  decided  that  where  the  tenant 
agreed  with  the  landlord  that  the  latter  should  give  a  new  lease 
to  him  and  to  another,  and  they  entered  pending  the  execution 
of  the  new  lease,  they  became  tenants  at  will  or  from  year  to  year, 
with  the  result  that  the  term  previously  existing  in  the  single 

88Bac.  Abr.,  Leases  (S)  2,  1;  lease.  There  the  court,  however, 
Tracy  v.  Albany  Exch.  Co.,  7  N.  Y,  discusses  the  question  as  one  of  the 
(3  Seld.)  472.  modification  of  a  contract  by  a  sub- 
so  Bac.  Abr.,  Leases  (S)  2,  1;  An-  sequent  agreement,  and  there  is  no 
onyraous,  4  Leon.  30.  reference  to  the  doctrine  of  an  im- 
80  Schiefflin  v.  Carpenter,  15  Wend,  plied  surrender.  That  a  new  oral 
(N.  Y.)  400;  Coe  v.  Hobby,  72  N.  Y.  lease  is  insufficient  in  such  case,  sea 
141,  28  Am.  Rep.  120.  See  Evans  v.  Leavitt  v.  Stern,  1.59  111.  526,  42  N.  E. 
McKanna,  89  Iowa,  362,  56  N.  W.  527,  869,  ante,  note  5  a. 
48  Am.  St.  Rep.  390;  Nachbour  v.  9i  Com.  Dig.,  Surrender  (T  1.) 
Wiener,  34  111.  App.  237.  In  Andre  92  per  Pollock,  C.  B.,  in  Foquet  v. 
v.  Graebner,  126  Mich.  116,  85  N.  W.  Moor,  7  Exch.  870.  And  to  the  same 
464,  an  oral  agreement  between  the  effect,  see  Doe  d.  Huddleston  v.  John- 
lessor  and  lessee  for  a  term  of  years  son,  McClel.  &  Y.  141. 
that  the  holding  should  be  from  03  Fenner  v.  Blake  [1900]  1  Q.  B. 
month  to  month  was  given  effect  as  426;  Peter  v.  Kendal,  6  Barn.  &  C. 
terminating  the  rights  under  the  old  703. 


t   lQ^)  BY  OPERATION  OF  LAW.  1325 

tenant  was  surrendered.^^  The  view  that  a  surrender  may  be 
thus  effected  by  a  new  verbal  lease  is  no  doubt  contrary  to  the 
spirit  of  the  Statute  of  Frauds,  but  it  seems  to  be  a  logical  ap- 
plication of  the  general  rule  as  to  a  surrender  resulting  from  a 
new  lease,  and  it  is  in  accordance  with  the  apparent  tendency 
of  the  courts  to  enlarge  the  scope  of  the  exception  in  the  statute 
of  surrender  by  operation  of  law. 

The  operation  of  a  second  lease  as  effecting  a  surrender  of  the 
term  previously  existing  is  not  prevented  by  the  fact  that  it  is 
subject  to  a  condition  subsequent,  which  may  cause  a  forfeiture 
of  tlie  interest  created  thereby,  and  if  the  condition  is  enforced 
both  leases  will  thereafter  be  inoperative.^^ 

If  the  second  lease  covers  but  a  part  of  the  land  covered  by  the 
first  lease,  there  is  a  surrender  as  to  such  part  and  no  more.^^ 

If  one  only  of  two  or  more  joint  lessees  accepts  a  second  lease, 
there  is  a  surrender  of  his  undivided  interest,  and  not  of  the 
interests  of  the  others,  unless  he  was  authorized  to  act  for  them.^^ 
(b)  Intention  of  parties.  Since  a  surrender  by  reason  of  the 
making  and  acceptance  of  a  new  lease  takes  place  by  operation 
of  law,  and  not  by  the  act  of  the  parties,  it  would  seem  logically 
to  follow  that  the  intention  of  the  parties  is  immaterial,  and  there 
are  occasional  dicta  to  that  effect.^s  The  view  has,  however, 
been  asserted  that  the  new  leasfe  does  not  result  in  a  surrender 
when  this  is  contrary  to  the  apparent  intention  of  the  parties.^^ 
Thus,  a  contrary  intention  was  inferred  and  given  effect  when  to 
hold  otherwise  would  have  deprived  the  tenant  of  the  benefit  of 
the  covenant  in  the  prior  lease  for  compensation  for  improvements 
erected  by  him.!*^*^ 

94  Hamerton  v.  Stead,  3  Barn.  &  C.  Stafford,  28  U.  C.  C.  P.  229.     And  see 

4Y8.  Seldon  v.  Buchannan,  24  Ont.  349. 

05  Co.      Litt.      218b;       Sheppard's  s^  Sheppard's   Touchstone,   302. 
Touchstone,   301;    Bac.   Abr.,   Leases  as  Lyon   v.   Reed,   13   Mees.    &  W. 
(S  2,  1);   Doe  d.  Biddulph  v.  Poole,  285;  Brown  v.  Cairns,  107  Iowa,  727, 
11  q'.  B.'lS.  77  N.  W.  478;   Enyeart  v.  Davis,  17 

06  Carnarvon  v.  Villebois,  13  Mecs.  Neb.  228,  22  N.  W.  449. 

&  W.  342;  Morrison  v.  Chadwick,  7  so  Smith  v.  Kerr,  108  N.  Y.  31,  15 
C.  B.  266*;  Bac.  Abr.,  Leases  (S3).  N.  E.  70,  2  Am.  St.  Rep.  362;  Wit- 
But  in  Banker  v.  Braker,  9  Abb.  N.  mark  v.  New  York  El.  R.  Co.,  76 
C.  (N.  Y.)  411,  such  a  new  lease  of  Hun,  302,  27  N.  Y.  Supp.  777;  Flagg 
part  was  regarded  as  rendering  the  v.  Dow,  99  Mass.  18  (semble); 
former  lease  inoperative.  And  such  Thomas  v.  Zumbalen,  43  Mo.  471. 
effect  was,  under  the  circumstances,  looVan  Rensselaer's  Heirs  v.  Pen- 
given  to  a' lease  of  part  in  Ramsay  v.  niman,   6  Wend.    (N.  Y.)    568.     But 


1326  SURRENDER.  §    190 

In  England,  while  the  courts  have  not  gone  to  the  same  extent 
as  the  decisions  last  referred  to  in  refusing  to  give  the  effect  of  a 
surrender  to  the  making  and  acceptance  of  a  new  lease  when  a  sur- 
render was  apparently  not  intended,  they  have  gone  so  far  as  to 
hold  that  in  order  that  the  transaction  may  thus  operate,  the 
lease  must  be  good  and  sufficient  to  pass  an  interest  according  to 
the  intention  of  the  parties. ^'^i  Thus,  it  has  been  decided  that  if 
the  lease  is  made  by  a  tenant  for  life,  undertaking  to  act  under  a 
power,  and  the  lease  is  not  a  valid  execution  of  the  power,  a  sur- 
render does  not  result,  although  the  lease  was  valid  until  the  death 
of  the  tenant  for  life.i"^^  Jq  New  York,  likewise,  it  has  been  de- 
cided that  if  the  second  lease  is  intended  to  create  a  term,  and, 
because  not  executed  as  required  by  the  Statute  of  Frauds,  it  cre- 
ates merely  a  tenancy  from  year  to  year,  no  surrender  results,^ *^3 
and  a  like  decision  was  made  where  there  was  an  outstanding 
dower  interest  in  one  who  did  not  join  in  the  second  lease. ^''^ 
Where  the  second  lease  was  effected  by  fraud  on  the  part  of  the 
lessor,  it  was  held  in  that  state  that,  in  an  action  for  rent,  the  lessee 
was  entitled  to  equitable  relief  in  the  shape  of  the  cancellation  of 
the  second  lease  and  the  re-establishment  of  the  fir.st  loase.ios  if 
the  second  lease  is  void  ah  initio,  its  making  and  acceptance  cannot 
result  in  a  surrender  of  the  first  lease.io^ 

(c)  What  constitutes  new  lease.  The  question  of  what  consti- 
tutes a  new  lease  or  demise  for  this  purpose  is  one  as  to  which  the 
decisions  are  not  entirely  clear.  A  mere  change  in  the  amount 
of  the  rent  by  agreement  is  not  the  making  of  a  new  lease, i^t  and 

Jungerman  v.  Bovee,  19  Cal.  354,  is  The  prior  lease  had  been  "canceled," 

apparently  contra.  but  since  cancellation  does  not  effect 

101  Lloyde  v.  Gregory,  1  Wm.  a  surrender  in  view  of  the  statutory 
Jones,  405;  Davison  v.  Stanley,  4  requirement  of  a  writing,  this  would 
Burrow,   2210.  seem  to  have  been  immaterial. 

102  Doe  d.  Biddulph  v.  Poole,  11  Q.  ion  Roe  d.  Berkeley  v.  Archbishop 
B.  713;  Doe  d.  George  v.  Courtenay,  of  York,  6  East,  86;  Easton  v.  Penny, 
11  Q.  B.  702,  per  Coleridge,  J.  67  Law  T.  (N.  S.)  290. 

103  Coe  v.  Hobby,  72  N.  Y.  141,  28  io7  Donellan  v.  Read,  3  Barn.  & 
Am.  Rep.  120;  Soymour  v.  Hughes,  Adol.  899;  Doe  d.  Monck  v.  Geikie,  5 
55  Misc.  248,  105  N.  Y.  Supp.  249.  Q.   B.  841;    Crowley  v.   Vitty,  Exch. 

104  Chamberlain  v.  Dunlop,  12C  N.  319;  Pronguey  v.  Gurney,  37  U.  C. 
Y.  4.5,  26  N.  E.  C36,  22  Am.  St.  Rep.  Q.  B.  347;  Oldewurtel  v.  Wiesenfeld, 
807.  97   Md.   165,   54  Atl.  969,  99  Am.   St. 

10.1  Powell  V.  F.  C.  Lynde  Co.,  49  Rep.  427  (semble).  In  Bowman  v. 
App.    Div.    286,    64   N  Y.    Supp.   153.    Wright,  65  Neb.  661,  91  N.  W.   580, 


»    ^gQ  BY  OPERATION  OF  LAW.  1327 

consequently  this  does  not  of  itself  effect  a  surrender,io8  though 
it  may  be  evidence,  with  other  facts,  to  show  a  new  demise  and 
consequent  surrender.^o^     And  it  has  been  decided  that  a  relm- 
quishment,  by  the  tenant  to  the  landlord,  of  the  possession  of  part 
of  the  premises,  does  not  effect  a  surrender  of  the  leasehold  m  the 
whole  as  involving  a  new  demise,   whether   or  not  this  is  ac- 
companied by  a  reduction  in  the  amount  of  rent.no    An  agreement 
for  a  new  lease  to  be  made  in  the  future  does  not  have  the  effect 
of  a  new  lease  in  effecting  a  surrender  of  the  existing  tenancy .^ii 
And  the  same   view  has   been   taken  of   an   agreement  by  the 
landlord  not  to  disturb  the  tenant  in  his  possession  until  a  date 
subsequent  to  the  end  of  the  existing  term,  on  the  ground,  it  is 
said,  that  this  was  intended  as  an  agreement  merely,  and  not  as  a 
demise.1^2     The  same  might  be  said,  it  would  seem,  of  an  agree- 
ment between  the  landlord  and  tenant  that  the  former  should 
quit  at  a  certain  date  prior  to  the  end  of  the  term  named  in  the 
original  lease,  but  this  has  been  decided,  in  the  same  jurisdiction, 
to  involve  a  new  demise,  effecting  a  surrender  of  the  term  pre- 
viously existing.!  13     In  this  country  a  new   agreement,  to  the 

92  N.  W.   580,  a  different  view  ap-    serted  termination  of  tlie  old  lease 
pears  to  be  taken.  was  based,   not  on   the  theory  that 

108  Coe  V.  Hobby,  72  N.  Y.  141,  28  the  making  of  the  stipulation  as  to 
Am.  St.  Rep.  120;  Smith  v.  Kerr,  108  repairs  was  equivalent  to  the  mak- 
N  Y.  31,  15  N.  E.  70,  2  Am.  St.  Rep.  ing  and  acceptance  of  a  new  lease, 
362-  Hurtt  v.  Woodland,  24  Md.  393;  but  rather  on  the  theory  that  the 
Taylor  v.  Winters,  6  Phila.  (Pa.)  notice  to  quit  and  the  lessee's  ac- 
126;  Edwards  v.  Hale,  37  W.  Va.  193,  quiescence  therein  effected  a  termi- 
16  S.  B.  487;  Donnellan  v.  Read,  3  nation  of  the  lease.  But  this  would 
Barn.  &  Adol.  899;  Crowley  v.  Vitty,  seem  to  involve  a  violation  of  the 
7  Exch.  319;  Clarke  v.  Moore,  1  statute  as  to  oral  surrenders.  The 
Jones  &  L.  723.  term  "surrender"  is  not  used  in  the 

109  Jones  V.  Bridgman,  39  Law  T.    opinion. 

(N  S.)  500;  Ex  parte  Vitale,  47  Law        no  Holme  v.  Brunskill,  3  Q.  B.  Div. 

T.  (N.  S.)480.     In  Conkling  v.  Tuttle,    495. 

52  Mich.  630,  18  N.  W.  391,  where  the       i"  John    v.    .Jenkins,    1    Cromp.   & 

lessor   before   the   end    of    the   term    M.  227;   Sheppard's  Touchstone.  301. 

notified  the  lesseo  to  quit,  which  the        n^  Si-^ebotham  v.  Holland  [1895]  I 

latter  was  about  to  do,  but  remained   Q.  B.  378. 

in   possession  on  the  lessor's  prom-        ns  Fenner  v.  Blake  [inOO]  1  Q.  B. 

ise   to   make   repairs,  there  was,   it   426.     This    case   in   effect    overrules 

was    decided,    a    new   lease    with    a    Doe  d.  Huddleston  v.  Johnston,  Mc- 

valid    stipulation    for    repairs.      It  Cle^.   &  Y.  141,  though  it  makes  no 

rather  appears,  however,  that  the  as-    reference  thereto.. 


^328  SURRENDER.  §    190 

effect  that  the  landlord  should  have  the  option  of  terminating 
the  lease  by  notice,  has  been  regarded  as  not  involving  the  making 
of  a  new  demise  effecting  a  surrender/^^  but  it  may  be  questioned 
whether  such  a  subsequent  modification  of  the  possible  length 
of  the  term  can  be  given  effect  otherwise  than  as  a  new  demise. 

(d)  New  leaze  to  assignee  of  leasehold.  The  doctrine  that  the 
acceptance  by  the  tenant  of  a  new  lease  from  the  landlord  effects 
a  surrender  of  the  original  leasehold  estate  finds  an  occasional 
application  in  connection  with  the  question  whether  a  lessee  who 
has  assigned  is  still  liable  on  his  covenants.  If  the  original  ten- 
ancy is  in  full  force,  the  lessee  remains  liable  on  the  covenants 
entered  into  by  him  in  connection  therewith,  such  as  that  for 
rent,ii^^  while,  if  the  assignee  can  be  regarded  as  receiving  from 
the  landlord  a  new  lease,  a  surrender  occurs,  a.nd  the  lessee  is  no 
longer  liable  on  his  covenants.  The  mere  fact  that  the  landlord, 
after  the  making  of  the  assignment,  in  some  way  recognizes  the 
assignee  as  holding,  not  under  the  old  tenancy,  but  under  a  new 
one,  may  be  asserted  by  the  tenant  as  the  making  of  a  new  lease, 
so  as  to  effect  the  surrender.  It  is  sometimes  said  that  the  lessee 
i .  relieved  from  liability  under  his  covenants  if  the  landlord  ac- 
cepts the  assignee  ' '  as  his  tenant, ' '  but  this  is  incorrect.  The  land- 
lord almost  invariably  accepts  the  assignee  as  his  tenant,  and 
yet  the  continuing  liability  of  the  lessee  is  generally  recognized. 
The  landlord  must,  in  order  to  thus  relieve  the  lessee  from  liabil- 
ity, not  only  accept  the  assignee  as  his  tenant,  but  must  also,  tacit- 
ly or  expressly,  accept  him  as  a  tenant  holding  under  a  new  demise, 
that  is,  he  must  in  eft'ect  make  a  new  demise  to  him. 

The  cases  are  generally  to  the  effect  that  the  mere  acceptance 
by  the  landlord  of  the  rent  from  the  assignee  does  not  involve 
a  new  demise,  so  as  to  effect  a  surrender,!^^''  and  it  is  difficult 

114  Coe  v.  Hobby,  72  N.  Y.  141,  28  983;   Harris  v.  Heackman,  62  Iowa, 

Am.     Rep.     120.     See     Seymour     v.  411,  17  N.  W.  !592;    Grommes  v.  St. 

Hughes,  55  Misc.  248,  105  N.  Y.  Supp.  Paul  Trust  Co.,  147  III.  634,  35  N.  E. 

249,  to  the  effect  that  ordinarily  a  820,  7  Am.  St.  Rep.  248;  Bradley  v. 

mere  modification  of  the  terms  of  the  Walker,    93    111.    App.    609;     Detroit 

lease  does  not  involve  a  surrender.  Pharmacal  Co.  v.  Burt,  124  Mich.  220, 

114R  See  ante,  §  157  a  (2).  82   N.  W.   893;    Brewer  v.   Dyer,   61 

114b  Copeland  v.  "Watts,  1  Starkie,  Mass.  (7  Cush.)  337;  Jones  v.  Barnes, 

95;  Bonetti  v.  Treat,  91  Cal.  233,  27  45  Mo.  App.  590;  Edwards  v.  Spald- 

Pac.  612,  13  L.  R.  A.  418:   Cnesta  v.  inc;,  20  Mont.  54;    Rees  v.  Lowy,  57 

Goldsmith,  1  Ga.  App.  48,  57  S.  B.  Minn.  381,  59  N,  W.  310;   Bouscaren 


§  190  BY  OPERATION  OF  LAW.  1329 

to  see  how  any  other  view  could  obtain.  The  assignee  is  boiand 
to  pay  the  rent,  and  the  acceptance  from  him  of  such  payment 
involves  at  most  merely  the  recognition  of  such  liability  already 
existing.  To  construe  such  action  on  the  part  of  the  landlord  as 
indicating  an  intention  on  his  part  to  create  a  new  tenancy,  ex- 
actly similar  to  the  former  tenancy,  without  any  possible  object 
in  so  doing,  seems  wholly  unwarrantable.  As  a  matter  of  fact, 
a  landlord  accepts  payment  of  the  rent  from  whatever  persons 
offer  to  pay  it,  and  the  idea  that  in  so  doing  he  may  be  creating  a 
new  tenancy  does  not  occur  to  him.  There  are,  however,  cases  to 
the  effect  that  the  acceptance  of  rent  from  the  lessee's  assignee 
does  effect  a  surrender,  relieving  the  lessee  from  liability  on  his 
covenants.^ ^•^'^  Occasionally,  the  fact  that  the  acceptance  of  rent 
from  the  assignee  is  accompanied  by  an  oral  agreement  to  release 
the  lessee  from  liability  has  been  regarded  as  showing  a  surren- 
der,!!'*'^  on  the  theory,  presumably,  that  this  shows  a  new  demise 

y.  Brown,  40  Neb.  722,  59  N.  W.  385,  sey  v.  Minnick,  43  Md.  112.  And 
42  Am.  St.  Rep.  692;  Hunt  v.  Card-  see  cases  cited  ante,  §  181  a,  note 
ner,  39  N.  J.  Law,  530;  Creveling  v.    659. 

De  Hart,  54  N.  J.  Law,  338,  23  Atl.  In  Whicher  v.  Cottrell,  165  Mass. 
611;  Wilson  v.  Lester,  64  Barb.  (N.  351,  43  N.  E.  114,  it  Is  said  that  the 
Y.)  431;  Wallace  V.  Dinning,  11  Misc.  fact  that  the  landlord  in  that  case 
317,  32  N.  Y.  Supp.  159;  Frank  v.  received  rent  from  the  lessee's  ven- 
Maguire,  42  Pa.  77;  Adams  v.  Burke,  dee  did  not  effect  a  termination  of 
21  R.  I.  126,  42  Atl.  515.  So  when  the  tenancy,  since  the  lessor  con- 
there  Is  a  change  of  tenants  conse-  tinued  to  claim  the  lessee  as  vendee 
quently  upon  a  change  In  the  mem-  and  made  out  bills  for  rent  against 
bership  of  the  firm,  to  the  original  him,  thns  implying  that  otherwise 
members  of  which  the  lease  was  the  receipt  of  rent  from  him  would 
made.  Graham  v.  Whichelo,  1  Cromp.  have  had  that  effect. 
&  M.  188;  Beall  v.  White,  94  U.  S.  n^d  People's  Sav.  Bank  v.  Alex- 
3S2,  24  Law.  Ed.  173;  Laughran  v.  ander,  140  Pa.  22,  21  Atl.  248;  Wal- 
Smith,  75  N.  Y.  205;  Doty  v.  Gil-  lace  v.  Kennelly,  47  N.  J.  Law,  242; 
bert,  43  Mich.  203,  5  N.  W.  89.  And  Vandekar  v.  Reeves,  40  Hun  (N.  Y.) 
the  fact  that  the  lessor  recognizes  430;  Golding  v.  Brennan,  183  Mass. 
the  new  members  as  tenants  other-  286,  67  N.  E.  239.  See  Dietz  v.  Kucks 
wise  than  by  acceptance  of  rent  (Cal.)  45  Pac.  832. 
from  them  has  properly  no  greater  Evidence  that,  at  the  time  the  les- 
effect.  See  Gault  v.  Shepard.  14  Ont.  see  informed  the  landlord  of  his  in- 
App.  203.  tention  to  assign  the  lease,  the  land- 

114c  This  appears  to  be  the  pur-  lord  said,  in  referring  to  certain 
port  of  Fry  v.  Patridge,  73  111.  51;  royalties  due  as  rent  from  the  les- 
Clemens  v.  Broomfield,  19  Mo.  118;  see,  that  he  would  get  them  from  the 
Hutcheson  v.  Jones,  79  Mo.  496;  Kin-    assignee,  was  held  to  be  admissible 

L.  and  Ten.  84. 


1330  SURRENDER.  §  190 

to  the  assignee.  In  one  case  a  finding  of  a  new  demise  was  re- 
garded as  justified  when  the  lessor  not  only  accepted  rent  from 
the  assignee,  but  also  made  repairs  at  his  request,  and,  on  his 
abandonment  of  the  premises,  bought  his  personal  property,  cred- 
iting the  price  on  the  rent,  and  made  no  demand  on  the  lessee  till 
after  the  end  of  the  term.ii^®  And  likewise,  the  fact  that,  the  les- 
see having  disposed  of  a  half  interest  in  the  premises  to  another,  he 
paid  one-half  only  of  the  rent  subsequently  due,  and  referred  the 
lessor  to  such  other  for  the  other  h.Jf,  and  that  all  subsequent 
bills  for  rent  were  thereafter  made  out  one-half  against  such 
other,  who  paid  accordingly,  was  regarded  as  sufficient  evidence 
of  a  surrender  as  to  one-half  the  premises.!^*' 

The  action  of  the  landlord  in  suing  the  lessee's  assignee  on  the 
covenant  for  rent  in  the  lease,  at  the  instigation  of  the  lessee, 
has  been  decided  not  to  show  an  election  to  accept  the  assignee  as 
lessee.^^"*^  In  this  last  case  there  is  a  dictum  that  if  such  an 
action  against  the  assignee  be  brought  by  the  landlord  "of  his  own 
motion,"  it  might  perhaps  show  such  an  election.  But  it  seems 
most  questionable  whether  such  an  effect  should  in  any  case  be 
given  to  the  mere  bringing  of  an  action  against  the  assignee  on  the 
covenant  for  rent.  It  has  been  the  law  for  many  years  that  the 
landlord  may  sue  either  the  lessee  or  his  assignee  on  such  a  cove- 
nant, or  may  sue  both  of  thera,ii'i^  and  it  has  never  before  been 
suggested  that  by  first  suing  the  assignee  he  loses  the  right  to  sue 
the  lessee.  Indeed,  the  fact  that  he  sues  on  the  covenant  in  the  in- 
strument of  lease  would  seem  of  itself  to  be  a  strong  evidence 
that  he  regards  the  lease  as  still  in  existence. 

The  giving  of  a  receipt  for  rent  by  the  landlord  in  the  name 
of  the  person  to  whom  the  possession  has  been  transferred  has 
been  said  to  be  evidence  of  a  recognition  of  him  as  lessee,^!^*  but 
this  is  not  conclusive,!!^^  and  it  would  seem  to  be  entitled  to  but 

as  tending  to  show  that  he  intended  ii4h  See  Brett  v.  Cumberland,  Cro. 

to  make  his  own  terms  with  the  in-  jac.    521;    Bachelour    v     Gage     Cro 

coming    tenants,    regardless    of    the  ^ar.  188;  Sutliff  v.  Atwood    15  Ohio 

lease,  instead  of  treating  him  as  as-  g^   ^^g.  Whetstone  v.  McCartney   32 

signee.     De    Hart    v.    Crevelmg,    57  .,      ...         ^       .      „  ,o.  , 

N.  J.  Law.  642.  32  Atl.  212.  ^°-  '^'^  ^"'^  ^^t^'  §  ^'^  ^• 

ii4eColton    V.    Gorham.    72    Iowa.  "^' Laurance   v.    Faux,   2   Fost.   ft 

234,   33   N.  W.   76.  ^-  '*^^- 

ii4f  Fry  V.  Patridge,  73  111.  51.  ^"^  Graham  v.  Whichelo,  1  Cromp. 

ii4gWhitcomh  v.  Cummings,  68  N.  &  M.  188. 
H.  67,  38  Atl.  503. 


BY  OPERATION  OF  LAW.  1331 

little  weight,  when  snch  person  is  the  lessee's  assignee,  since  the 
I  eelpt  woulk  naturally  be  given  to  the  person  who  ^s  -^^^^  p^^ 
xnary  obligation  to  pay  the  rent  and  -^^^^^'^^l'-]'^^^^^ 
ceipt  for  rent   given  to  the  assignee  recxtes  that  l^^'^f^^^J 
for  a  month  only,  while  the  original  lease  was  for  a  logger  tim 
is  evidence,  as  against  the  landlord    of  a  --/--'  "^^ 
one  case  this  effect  seems  to  have  been  given  to  ^^  ^^^^^^^^^^^ 
with  the  new  tenant  making  the  rent  payable  monthly  instead  ot 
quarterly  as  in  the  original  lease.ii^"* 

In  one  case  it  is  decided  that  the  landlord's  assent  to  an  as^ 
signment  by  the  lessee  effects  a  surrender  by  operation  of  law. 
This  is,  it  is  submitted,  incorrect.^i^" 

(2)     Acceptance  of  different  class  of  interest.    Not  only  is  a 
surrender  effected  by  operation  of  law  on  the  tenant  sac^epta^^^^^^^ 
of  a  new  lease  inconsistent  with  the  previous  lease,  but  this  result 
a  so  ?onows  on  his  acceptance  of  any  other  interest  in  the  premis 
Consistent  with  such  lease,  as  when  ''a  lessee  for  years  accep 
a  grant  of  a  rent,  common,  estovers,  herbage,  or  the  W^^,  ^or  life 
or  years,  out  of  the  same  lands."-^     It  has  even  been  decided  tha 
a  tenant  by  agreeing  orally  thereafter  to  hold,  not  as  tenant,  but 
merely  as  a  servant  of  the  lessor,  effects  a  surrender  by  operation 
of  law  ii«     Since,  however,  as  servant,  one  takes  no  interest  m  the 
premises,  it  is  somewhat  difficult  to  perceive  such  an  inconsisten- 
cy between  the  new  agreement  and  the  pre-existing  lease  as  to  have 
this  effect     The  new  agreement  seems  to  involve  m  effect  an  oral 
surrender,  invalid  under  the  statute,  accompanied  by  a  contract 
as  to  the  future  personal  relations  of  the  parties.^^^ 

There  are  decisions  to  the  effect  that  a  contract  for  the  sale 
of  the  leased  premises  by  the  landlord  to  the  tenant  effects  a 

XI..  see  Detroit  Pharmacal  Co.  v.       "-^  Bac.  Abr    Leases  (S)   2    1. 

Burt    124  Mich.  220.  82  N.  W.  893;        -« Peter  v.  Kendal^ «  Barn    &  C 

Wnson  V.  Lester,  64  Barb.    (N.  Y.)     703;    Lambert  v.   McDonnell,  15    Ir 

C.  L.  136. 

^^Li  Wallace  v.  Kennelly,  47  N.  J.       "^  The  cases  cited   appear  not  to 
1141  Wallace  v.  xv  ^^  ^^  ^^^^^^  ^.^^  Gybson  v.  Searls. 

^^iT;.  Murray    v.    Shave,  9    N.    Y.    Cro.  Jac.  84,  177,  in  which  it  was  de- 

SuTer    C      (2  Duer)   182.  cided   that  there  was  no   surrender 

ii!nBowen    v.    Haskell.  53    Minn,    of  the  lease  of  a  manor  as  a  result 

ii4n  Bowen    V  ^^^  lessee's  acceptance  of  the  office 

lUoSee  ante,  §  157  a  (2)  at  notes   of  bailiff  of  the  manor. 

297-299. 


1332 


SURRENDER.  §  190 


surrender  by  operation  of  law.iis  In  England  it  has  been  decided 
tl.at  such  a  contract  does  not  ordinarily  have  that  effect,  for  the 
reason  that  it  is  impliedly  subject  to  a  condition  that  the  vendor 
shall  have  a  good  title,  the  opinion  being  expressed,  however, 
that  a  surrender  would,  in  the  absence  of  such  a  condition,  re- 
sult as  from  a  new  demise,  on  the  ground  that  one  taking  posses- 
sion under  a  contract  for  the  sale  of  land  is  a  tenant  at  will,ii9 
a  view  as  to  the  effect  of  such  holding  which  has  been  occasionally 
asserted  there  and  in  this  country .120 

e.  Transfer  of  possession  to  landlord— (1)  The  general  doc- 
trine. A  second  mode  of  surrender  by  operation  of  law,  and 
one  which  frequently  occurs,  results  from  the  relinquishment  of 
possession  by  the  tenant  and  the  resumption  of  possession  by  the 
landlord,  whether  this  is  by  or  without  agreement  between  the 
parties.^ 21  The  theory  of  such  a  surrender  would  seem  to  be  that 
the  revesting  of  possession  in  the  landlord  to  the  exclusion  of 
the  tenant,  by  the  action  of  both  parties,  being  inconsistent  with 
the  continuance  of  an  outsta^nding  leasehold  in  the  tenant,  both 
are  estopped  to  assert  that  the  relation  of  landlord  and  tenant 
stiU  exists.  Such  a  surrender  may  be  of  either  the  whole  or  oi 
merely  a  portion  of  the  premises.^ 22 

118  Lewis  V.  Angermiller,  89  Hun,  81  Mo.  241;  Graham  v.  Anderson,  3 
65,  35  N.  Y.  Supp.  69.  This  decision  Har.  (Del.)  364;  Dennis  v.  Miller,  68 
seems  to  be  based  largely,  however,  N.  J.  Law,  320,  53  Atl.  394;  Clator 
on  the  fact  that  this  was  what  the  v.  Otto,  38  W.  Va.  89,  18  S.  E.  378; 
parties  intended.  A  similar  decision  Goldsmith  v.  Darling,  92  Wis.  363, 
Is  made  in  Denison's  Ex'rs  v.  Werl^,  66  N.  W.  397;  Elliott  v.  Aiken,  45 
7  Serg.  &  R.  (Pa.)  372,  and  Doe  d.  N.  H.  30;  Kelly  v.  Noxon,  64 
McPherson  v.  Hunter,  4  U.  C.  Q.  B.  Hun.  281,  18  N.  Y.  Supp.  909;  El- 
449.  gutter  V.  Drishaus,  44  Neb.  378,  63 

119  Doe  d.  Gray  v.  Stanion,  1  Mees.  N.  W.  19.  In  Tully  v.  Dunn,  42  Ala. 
&  W.  695.  262,    94   Am.    Dec.   646,   it   was  held 

120  See  ante,  §  43  a  at  note  5.  that  if  the  lessee  failed  to  take  pos- 

121  Grimman  v.  Legge,  8  Barn  &  C.  session,  the  lessor  might  "re-enter" 
324;  Dodd  v.  Ackiom,  6  Man.  &  G.  and  so  terminate  the  lease.  This 
672;  Phene  v.  Popplewell,  12  C.  B.  appears  to  come  within  the  same 
(N.  S.)  334;  Shahan  v.  Herzberg,  doctrine,  It  being  presumably  imma- 
73  Ala.  59;  Hart  v.  Pratt,  19  Wash,  terial  whether  the  lessee  refrains 
560,  53  Pac.  711;  Lamar  v.  McNa-  from  taking  possession  or  reliu- 
mee,  10  Gill.  &  J.   (Md.)  116,  32  Am.  quishes  it  after  taking  it. 

Dec.  152;  Talbot  V.  Whipple,  96  Mass.  122  See  Hewitt  v.  Hornbuckle,  97 
(14  Allen)  177;  Williims  v.  Jones,  111.  App.  97;  Smith  v.  Pendergast,  26 
64  Ky.  (1  Bush)  621;  Prior  v.  Kiso,    Minn.    318,   3   N.   W.   978;    Bless   v. 


§  190  BY  OPERATION  OP  LAW.  1333 

The  question  whether  there  is  an  agreement  for  such  transfer 
of  possession  is  entirely  immaterial.  The  tenant  may  give  his 
landlord  possession  by  agreement,  but  more  frequently  a  sur- 
render occurs  as  a  result  of  the  relinquishment  of  possession  by 
the  tenant  and  the  resumption  of  posssession  by  the  landlord, 
either  for  the  sake  of  protecting  the  premises  from  injury,  or  of 
saving  himself  from  loss  owing  to  his  inability  to  collect  the  rent 
from  the  tenant.  That  the  landlord  may  thus  take  possession 
on  the  tenant's  abandonment  seems  to  be  generally  conceded,^^^ 
but  the  abandonment  must  be  of  a  permanent  character,  and  the 
landlord  cannot  resume  control  merely  because  the  tenant  has 
temporarily  vacated  the  premises.124 

(2)  Eesumption  by  landlord  of  possession  necessary.  The 
mere  abandonment  of  possession  by  the  tenant,  however  per- 
manent he  may  intend  this  to  be,  cannot  effect  a  surrender,  re- 
lieving the  tenant  from  his  obligations  under  the  lease,  unless  the 
landlord  does  resume,  that  is,  accept,  possession.^^s     The  tenant 

Jenkins,  129  Mo.  647,  31  S.  W.  938;  lins  v.  Moody,  72  Ma  135;  Hunting- 
Peters  V.  Newkirk,  6  Cow.  (N.  Y.)  ton  v.  Parkhurst,  87  Mich.  38,  49  N. 
103.  W.  597,  13  L.  R.  A.   83,  24  Am.   St. 

123  See  Shahan  v.  Herzberg,  73  Rep.  146;  Lucy  v.  Wilkins,  33  Minn. 
Ala.  59;  Crawley  v.  Mullins,  48  Mo.  441,  23  N.  W.  861;  Kerr  v.  Clark,  19 
517;  Packer  V.  Cockayne,  3  G.  Greene  Mo.  132;  Laughran  v.  Smith,  75  N. 
(Iowa)  111;  Haller  v.  Squire,  91  Y.  205;  Reeves  v.  McComesky,  163 
Iowa,  10,  58  N.  W.  921;  Kiplinger  v.  Pa.  571,  32  Atl.  96;  Barlow  v.  Wain- 
Greene,  61  Mich.  340,  28  N.  W.  121,  wright,  22  Vt.  88,  52  Am.  Dec.  79. 

1    Am.    St.    Rep.    584;     Torrans    v.  In  Teller  v.  Boyle,  132  Pa.  56,  18 

Rtricklin,  52  N.  C.  (7  Jones  Law)  50;  Atl.    1069,    it   was    decided   that   an 

Pier  V.  Carr,   69  Pa.  326;    Zigler  v.  allegation,   as    a   defense   to   an   ac- 

McClellan,  15  Or.   499,  16  Pac.  179.  tion   for   rent,   that   the   lessee   had 

See  ante,  §  3  b  (2),  at  notes  50-55.  surrendered  the  premises,  was  of  no 

124  Larkiu  v.  Avery,  23  Conn.  304;  avail  without  a  further  averment 
Hough  v.  Brown,  104  Mich.  109,  62  that  the  lessor  accepted  the  sur- 
N.  W.  143;  McKinney  v.  Reader,  7  render  and  released  him.  Perhaps 
Watts  (Pa.)  123;  Aye  v.  Phila-  a  different  view  might  have  been 
delphia  Co.,  193  Pa.  451,  44  Atl.  555,  taken  If  the  averment  had  been  of 
74  Am.  St.  Rep.  696;  Chancey  v.  the  surrender,  not  of  the  premises. 
Smith,  25  W.  Va.  404,  52  Am.  Rep.  but  of  the  leasehold  interest.  The 
217.  common-law    precedents    seem    ordi- 

125  Meyer  v.  Smith,  33  Ark.  637;  narily  to  have  contained  an  averment 
Lockwood  V.  Lockwood,  23  Conn.  425;  of  acceptance  or  assent  by  the  les- 
Stobie  V.  Dills,  62  111.  433;  Biggs  v.  sor  (see  Peto  v.  Pemberton,  Cro.  Car. 
Stueler,  93  Md.  100,  48  Atl.  727;  Rol-  101,  1  Wms.  Saund,  236  a,  note),  but 


^334  SURRENDER.  §  190 

may,  by  assigning  to  another,  relieve  himself  from  the  obliga- 
tions arising  out  of  privity  of  estate,  but  not  those  arising 
from  privity  of  contract,  and  he  can  relieve  himself  from  neither 
by  merely  leaving  the  premises,  without  any  action  on  the  part 
of  the  lajidlord.  This  principle  is  sometimes  asserted  by  a  state- 
ment that  a  surrender  is  invalid  or  nugatory  unless  accepted  by 
the  landlord,  but  this,  is  to  be  observed,  involves  a  use  of  the  word 
"surrender"  in  its  nontechnical  sense,  before  referred  to,  of  a 
relinquishment  of  possession,  as  distinguished  from  its  technical 
sense  of  a  yielding  up  of  the  leasehold  estate.  Indeed,  in  England, 
and  presumably  in  a  number  of  states  in  this  country,  as  before 
stated,  a  surrender,  using  the  term  in  its  technical  sense,  if  ex- 
press, is  valid,  though  not  accepted,  until  repudiated  by  the  person 
to  whom  made.  Such  a  use  of  the  term  surrender  in  its  nontech- 
nical sense,  of  abandonment,  or  relinquishment  of  possession,  with 
the  corresponding  use  of  the  word  "acceptance"  as  meaning 
resumption  of  possession  by  the  landlord,  is  extremely  frequent 
in  connection  with  that  mode  of  surrender  by  operation  of  law 
which  we  are  now  discussing,  with  the  unfortunate  result  of 
tending  to  obscure  both  the  proper  meaning  of  the  term  and  the 
nature  of  such  surrender. 

The  resumption  of  possession  may  be  by  another  person  on 
behalf  of  the  landlord,  provided  he  has  authority  for  this  purpose, 
and  the  effect  is  the  same  as  if  it  were  by  the  landlord  directly. ^-^ 
This  is  sometimes  expressed  by  saying  that  a  surrender  may  be 
made  to  an  agent  of  the  landlord,  or  may  be  accepted  by  such 
agent,  but  this  again  involves  the  use  of  the  term  surrender  in  the 
nontechnical  sense  above  referred  to.  A  surrender,  using  the 
term  in  its  technical  sense,  can  obviously  not  be  made  to  any 

since  a  surrender  was  valid  at  com-  1072,  48  Am.  St.  Rep.  671;   Peche  v. 

mon   law   without   acceptance,    until  Sloane,   16  App.   Div.   458,  45   N.   Y. 

disaffirmed      by      the      surrenderee  Supp.  37;   De  Morat  v.  Falkenhagen, 

(Thompson  v.  Leach,  2  Vent.   207),  148  Pa.  393,  23  Atl.  1125,  33  Am.  St. 

an    averment    of    acceptance    would  Rep.    834;    Lovejoy    v.    McCarty,    94 

seem  to  have  been  superfluous  until  Wis.    341,    68   N.    W.    1003;    Hart  v. 

the    lessor    undertook    to    disaflirm.  Pratt,    19    "Wash.    560,    53    Pac.    711; 

The  case  last  cited  appears  to  be  to  Amory  v.  Kannoffsky,  117  Mass.  351, 

this  effect.  19     Am.     Rep.     416;,     Goldsmith     v. 

120  Paget  V.  Electrical  Engineering  Schroeder,  93  App.  Div.  206,  87  N.  Y. 

Co.,    85    Minn.    311,    88    N.    W.    844;  Supp.  558. 
Blake  v.  Dick,  15  Mont.  236,  38  Pac. 


^  ^QQ  BY  OPERATION  OF  LAW.  1335 

person  other  than  the  landlord,  since  he  alone  has  the  reversion 
An  agent  merely    authorized  to   collect   rent   for   the    landlord 
has  no  authority,  it  has  been  decided,  to  thus  resume  possession 

in  his  behalf.^2^ 

(3)  What  constitutes  resumption  of  possession.  A  question 
frequently  arises  as  to  what  constitutes  a  resumption  of  posses- 
sion by  the  landlord,  on  the  abandonment  of  the  premises  by  the 
tenant,  sufficient  to  effect  a  surrender.  It  may  be  necessary  for 
the  landlord  to  assume  some  measure  of  control  over  the  property 
to  protect  it  from  injury,  or  he  may  desire  to  utilize  it  in  order  to 
recoup  himself  for  the  loss  of  the  stipulated  rent,  and  yet  m 
neither  of  these  cases  does  he  usually  desire  to  preclude  himself 
from  asserting  a  personal  liability  on  the  covenant  for  the  pay- 
ment of  rent. 

The  fact  that  the  landlord  enters  and  cares  for  the  premises 
after  the  tenant's  abandonment  is  not  regarded  as  showing  a  re- 
sumption of  exclusive  possession,  effecting  a  surrender,i28  nor 
does  the  making  of  repairs  in  itself  have  that  effect.^^D  The 
question  is  whether  the  possession  taken  by  him  is  of  an  exclusive 
character,  with  the  apparent  intention  of  occupying  and  control- 
ling the  premises  as  his  own,  to  the  exclusion  of  the  tenant,  in  case 
the°  latter  desires  to  return,i3o  and  this  is  ordinarily  a  question 
of  fact  131 

12T  Blake  v.  Dick,  15  Mont.  236,  38  National  Union  Bldg.  Ass'n,  166  111. 
Pac.  1072,  48  Am.  St.  Rep.  671;  221,  46  N.  E.  752;  Livermore  v.  Ed- 
Woodward  V.  Lindley,  43  Ind.  333.        dy's  Adm'r,  33  Mo.  547;  Sesslngliaus 

128  Joslin  V.  McLean,  99  Mich.  480,  v.  Knocke,  127  Mo.  App.  300,  105  S. 
58  N.  W.  467;  Duffy  v.  Day,  42  Mo.  W.  283;  Pier  v.  Carr,  69  Pa.  326; 
App.  638;  Bre'uckmann  V.  Twibill,  83  Breuckmann  v.  Twibill,  89  Pa.  58; 
Pa.  58-  Requa  v.  Domestic  Pub.  Co.,  Texas  Loan  Agency  v.  Fleming,  92 
11  Misc.  322,  32  N.  Y.  Supp.  125.  So  Tex.  458.  49  S.  W.  1039,  44  L.  R. 
the    cleaning    of    the    windows    by   A.  279. 

the  landlord  has  been  decided  not  i3o  Welcome  v.  Hess,  90  Cal.  507, 
to  have  such  an  effect.  Milling  v.  27  Pac.  369,  25  Am.  St.  Rep.  145; 
Becker,  96  Pa.  182.  Nor  does  the  Duffy  v.  Day,  42  Mo.  App.  638;  Meek- 
landlord's  entry  to  ascertain  the  need  er  v.  Spalsbury,  66  N.  J.  Law,  60,  48 
of  repairs.  Chandler  v.  Hinds,  135  Atl.  1026. 
Wis.  43,  115  N.  W.  339.  isi  Hays  v.  Goldman,  71  Ark.  251, 

129  Cook  V.  Anderson,  85  Ala.  99,  4  72  S.  W.  563;  Carson  v.  Arvantes,  10 
So.  713;  Haynes  v.  Aldrich,  133  Colo.  App.  382,  50  Pac.  1080;  Okie 
N.  Y.  287,  31  N.  E.  94,  16  L.  R.  A.  V.  Pearson,  23  App.  D.  C.  170;  Brewer 
183,  28  Am.  St.  Rep.  636;  Brewer  v.  v.  National  Bldg.  Ass'n,  166  111.  221, 


1336  SURRENDER.  §  I9O 

Y7hen  tJie  tenant,  upon  abandoning  the  premises,  sends  the 
key  to  the  landlord,  the  fact  that  the  latter  accepts  and  retains 
it,  instead  of  sending  it  back,  does  not  necessarily  show  a  re- 
sumption by  him  of  exclusive  possession,  so  as  to  effect  a  sur- 
render.132, 133     j>^^  the  case  is  the  same  when  the  key  is  left  at 

46  N.  E.  752;  Armour  Packing  Co.  v.  son  v.  Crossett,  62  Ark.  393,  36  S.  W. 
Des  Moines  Pork  Co.,  116  lo-wa,  723,  27.  Evidence  that,  on  the  burning 
89  N.  W.  196,  93  Am.  St.  Rep.  270;  of  the  building  on  the  premises,  the 
Sander  v.  Holstein  Commission  Co.,  lessee  moved  and  failed  to  rebuild, 
lis  Mo.  App.  29,  121  Mo.  App.  293,  and  a  few  days  after  the  fire  the 
99  S.  W.  12;  Wood  v.  Welz,  40  App.  landlord  sold  the  property  without 
Div.  202,  57  N.  Y.  Supp.  1121;  Un-  any  expression  of  objection  by  the 
derhill  v.  Collins,  32  N.  Y.  St.  Rep.  tenant,  who  was  in  the  neighbor- 
961,  10  N.  Y.  Supp.  680;  White  v.  hood,  was  held  sufficient  to  justify 
Berry,  24  R.  I.  74,  52  Atl.  682;  Hart  a  finding  of  a  surrender.  Zigler  v. 
v.  Pratt,  19  Wash.  560,  53  Pac.  711;  McClellan,  15  Or.  499,  16  Pac.  179. 
Kneeland   v.   Schmidt,   78   Wis.    345,  That   the   lessor,   after   the  tenant's 

47  N.  W.  438,  11  L.  R.  A.  498;  Reeve  abandonment  of  the  premises,  grant- 
v.  Bird,  1  Cromp.  M.  &  R.  31.  See  ed  a  right  of  way  to  the  city  for 
Stott  V.  Chamberlain  (S.  D.)  114  N.  the  use  of  the  public,  was  held  not 
W.  683,  ante,  note  5  a.  to    show    an    acceptance,    a    license 

That  the  landlord  made  no  an-  "for  people"  to  pass  for  the  same 
swer  to  the  tenant's  statement  that  purpose  having  been  previously 
he  intended  to  leave  on  a  certain  given  by  the  tenant.  Pierson  v, 
day,  and  subsequently,  after  the  ten-  Hughes,  87  N.  Y.  Supp.  223.  That 
ant  had  left,  demanded  that  the  ten-  immediately  after  the  abandonment 
ant  remove  his  sign,  and  placed  of  the  premises  by  the  tenant  the 
Theatre  posters  in  the  windows,  was  landlord  notified  the  surety,  and 
regarded  as  evidence  to  support  a  offered  him  the  possession,  and  de- 
finding  of  acceptance  of  the  prem-  manded  the  unpaid  rent  of  him.  Is 
ises.  Lafferty  v.  Hawes,  63  Minn,  not  evidence  of  a  surrender  of  the 
13,  65  N.  W.  87.  Where  the  lessees  leasehold.  Lucy  v.  Wilkins,  33 
wrote  the  lessor  that  they  could  Minn.  441,  23  N.  W.  861.  And  that 
not  work  the  farm,  and  that  the  the  landlord  collected  rent  from  a 
latter  might  rent  it  to  some  one  else,  subtenant  of  part  of  the  promises 
and  the  lessor,  without  replying,  was  held  not  to  show  a  resumption  of 
took  charge  of  the  place  and  con-  possession  for  this  purpose.  Texas 
trolled  it  for  a  year,  and  Induced  Loan  Agency  v.  Fleming,  92  Tex.  458, 
a  subtenant  to  take  up  a  rent  note  49  S.  W.  1039,  44  L.  R.  A.  279. 
executed  to  the  lessees  and  make  a  132, 133  Oastler  v.  Henderson,  2  Q.  B. 
new  note  to  him,  and  did  not  notify  Div.  575;  Thomas  v.  Nelson,  69  N.  Y. 
the  lessees  that  he  was  managing  118;  Daggett  v.  Champney,  122  App. 
the  premises  for  them,  or  that  he  Div.  254,  106  N.  Y.  Supp.  892;  With- 
expected  them  to  make  up  any  defl-  ers  v.  Larrabee,  48  Me.  570;  Joslln 
ciency  in  the  rents,  it  was  held  that  v.  McLean,  99  Mich.  480,  58  N.  W. 
a    surrender    was    shown.     William-   467;  Ledsinger  v.  Burke,  113  Ga.  74, 


»  .QQ  BY  OPERATION  OF  LAW.  1337 

the  landlord's  residence  or  place  of  biisiness,i34  or  is  given  by  the 
tenant  to  a  third  person,  who  is  not  authorized  to  receive  it,  so 
that  the  laJidlord  must  either  take  charge  of  it  or  run  the  risk 
of  its  loss.135    The  fact  that  the  landlord,  at  the  time  of  obtaining 
or  accepting  control  of  the  key,  or  previously  thereto,  states  or 
explicitly  shows  that  he  has  no  intention  of  regarding  the  ten- 
ancy as  terminated,  or  of  releasing  the  tenant  from  his  obliga- 
tions under  the  lease,  is  sufficient  of  itself  to  prevent  such  re- 
sult.136. 13T     On  the  other  hand,  the  acceptance  of  the  key  may  be 
considered  with  other  facts  as  tending  to  show  a  resumption  of  pos- 
session by  the  la.ndlord,  and  a  consequent  termination  of  the  ten- 
ancy.138     And  the  fact  that  after  abandonment  by  the  tenant 
the  landlord  asked  him  for  the  key,  and  retained  it,  has  been  re- 
garded as  conclusively  showing  a  resumption  of  exclusive  pos- 

session.i^^ 

That   the   landlord,    after   the    tenant's   abandonment   of   the 
premises,  makes  efforts,  by  posting  notices  or  otherwise,  to  make 

38  S  E  313;  Prentiss  v.  Warne,  10  Smith,  70  N.  Y.  537;  Townsend  v. 
Mo  601-  Buck  V.  Lewis,  46  Mo.  App.  Albers,  3  B.  D.  Smith  (N.  Y.)  560; 
227-  Martin  v  Stearns,  52  Iowa,  345,  Spies  v.  Voss,  30  N.  Y.  St.  Rep.  548,  9 
3  N  W  92  35  Am.  Rep.  278;  Ladd  v.  N.  Y.  Supp.  532;  Dorrance  v.  Bone- 
Smith  6  Or  316;  Milling  v.  Becker,  steel,  51  App.  Div.  129,  64  N.  Y.  Supp. 
96  Pa' 182-  Newton  v.  Speare  Laun-  307;  Bowen  v.  Clarke.  22  Or.  566,  30 
dering  Co  '  19  R.  I.  546,  37  Atl.  11.        Pac.  430,  29  Am.  St.  Rep.  625;  Nel- 

134  Underbill  v.  Collins,  132  N.  Y.  son  v.  Thompson,  23  Minn.  508: 
269,  30  N.  E.  576;  Lucy  v.  Wilkins,  Landt  v.  Schneider,  31  Mont.  15,  77 
33  Minn    441,  23  N.  W.  861;  Tolle  v.    Pac.  307. 

Orth    75    Ind    298    39  Am.  Rep.  147;  lasphene  v.   Popplewell,   12   C.  B. 

Durf'ee   v.    United    Stores,   24   R.    I.  (N.  S.)  334;   Elliott  v.  Aiken.  45  N. 

254    52  Atl   1087;  Chandler  v.  Hinds,  H.  30;   Hesseltine  v.  Seavey.  16  Me. 

135' Wis  43    115N.  W.  339.  212;    Buckingham  Apartment  House 

135  Lucy  V.  Wilkins,  33  Minn.  441,  Co.  v.  Dafoe,  78  Minn.  268,  80  N.  W. 
23  N  W  861-  Douglass  v.  Seiferd,  18  974;  Hegeman  v.  McArthur,  1  B.  D. 
Misc  188  41  N.  Y.  Supp.  289;  Bark-  Sn)ith  (N.  Y.)  147;  Bowen  v.  Clarke, 
ley  V  Mc'cue,  25  Misc.  738,  55  N.  Y.  22  Or.  566,  30  Pac.  430,  29  Am.  St. 
Supp  608;  Obendorfer  v.  Meacham,  Rep.  625;  Brewer  v.  National  Union 
110  N.  Y  Supp.  340;  Blake  v.  Dick.  Bldg.  Ass'n,  166  111.  221,  46  N.  B. 
15  Mont  236  38  Pac.  1072,  48  Am.  St.  752;  Ewing  v.  Barnard,  84  N.  Y. 
Rep.  671;  Lane  v.  Nelson,  167  Pa.  Supp.  137;  Feust  v.  Craig,  109  N.  Y. 
602,31  Atl.  864.  Supp.  742.                           „      „„     t    a 

136. 137  Withers  V.  Larrabee,  48  Me.  iso  Harris  v.  Dub,  57  Ga.  77;  Led- 

570;  Scott  V.  Beecher,  91  Mich.  590.  singer  v.  Burke,  113  Ga.  74,  38  S.  B. 

52  N.  W.   20;    Aner  v.  Penn,  99  Pa.  313. 
370,   44   Am.    Rep.   114;    Morgan    v. 


1338  SURRENDER.  §  190 

a  lease  to  another,  does  not  of  itself  show  a  resumption  of  pos- 
session terminating  the  tenancy,i^<^  nor  does  the  fact  that  such 
efforts  are  accompanied  by  assertions  on  his  part  that  the 
tenant  has  given  up  his  lease  have  that  effects  ^^^  And  a  like  view 
has  been  taken  of  his  action  in  offering  the  premises  for  sale, 
with  the  right  in  the  purchaser  to  immediate  possession.i-^2 

(4)  Reletting  by  landlord  to  another.  The  question  whether, 
upon  the  tenant's  abandonment  of  the  premises,  the  landlord 
may  lease  them  to  another  without  thereby  causing  a  surrender 
of  the  lease,  and  consequent  termination  of  the  tenant's  liability 
for  rent,  is  one  of  great  practical  interest,  upon  which  the  authori- 
ties are  not  in  accord.  There  are  a  number  of  decisions  to  the 
effect  that  the  landlord  may  so  "relet"  to  another  and  still  hold 
the  former  tenant.^^^  By  others  it  is  regarded  as  necessary,  in 
order  that  such  reletting  shall  not  effect  a  surrender,  that  the 
landlord,  before  making  the  new  lease,  inform  the  tenant  that 
he  is  about  to  do  so  on  the  latter 's  account,  that  is,  that  the  pur- 
pose is  to  reduce,  but  not  necessarily  to  extinguish,  the  latter 's  lia- 

140  Walls  V.  Atcheson,  3  Bing.  462;  III.  App.  609;  Humiston,  Keeling  & 
Oastler  v.  Henderson,  2  Q.  B.  Div.  Co.  v.  Wheeler,  175  111.  514,  51 
575;  Gaines  v.  McAdam,  79  111.  App.  N.  E.  893,  67  Am.  St.  Rep. 
201:  Vincent  v.  Frelich,  50  La.  Ann.  232;  Marshall  v.  John  Grosse  Cloth- 
378,  23  So.  373,  69  Am.  St.  Rep.  436;  ing  Co.,  184  lU.  421,  56  N.  E. 
Scott  V.  Beecher,  91  Mich.  590,  52  807,  75  Am.  St.  Rep.  181;  Hig- 
N.  W.  20;  Joslin  v.  McLean,  99  Mich,  gins  v.  Street  (Okla.)  92  Pac.  153; 
48,  58  N.  W.  467;  Buck  v.  Lewis,  46  Martin  v.  Stearns,  52  Iowa,  345, 
Mo.  App.  227;  Blake  v.  Dick,  15  3  N.  W.  92,  35  Am.  Rep.  278;  Stew- 
Mont  236,  38  Pac.  1072,  48  Am.  art  v.  Sprague,  71  Mich.  50,  38  N. 
St.  Rep.  671;  Haynes  v.  Aid-  w.  673;  Id.,  76  Mich.  184,  42  N. 
rich,  133  N.  Y.  287,  31  N.  E.  94,  16  W.  1088;  Bowen  v.  Clarke,  22  Or. 
L.  R.  A.  183,  28  Am.  St.  Rep.  636;  566,  30  Pac.  430,  29  Am.  St.  Rep.  625; 
Dorrance  v.  Bonesteel,  51  App.  Div.  Merrill  v.  Willis,  51  Neb.  162,  70  N. 
129,  64  N.  Y.  Supp.  307;  Feust  v.  W.  914;  Schelky  v.  Koch,  119  N.  C. 
Craig,  107  N.  Y.  Supp.  637;  Lane  v.  80,  25  S.  E.  713;  Auer  v.  Hoffman, 
Nelson,  167  Pa.  602,  31  Atl.  864.  132  Wis.  620,  112  N.  W.  1090.  And 
Compare  Eimermann  v.  Nathan,  116  see  Brown  v.  Cairns,  63  Kan.  584, 
Wis.  124,  92  N.  W.  550.  66   Pac.    639.     That  the  landlord   al- 

141  Milling  V.  Becker,  96  Pa.  182;  lowed  persons  to  occupy  the  aban- 
Gaines  v.  McAdam,  79  111.  App.  201.  doned    premises    temporarily    with- 

142  Reeves  v.  McComeskey,  168  Pa.  out  paying  rent  was  decided  not  to 
571.  32  Atl.  96.  put  an  end  to  the  tenancy.     Hardi- 
ng Aner   v.    Penn,   99    Pa.    370,   44  Fon   Whiskey  Co.  v.  Lewis,  114  Ga. 

Am.  Rep.  114;  Bradley  v.  Walker,  93   602,  40  S.  E.  702. 


§  190 


BY  OPERATION  OF  LAW.  1339 


bility  for  rent.^*^  By  still  another  line  of  decisions  it  is  adjudged 
that  the  reletting  will  terminate  the  liabilities  under  the  previous 
lease,  without  any  suggestion  being  made  that  a  notice  to  the 
previous  tenant  would  prevent  this  result.^-*^  In  two  quite  recent 
cases  it  is  decided  that  a  written  notice  by  the  landlord  of  his 
intention  to  relet,  to  which  the  teaiant  fails  to  reply,  is  not  suffi- 
cient to  prevent  the  operation  of  such  a  reletting  as  a  resumption 
of  exclusive  possession,  since  there  is  in  such  case  no  element  of 
assent  by  the  tenant  to  a  reletting.i'^^  In  c^se  the  reletting  is 
regarded  as  showing  a  resumption  of  the  possession,  the  surrender 
is  to  be  regarded  as  taking  place,  not  at  the  time  of  the  tenant's 
relinquishment  of  possession,  but  at  the  time  of  the  reletting.^^'^ 
In  reference  to  this  question,  of  the  effect  of  such  reletting 
by  the  landlord  to  a  third  person,  as  being  equivalent  to  a  resump- 

144  Brown  v.  Cairns,  107  Iowa,  727,  N.  W.  304,  114  Am.  St.  Rep.  715; 
77  N.  W.  478;  Alsup  v.  Banks,  68  Matthews'  Adm'r  v.  Tobener,  39  Mo. 
Miss.  664,  9  So.  895,  13  L.  R.  A.  598,    115;    Dagett  v.  Champney,  122  App. 

24  Am.  St.  Rep.  294;  Brown  v.  Div.  254,  106  N.  Y.  Supp.  892;  Pel- 
Cairns,  63  Kan.  584,  66  Pac.  639  ton  v.  Place,  71  Vt.  430,  46  Atl.  63,  76 
(semble);  Williamson  v.  Crossett,  62  Am.  St.  Rep.  782;  Witman  v.  Wa- 
Ark.  393,  36  S.  W.  27;  Hayes  v.  Gold-  try,  31  Wis.  638. 

man,  71  Ark.  251,  72  S.  W.  563;  Pal-        iie    Gray  v.  Kaufman  Dairy  &  Ice 

mer  v.  Myers,  79  111.  App.  409.  There  Cream  Co.,  162  N.  Y.   388,  56  N.  E. 

is  a  dictum  to  the  effect  that  a  notice  903,  76  Am.  St.  Rep.  327,  49  L.  R.  A. 

would  be  effectual  for  this  purpose  580;  Biggs  v.  Stueler,  93  Md.  100,  48 

in   Walls  v.   Atcheson,   3   Bing.   462.  Atl.   727.     In  the  first  of  the   above 

In  Oldewurtel  v.  Wiesenfeld.  97  Md.  cases  the  court  distinguishes  the  case 

165,  54  Atl.  969,  99  Am.  St.  Rep.  427,  of   Underbill    v.    Collins,    132    N.    Y. 

it  was  held  that,  notice  being  given,  269,  30  N.  E.  576,  on  the  ground  not 

the   reletting    did    not   effect   a   sur-  only  that   there    the  communication 

render.     And  see  White  v.  Berry,  24  of  the  landlord's  purpose  was  verbal, 

R.   I.  74,  52  Atl.   682;    Goldsmith  v.  but  also,  it  seems,  on  the  ground  that 

Schroeder,  93  App.  Div.  206,  87  N.  Y.  it  was  previous  to  the  tenant's  aban- 

Supp.    558;    Gutman   v.    Conway.    45  donment,  and  that  such  abandonment 

Misc.  363,  90  N.  Y.  Supp.  290;  Rucker  was   in   effect  an   acceptance   of  the 

V.  Tabor,  127  Ga.  101,  56  S.  E.  124.  landlord's  proposition  to  relet  for  ac- 

145  Qastler  v.  Henderson.  2  Q.  B.  count  of  the  tenant.  See,  as  to  the 
Div.  575;  Welcome  v.  Hess,  90  Cal.  Maryland  case,  the  comments  there- 
507,  27  Pac.  369,  25  Am.  St.  Rep.  145,  on  in  Oldewurtel  v.  Wiesenfeld,  97 
distinguishing  Respini  v  Porta.  89  Md.  165,  54  Atl.  969,  99  Am.  St.  Rep. 
Cal.  464,  26  Pac.  967,  23  Am.  St.  Rep.  427. 

488;  Rice  v.  Dudley,  65  Ala.  68;  Hes-  i47  Qastler  v.  Henderson,  2  Q.  B. 
seltine  v.  Seavey,  16  Me.  212;  Hay-  Div.  575;  Schuisler  v.  Ames,  16  Ala. 
cock  V.  Johnston,  97  Minn.  289,  106    73,    50  Am.  Dec.   168;    Marseilles  v. 


1340  SURRENDER.  §  igO 

tion  of  the  possession  of  the  premises,  it  may  be  said  that,  while  it 
seems  fair  that,  if  a  tenant  abandons  the  premises,  and  is  either 
not  accessible  to  suit,  or  is  of  doubtful  pecuniary  responsibility, 
the  landlord  should  have  the  privilege  of  avoiding  a  possible  loss 
of  the  whole  rent  by  leasing  to  another,  without  thereby  preclud- 
ing himself  from  recovering  from  the  original  tenant  any  de- 
ficiency yet  remaining,  it  is  difficult  to  harmonize  such  a  view 
with  well  settled  legal  principles.  The  act  of  the  landlord  in  un- 
dertaking to  lease  to  another,  without  the  former  tenant's  con- 
sent, is  necessarily  an  assumption  of  absolute  control  of  the  prem- 
ises, excluding  any  rights  of  possession  in  the  other.  The  landlord, 
by  giving  the  second  lease,  in  effect  asserts  that  he  alone  is  en- 
titled to  control  the  possession  of  the  premises.  Furthermore, 
looking  at  the  matter  from  a  somewhat  different  standpoint,  it 
is  necessary,  if  the  second  lease,  given  without  the  tenant's  con- 
sent, is  to  be  regarded  as  valid  to  confer  present  rights  of  pos- 
session, that  the  operation  of  the  former  lease  shall  have  come 
to  an  end,  since  two  distinct  persons  cannot  each  be  entitled  to  the 
exclusive  possession  of  the  same  premises.  As  has  been  remarked 
in  this  connection  "if  the  former  tenant  brings  ejectment  against 
the  new  tenant,  what  defense  can  the  new  tenant  have, — except 
that  plaintiff's  right  has  ceased T'^^s  jn  -vvhat  has  been  said  above 
it  is  assumed  that  the  reletting  is  without  the  consent  of  the  for- 
mer tenant.  The  cases  which  assert  that  the  reletting  does  not 
result  in  a  surrender  seem  usually  to  be  based  on  the  view  that, 
since  this  is  for  the  tenant's  benefit,  as  reducing  his  liability  for 
rent,  his  assent  thereto  is  to  be  presumed,  and  this  is  no  doubt 
the  view  of  those  cases  which  assert  the  landlord's  right  to  relet 
provided  he  first  notify  the  tenant.  But  there  is  nothing  in  the 
nature  of  their  relations  from  which  any  authority  in  the  landlord 
thus  to  act  for  the  tenant  can  be  inferred,  nor  can  such  inference 
properly  be  drawn  from  the  fact  that  the  tenant  has  vacated 
the  premises,  or  that  the  landlord  notified  the  tenant  of  his  purpose 
to  act  for  him.  Even  the  tenant's  express  consent  to  the  makiny 
of  a  new  lease  by  the  landlord  cannot  well  deprive  such  action  on 
the  latter 's  part  of  the  effect  of  a  resumption  of  possession  by 
him,  unless  the  reletting  can  be  regarded  as  legally  the  act  of  the 

Kerr,  6  Whart.  (Pa.)  500,  37  Am.  i48-Weloome  v.  Hess,  90  Cal.  507, 
Dec.  430,  27  Pac.  369,  25  Am.  St.  Rep.  145. 


i  190  BY  OPERATION  OF  LAW.  1341 

tenant,  in  which  case  it  must  take  effect  as  a  sublease  or  assign- 
ment of  the  existing  leasehold,  since  that  is  all  which  is  within 
the  tenant's  control.  The  only  alternative  seems  to  be  to  regard 
the  transaction  as  the  substitution  of  a  new  tenant  by  agreement, 
accompanied  by  a  transfer  of  possession,  which,  as  we  shall  pres- 
ently see,  in  itself  effects  a  surrender  by  operation  of  law,^^^*  but 
this  does  not  harmonize  with  the  actual  facts  of  the  case.  As  re- 
gards the  question  of  fairness  to  the  landlord,  there  seems  no  more 
reason  that  the  tenant's  abandonment  of  the  premises  should 
give  the  landlord  a  right  to  relet  than  that  his  mere  default  in 
performance  of  his  covenants,  without  abandonment,  should  have 
that  effect,  and  that  the  latter  is  not  the  case,  in  the  absence  of  a 
statute  or  express  provision  in  the  lease  authorizing  a  forfeiture, 
is  unquestionable.  In  either  case,  that  of  a  default  in  rent  ac- 
companied by  abandonment,  or  that  of  a  default  in  rent  alone,  it 
may  be  desirable  for  the  landlord  to  be  able  to  get  rent  for  the 
premises  from  another  tenant,  without  terminating  the  liability 
of  the  previous  tenant. 

As  the  lease  may  expressly  provide  that  the  tenant's  personal 
liability  for  the  sums  reserved  as  rent  shall  continue  even  after 
forfeiture  for  nonpayment,^^^  so  the  lease  may,  it  appears,  validly 
provide  that,  upon  the  premises  becoming  vacant,  the  landlord 
may  re-enter  and  relet,  and  apply  the  rent  so  received  upon  the 
rent  reserved  under  the  first  lease,^'^^  the  liability  of  the  former 
tenant  being  thus  retained  in  spite  of  the  new  lease.  Such  a  pro- 
vision is  to  be  upheld,  apparently,  either  on  the  theory  that  the 
landlord  is  thereby  made  agent  for  the  tenant  to  make  an  assign- 
ment or  sublease  on  behalf  of  the  latter,  in  case  of  the  latter 's 
vacation  of  the  premises,  or  on  the  theory  that  the  first  lease  is 
terminated  by  the  vacation  and  re-entry.     On  the  latter  theory, 

148a  See  post,  §  190  d.  is  to  the  effect,  apparently,  that  in 

149  See  ante,  §  182  j.  spite  of  such  a  provision  the  relet- 

150  Jones  V.  Rushmore,  67  N.  J.  ting  terminates  the  lease.  In  that 
Law,  157,  50  Atl.  587;  Hurley  v.  Seh-  case  the  landlord  relet,  giving  pos- 
ring,  43  N.  Y.  St.  Rep.  240,  17  N.  Y.  session  to  the  new  lessee  a  few  days 
Supp.  7;  Ogden  v.  Rowe,  3  E.  D.  before  the  time  at  which  the  latter 
Smith  (N.  Y.)  312;  James  v.  Coe,  32  was  to  begin  to  pay  rent  as  an  in- 
Misc.  674.  66  N.  Y.  Supp.  509;  Mc-  ducement  to  take  the  lease,  and  it 
Elroy's  Estate  v.  Brooke,  104  111.  was  held  that  the  former  tenant  was 
App.  220.  But  Schwartz  v.  Brucato,  discharged  from  the  time  of  such 
;57  App.  Div.  202,  68  N.  Y.  Supp.  289,  entry  by  the  new  lessee. 


;^342  SURRENDER.  §  190 

the  tenant's  cojitinning  liability  for  tlie  sums  thereafter  becoming 
due  is  not,  strictly  speaking,  a  liability  for  rent,  but  is  purely  con- 
tractual in  character.i^*^** 

(5)  Relinquishment  of  possession  on  la.ndlord's  demand.  With- 
out reference  to  any  subsequent  resumption  of  possession  by  the 
landlord,  it  is  sufficient,  according  to  some  cases,  that  the  aban- 
donment or  relinquishment  of  possession  by  the  tenant  is  in  ac- 
cordance Avith  a  previous  demand  or  request  for  possession  by  the 
landlord,  it  thus  being  immaterial  whether  the  landlord's  expres- 
sion of  assent  to  the  relinquishent  is  previous  to  or  after  its  oc- 
currence.^ ^^  It  is  on  this  theory,  it  seems,  that  vehen  the  landlord 
told  the  tenant  that  he  wished  to  erect  a  building  on  the  land, 
and,  the  tenant  making  no  objection,  the  building  was  erected, 
the  facts  were  decided  to  constitute  a  surrender  as  to  that  part  of 
the  land  occupied  by  the  building.^ ^^  Qn  the  other  hand  it  has 
been  held  that  a  mere  statement  by  the  landlord  that  if  the  ten- 
ant, who  had  desired  to  be  relieved  from  the  lease,  would  move 
out  immediately,  to  which  the  tenant  replied  merely  that  he  would 
"see  what  he  could  do,"  did  not  justify  the  tenant  in  moving 
out  two  days  later  and  asserting  a  surrender.i^^  _^^  a  notice 
to  the  tenant  to  move  "on  or  before"  the  last  day  of  the  term 
cannot  be  regarded  as  a  continuing  offer  to  accept  the  premises  at 
any  time  at  which  the  tenant  may  choose  to  leave. ^^"^ 

The  fact  that  the  landlord  authorized  the  tenant  to  quit  posses- 
sion and  that  the  latter  thereupon  did  quit  has,  in  two  or  three 
jurisdictions,  been  decided  not  to  effect  a  surrender  of  the  lease- 
hold.i^^     There  seems,  however,  little  distinction  in  principle  in 

i5oa  See  ante,  §  182  j,  at  note  951.       supposition  that  the  tenancy  was  to 

151  Boyd  V.  George,  2  Neb.  Unoff.  be  regarded  as  at  an  end,  was  re- 
420,  89  N.  W.  271;  Conkling  V.  Tuttle,  garded  as  precluded  from  denying 
52  Mich.  630,  18  N.  W.  391;  Patch-  that  he  had  consented  to  the  terml- 
In's  Ex'r  v.  Dickerman,  31  Vt.  666;    nation  of  the  tenancy. 

Crane  v.  Edwards.  80  App.  Div.  333,  iss  Kelly  v.  Noxon,  64  Hun,  281,  18 

80  N.  Y.  Supp.  747  (semble);  Eimer-  N.  Y.  Supp.  909.     And  see  Morris  v. 

mann   v.   Nathan,   116    Wis.    124,   92  Dayton,  84  N.  Y.  Supp.  392. 

N.  W.  550  (semble).  ib4  Koehler   v.    Scheider,   16   Daly, 

152  Smith  V.  Pendergast,  26  Mmn.  235,  10  N.  Y.  Supp.  101. 

318.  3  N.  W.  978.  In  Browder  "v.  iss  Felker  v.  Richardson,  67  N.  H. 
Phinney,  37  V/ash.  70,  79  Pac.  598,  a  509,  32  Atl.  830;  Whittaker  v.  Bark- 
somewhat  similar  case  on  the  facts,  er,  1  Cromp.  &  M.  113;  Lamar  v.  M'>- 
the  tenant,  having  allowed  the  land-  namee,  10  Gill.  &  J.  (Md.)  116,  32 
lord  to  make   improvements  on  the   Am.  Dec.  152.     But  Stanley  v.  Koehl- 


§  190  BY  OPERATION  OF  LAW.  1343 

this  re^-ard  between  a  request  to  the  tenant  to  quit  and  a  permis- 
sion to  quit,  and,  presumably,  in  these  jurisdictions,  the  tenant 
could  not  assert  a  surrender  even  though  he  yielded  possession  on 
a  demand  therefor. 

d.  New  lea^e  to  third  person.  A  third  mode  of  surrender  by 
operation  of  law  occurs  in  the  case  of  a  new  lease  by  the  landlord 
to  a  third  person,  accompanied  by  the  former  tenant's  relinquish- 
ment of  possession  in  favor  of  such  third  person.  The  question 
whether  such  a  new  lease  and  relinquishment  of  possession  would 
thus  operate  was  at  one  time  the  subject  of  considerable  question 
in  England,i56  i^^t,  by  later  cases  there,  it  seems  to  be  regarded 
as  settled  that,  when  a  tenant  assents  to  the  making  of  a  lease 
to  another,  and  yields  possession  to  the  new  lessee,  there  is  a 
surrender  by  operation  of  law,!^^  the  theory  thereof  being  ex- 
plained as  follows:  "As  far  as  the  landlord  is  concerned,  he  has 
created  an  estate  in  the  new  tenant  which  he  is  estopped  from 
disputing  with  him,  and  which  is  inconsistent  with  the  continuance 
of  the  tenant's  term.  As  far  as  the  new  tenant  is  concerned,  the 
same  is  true.  As  far  as  the  owner  of  the  particular  estate  in 
question  is  concerned,  he  has  been  an  active  party  in  this  transac- 
tion, not  merely  by  consenting  to  the  creation  of  the  new  relation 
between  the  landlord  and  the  new  tenant,  but  by  giving  up  pos- 
session, and  so  enabling  the  new  tenant  to  enter,  "i^s  jn  |;his 
country,  likewise,  it  has  been  stated  that  "an  unconditional  agree- 
ment between  a  landlord  and  a  third  person,  with  the  assent  of 
the  tenant,  during  the  term,  to  rent  the  premises  to  such  third 
person,  followed  by  a  change  of  possession  and  payment  of  rent 
by  the  tenant,  will  amount  to  a  valid  surrender  of  the  old  lease 
and  the  acceptance  thereof  by  the  landlord,  "i59  and  there  are 

er,  1  Hilt.   (N.  Y.)   354,  seems  to  be  Smith's  Leading  Cases  (8th  Am.  Ed. 

contra.     That  the  lessor  by  mistake  p.  784  et  seq.). 

wrote  the  lessee  that  the  lease  would        ist  Nickells  v.  Atherstone   10  Q   B 

expire  a  year  earlier  than  its  actual  944;    Davison  v.  Gent,  1  Hurl.  &  N. 

date  of  expiration   was  held   not  to  744.     The  doctrine  of  these  cases  has 

justify  the  lessee  in  then  relinquish-  been  adopted  in  Canada.     Crocker  v 

ing    possession.      Auer    v.    Hoffman,  Sowden,  33  U.  C.  Q.  B.  397;  Acheson 

132  Wis.  620,  112  N.  W.  1090.  v.  McMurray,  41  U.  C.  Q.  B.*  484. 

156  See  Lyon  V.  Reed,  13  Mees.  &  W.        iss  Per  Denman,  C.  J.,  in  Nickells 

285,   and   the  full   statement   of  the  v.  Atherstone,  10  Q.  B.  944. 
English    cases   in    the   notes    to  the        159  Morgan  v.  McCollister,  110  Ala. 

Duchess    of    Kingston's    Case    in    2  319,  20  So.  54;  Hoerdt  v.  Hahne    91 


1344 


SURRENDER. 


§  190 


eases  applying  such  a  doctrine. ^''o  In  one  state  the  courts  have 
questioned  the  validity  of  such  a  mode  of  surrender,  without, 
however,  positively  deciding  the  question.^^i 

The  requirement  of  relinquishment  of  possession  to  the  new 
lessee  is  ignored  in  a  number  of  cases  in  which  a  surrender  has 
been  regarded  as  resulting  from  the  recognition  by  the  landlord, 
with  the  tenant's  consent,  express  or  implied,  of  a  subtenant  in 
possession  as  his  own  immediate  tenant,  that  is,  from  what  is  in 
effect  the  making  of  a  demise,  with  the  tenant's  consent,  to  the 
subtenant.^ ®2    These  cases  can  be  reconciled  with  the  requirement 


111.  App.  514.  The  statement  was 
quoted  from  Taylor,  Landl.  &  Ten. 
§  509,  where  Whitney  v.  Meyers,  8  N. 
Y.  Super.  Ct.  (1  Duer)  2G6,  is  cited 
as  authority.  In  this  latter  case  it 
is  said  that  if  it  was  agreed  between 
the  lessor,  the  lessee  and  a  third 
person  that  the  former  would  accept 
the  third  person  as  tenant  in  lieu  of 
the  lessee  for  the  residue  of  the  term, 
and  accept  rent  from  him  monthly 
in  advance  instead  of  quarterly,  as 
provided  in  the  lease,  and  if  this 
agreement  was  carried  out  by  the 
former  lessee  yielding  possession  to 
such  third  person,  and  by  the  latter 
taking  possession  and  paying  rent 
accordingly,  and  the  latter  accepting 
rent  from  him,  there  was  a  surren- 
der by  operation  of  law,  citing  Bailey 
V.  Delaplaine,  3  N.  Y.  Super  Ct.  (1 
Sandf.)  5,  where  the  lessor  in  chief 
called  on  the  sublessor  to  pay  the 
rent,  producing  the  sublease  on 
which  was  endorsed  an  order  by  the 
sublessor  to  pay  the  rent  to  the  les- 
sor in  chief,  and  forbade  the  subles- 
see to  pay  any  more  rent  to  the  sub- 
lessor, saying  that  he  had  taken  the 
latter's  place,  and  he  collected  the 
rent  under  the  sublease  accordingly, 
and  this  was  regarded  as  a  surren- 
der of  the  sublease  by  operation  of 
law.  Silva  v.  Bair,  141  Cal.  599,  75 
Pac.  162,  seems  to  involve  a  surren- 


der of  this  character,  though  the 
court  speaks  of  a  rescission  of  the 
lease. 

160  Dills  V.  Stobie,  81  111.  202;  Wil- 
liams v.  Vanderbilt,  145  111.  238,  34 
N.  E.  476,  21  L.  R.  A.  489,  36  Am. 
St.  Rep.  486;  Amory  v,  Kannoffsky, 
117  Mass.  351,  19  Am.  Rep.  416; 
Commercial  Hotel  Co.  v.  Brill,  123 
Wis.  638,  101  N.  W.  1101   (semble). 

In  Number  121  Madison  Ave.  v. 
Osgood,  44  N.  Y.  St.  Rep.  489,  18  N. 
Y.  Supp.  126,  the  tenant  of  a  flat, 
whose  lease  terminated  in  the  fall, 
but  who  had  a  right  of  renewal,  was 
told  by  the  landlord  that  the  latter 
could  lease  it  to  another  for  the 
summer  months  and  for  several 
years  longer  if  the  tenant  would  re- 
linquish the  right  of  renewal,  and 
this  the  tenant  consented  to  do,  de- 
siring to  be  rid  of  the  rent  for  the 
summer  months.  Thereupon  the 
landlord  did  ler.se  to  another,  but 
only  from  the  fall.  It  was  held  that 
an  agreement  by  the  landlord  to 
terminate  the  tenancy  at  the  com- 
mencement of  the  summer,  relieving 
the  tenant  from  rent  for  the  summer 
months,  could  be  inferred.  The  the- 
ory of  the  decision  does  not  appear. 

iGi  See  Hunt  v.  Gardner,  39  N.  J. 
Law,  533;  Decker  v.  Hartshorn,  60 
N.  J.  Law,  548,  38  Atl.  678. 

182  Stimmel   v.  Waters,  65  Ky.    (2 


§  190  BY  OPERATION  OF  LAW.  1345 

that  the  new  lease  to  a  third  person  must  be  accompanied  by  a 
transfer  of  possession,  only  on  the  theory  that  the  transfer  of  pos- 
session may  be  prior  to  such  lease,  and  may  be  made  without  any 
reference  thereto.  There  is  at  least  one  decision  in  which,  even 
though  the  new  lease  was  to  a  person  not  a  subtenant,  the  necessity 
of  a  transfer  of  possession  was  apparently  not  recognized,^ ^' 
though  a  later  case  in  the  same  jurisdiction  seems  to  be  to  the  effect 
that  such  transfer  is  necessary.^^^  In  a  quite  recent  English  case 
it  is  explicitly  decided  that  an  actual  change  of  possession  is  nec- 
essary in  order  that  a  new  lease  to  a  third  person  may  result  in  a 
surrender,  and  that  a  mere  oral  assent  by  the  tenant  to  a  lease  made 
to  another,  without  any  relinquishment  of  possession,  is  insufficient 
for  this  purpose,  although  the  lease  is  actually  made,  it  being  re- 
marked that  the  contrary  view  "would  be  a  most  dangerous  doc- 
trine; it  would  practically  amount  to  a  repeal  of  the  Statute  of 
Frauds.  "165 

That  the  landlord  accepts  the  payment  of  rent  from  the  subten- 
ant does  not  of  itself  establish  a  new  demise  to  the  latter.^'^e  g^^  j^ 
has  been  decided  that  there  was  a  surrender  of  the  leasehold  creat- 
ed by  the  original  lease  when  the  tenant  told  the  landlord  that 
if  the  latter  accepted  rent  from  the  subtenant  he  must  release  him, 

Bush)  282;  Snyder  v.  Parker,  75  Mo.  Cook,   2  Barn.  &  Aid.   119,  supra,  a 

App.  529;  Bailey  v.  Delaplaine,  3  N.  change  of  possession,  "the  old  tenant 

Y.  Super.  Ct.   (1  Sandf.)   5;   Dills  v.  having  gone  out  of  possession  when 

Stobie,  81  III.  202  (semble);   Amory  the  head  landlord  accepted  the  sub- 

V.  Kanoffsky,  117  Mass.  351,  19  Am.  tenant   as   his   tenant."     The   report 

Rep.  416;    Thomas  v.  Cook,  2  Barn,  of  the  earlier  case  says  nothing  with 

&  Aid.  119.  reference  to  a  change  of  possession. 

163  Logan    V.    Anderson,    2    Doug.        lee  Decker  v.  Hartshorn,  60  N.  J. 

(Mich.)  101.     In  Donkersley  v.  Levy,  Law,  548,  38  Atl.  678;  Lovejoy  v.  Mc- 

38  Mich.  54,  31  Am.  Rep.  301,  it  was  Carty,   94  Wis.   341,  68  N.  W.  1003; 

decided  that  where  the  lessor  made  Holman  v.  De  Lin-River-Finley  Co., 

a  new  lease  to  a  third  person  which  30    Or.    428,   47   Pac.    708T  ^acon   v. 

the  latter   accepted,   and   the   latter  Brown,  9  Conn.  334,  23  Am.  Dec.  358; 

then  subleased   to  the  prior  tenant.  Ballou  v.  Baxter,  28  N.  Y.  St.  Rep. 

the  previous  lease  was  surrendered  431,  8  N.  Y.  Supp.  15;  Bless  v.  Jen- 

by  operation  of  law.  kins,  129  Mo.  647,  31  S.  W.  938;  Doe 

16*  Fish    V.    Thompson,    129    Mich.  d.  Hull  v.  Wood,  14  Mees.  &  W.  682. 

313,  88  N.  W.  896.  See  Cuesta  v.  Goldsmith,  1  Ga.  App. 

i65Wallis  V.   Hands    [1893]    2   Ch.  48,  57   S.  E.  9S3;    Americus  Mfg.   & 

75,  per  Chitty,  J.     In  this  case  it  is  Tmn.   Co.   v.   Hightower,   3  Ga.  App. 

said  that  there  was,   in  Thomas  v.  65,  59  S.  E.  309. 

L.  and  Ten.  85. 


1346  SURRENDER.  §  jqq 

the  tenant,  and,  the  landlord  having  stated  that  he  would  continue 
to  take  rent  from  the  subtenant,  and  that  the  tenant  could  give  up 
nis  lease,  the  tenant  thereupon  delivered  his  written  instrument 
of  lease  to  the  landlord,  who  receipted  therefor,  and  thereafter 
was  paid  his  rent  by  the  former  subtenant.i^?  ^  surrender  was 
also  regarded  as  shown  by  the  fact  that,  the  original  lessor  having 
produced  the  sublease,  on  which  was  endorsed  an  order  by  the 
sublessor  on  the  subtenant  to  pay  the  rent  to  the  lessor,  dema-nded 
that  the  subtenant  pay  the  rent  to  him,  and  it  was  so  paid  as  it 
became  due.^^^ 

In  a  leading  English  case  on  this  branch  of  the  law,i69  in  which 
it  was  decided  that,  when  a  subtenant  in  possession  is,  with  the 
assent  of  the  tenant,  accepted  by  the  chief  landlord  as  his  tenant, 
there  is  a  surrender  by  operation  of  law  of  the  tenant's  interest, 
the  question  whether  the  original  tenant  assented  to  the  accept- 
a.nce  of  the  subtenant  as  tenant  in  his  place  was  left  to 
the  jury,  and  a  finding  of  such  assent  was  regarded  as  justified, 
on  the  ground  that  such  assent  vras  clearly  for  his  benefit,  pre- 
sumably because  he  was  thereby  relieved  from  his  liability  for 
rent.  In  another  case  it  was  decided  that  the  prior  tenant 's  assent 
to  the  making  of  a  new  demise,  to  one  to  whom  he  had  previously 
transferred  the  possession  of  the  premises,  might  be  inferred  from 
the  possession  of  the  original  instrument  of  lease  by  the  latter, 
or  from  the  landlord's  possession  of  such  instrument  in  a  cancel- 
ed condition,  this  being  in  accordance  with  the  usage  of  the  land- 
lord in  case  of  the  renewal  of  a  lease.i^o 

There  is,  in  one  state,  apparently  a  decision  that  the  making 
of  a  lease  by  the  landlord  to  a  third  person,  even  without  the 
consent  of  the  tenant,  express  or  implied,  effects  a  surrender.i^i 
Such  a  view  appears  most  questionable.i'^2 

167  Amory  v.  Kannofesky,  117  Mass.  172  The  word  "surrender"  is  not 
351,  19  Am.  Rep.  416.  used,  it  being  merely  said,  without 

168  Bailey  v.  Delaplaine,  3  N.  Y.  any  discussion,  that  the  effect  of  the 
Super.  Ct.  (1  Sandf.)  5.  new  lease  was  "to  release  the  plain- 

109  Davison  v.  Gent,  1  Hurl.  &  N.  tiff  from  all  further  obligations  un- 

744.  der  his  lease,"  but  the  case  is  cited 

170  Walker  v.  Richardson,  2  Mees.  under  the  head  of  "surrender"  by 
&  W.  882.  Judge   McAdam,    who    delivered    the 

171  Hav;rthorne  v.  Coursen,  18  Misc.  opinion,  in  his  work  on  "Landlord  & 
447,  41  N.  Y.  Supp.  995.  Tenant"  (3d  Ed.  p.  1286). 


.  ^QQ  BY  OPERATION  OF  LAW.  1347 

In  an  English  case^"  it  was  decided  that  where  the  tenants  of 
two  distinct  tracts  of  land  under  different  landlords  agreed  to 
exchange  their  holdings,  and,  some  days  thereafter,  a  person  who 
represented  both  landlords  assented  to  the  transaction,  there  was 
a  surrender  of  each  holding  by  operation  of  law. 

There  is  one  decision  that  the  new  lease,  in  order  to  effect  a  sur- 
render, must  be  valid  so  as  to  convey  to  the  lessee  the  interest 
^vhich  it  professes  to  convey,i^^  thus  applying  to  a  surrender,  re- 
sulting from  a  demise  to  a  third  person  accompanied  by  a  change 
of  possession,  the  rule  which  is  applied  in  the  case  of  a  surrender 
by  reason  of  a  new  lease  to  the  tenant.  This  view  seems,  however, 
questionable,  since  the  reason  for  applying  the  rule  m  the  latter 
case  the  protection  of  the  tenant  from  the  possibility  of  losing  a 
valuable  leasehold  in  exchange  for  one  of  little  value,  is  not 
existent  in  the  former  case,  where  the  tenant  expects  nothing 
under  the  new  demise,  and  is  not  ordinarily  concerned  m  the 
degree  of  benefit  accruing  to  the  new  lessee  thereunder.^^s 

Even  though  the  new  lease  is  absolutely  void,  the  new  lessee, 
being  in  possession  by  the  consent  of  the  landlord,  is  at  least  a 
tenant  at  will,  and  this  would  seem  to  be  sufficient  to  effect  a  sur- 
render of  the  previous  leasehold. 

That  the  landlord's  consent  to  a  substitution  of  another  lessee 

173  Bess  V.  Williams.  2  Cromp.  M.  i"  In  Smith  v.  Niver,  2  Barb.  (N. 
^  ^    5g^  Y.)   180,  47  Am.  Dec.  305,  it  is  said 

In  Prettvman  v.  Hartly,  77  111.  265,  by  Harris,  P.  J..  "It  has  never,  I  ap- 
the  fact  that  a  tenant  exchanged  a  prebend,  been  decided  that  a  lessor 
portion  of  the  land  leased  to  him  who  has  consented  to  a  change  of 
for  a  like  portion  leased  by  the  same  tenancy,  and  permitted  a  change  of 
landlord  to  another,  he  to  pay,  how-  occupation,  and  received  rent  from 
ever  a  different  rent  for  the  land  so  the  new  tenant  as  an  original  and 
takek  from  that  paid  for  the  land  not  as  a  subtenant,  can  afterwards 
exchanged,  was  apparently  regarded  charge  the  original  tenant  for  rent 
as  taking  each  portion  from  out  the  accruing  during  the  occupation  or 
operation  of  the  lease  in  which  it  the  new  tenant.  If  the  case  of 
was  included,  and  as  subjecting  it  to  Schieffelin  v.  Carpenter  (15  Wend. 
a  verbal  lease  similar  to  the  original  [N.  Y.]  400)  is  to  be  regarded  as  an 
lease  to  the  person  to  whom  it  was  authority  maintaining  this  position, 
transferred  I  t^i^^  ^^  ^^  ^°  ^^^^  respect  wholly 

174  Schieffelin  v.  Carpenter,  15  unsupported  either  by  principle  or 
Wend  (N  Y)  400.  Here  the  sec-  adjudged  cases.  The  landlord  can- 
ond  lease  was  invalid  under  the  stat-  not  at  the  same  time  have  two  orig- 
ute  of  frauds.  This  decision  is  cited  inal  tenants  holding  under  distinct, 
approvingly  in  Whitney  v.  Meyers,  8  independent  leases." 
N.  Y.  Super.  Ct.  (1  Duer)   266. 


1348 


SURRENDER. 


§191 


was  obtained  by  fraud  has  been  held  to  vitiate  the  surrender,  and 
to  leave  the  former  liable  for  rent  as  before.^'^^ 

The  new  lease  to  a  third  party  may,  it  has  been  recognized,  be  by 
an  agent  acting  for  the  landlord.^'^'^  There  is  a  decision,  however, 
that  an  agent  authorized  to  lease  premises  and  collect  rents  has 
no  authority  to  consent  to  a  "substitution  of  tenants. "^^^  This 
seems  questionable. 

§  191.    Effect  of  surrender. 

a.  As  between  the  parties.  A  surrender  by  the  tenant  has  the 
effect  of  terminating  all  his  interest  under  the  lease,  since 
the  interest  is  thereby  transferred  to  the  landlord.^ '^^  And, 
furthermore,  it  terminates  all  future  liability  under  the  covenants 
of  the  lease,^^*^  the  most  ordinary  application  of  this  principle 


170  Bruce  v.  Ruler,  2  Man.  &  R.  3. 

177  See  Bess  v.  Williams,  2  Cromp. 
M.  &  R.  581;  Amory  v.  Kannoffskj-, 
117  Mass.  351,  19  Am.  Rep.  416. 

178  Wallace  v.  Dinniny,  11  Misc. 
317,  32  N.  Y.  Supp.  159. 

179  Co.  Litt.  §  338  b;  Bain  v.  Clark, 
10  Johns  (N.  Y.)  424;  Harris  v.  His- 
cock,  91  N.  Y.  340;  Appeal  of  Grei- 
der,  5  Pa.  422,  47  Am.  Dec.  413;  Ter- 
stegge  V.  First  German  Mut.  Benev. 
Soc,  92  Ind.  82,  47  Am.  Rep.  135; 
Deane  v.  Caldwell,  127  Mass.  242. 

180  Piatt,  Covenants,  585;  Ameri- 
can Bonding  Co.  v.  Pueblo  Inv.  Co. 
(C.  C.  A.)  150  Fed.  17,  9  L.  R.  A. 
(N.  S.)  557;  Deane  v.  Caldwell,  127 
Mass.  242;  Snowhill  v.  Reed,  49  N. 
J.  Law,  292,  10  Atl.  737,  60  Am.  Rep. 
615.  See  Herrman  v.  Laemmle,  56 
Misc.  549,  107  N.  Y.  Supp.  73. 

In  Hunt  V.  Gardner,  39  N.  J.  Law, 
530,  Beasley,  C.  J.,  says:  "The  au- 
thorities are  not  clear  with  regard  to 
the  operation  of  a  surrender  in  law 
on  the  lease  and  its  covenants,  but 
I  think  it  is  sufficiently  indicated 
that  such  operation  destroys  the 
privity  of  contract  between  the  les- 
sor and  lessee,  as  well  as  the  priv- 
ity of  estate;"  and  after  referring 
to  two  cases  as  supporting  that  view 


proceeds.  "Although,  perhaps,  the 
point  is  not  directly  decided  in  any 
Enjrlish  case,  the  tenor  of  the  judi- 
cial language  in  all  the  important 
decisions  on  the  subject  of  a  sur- 
render by  act  of  the  law  have  a  sim- 
ilar tendency."  If  the  question  could 
have  been  regarded  as  doubtful  at 
that  time  (1877),  it  may  now  be  re- 
garded as  settled  by  the  numerous 
cases  denying  recovery  for  rent  after 
such  a  surrender.  See  authorities 
cited  ante,  §  182  g.  In  no  other  case 
has  it  been  suggested  that  the  effect 
of  a  surrender  by  operation  of  law 
might  be  different  from  that  of  an 
express  surrender. 

Since  the  interest  of  the  tenant  is 
terminated  by  the  surrender,  he  can- 
not, when  sued  on  notes  given  by 
him  in  consideration  of  the  lessor's 
acceptance  of  a  surrender,  assert  in 
defense  that  the  lease  provided  for 
an  abatement  of  rent  if  the  premises 
were  destroyed  by  fire  and  that  they 
were  so  destroyed  before  the  matur- 
ity of  the  notes.  Brooks  v.  Cutter, 
119  Mass.  132.  But  it  has  been  held 
to  be  a  good  defense,  at  least  In  part, 
to  a  suit  by  a  tenant  against  the 
landlord  for  a  sum  agreed  to  be  paid 
by  the  latter  for  giving  up  the  prem- 


c  jgj  EFFECT.  1349 

occurring  in  the  case  of  a  covenant  to  pay  rent,  which  ceases  to  be 
effective  after  a  surrender.^"  The  surrender  does  not  ordinarily 
affect  liabilities  which  have  already  accrued,i82  such  as  that  for 
past  due  r&nt.^^^-iss 

Since  a  surrender  divests  all  property  rights  of  the  tenant  in 
the  land,  he  cannot  thereafter  assert  any  claim  to  growing  crops 
as  against  the  landlord.iss  gut  crops  which  have  been  cut,  like 
other  personal  chattels  which  are  ov.  the  premises  but  not  a  part 
thereof,  still  remain  the  property  of  the  tenant.^^^ 

b.  As  against  third  persons.  Lord  Coke,  after  noticing  that  as 
between  the  parties  to  a  surrender  the  estate  is  absolutely 
"drowned,"  says:  "But  having  regard  to  strangers,  who  were 
not  parties  or  privies  thereunto,  lest  by  a  voluntary  surrender 
they  may  receive  prejudice  touching  any  right  or  interest  they 
had  before  the  surrender,  the  estate  surrendered  hath,  in  con- 
sideratio.n  of  law,  a  continuance,  "i^s  And  this  doctrine,  that  a 
surrender  does  not  divest  the  rights  of  persons  not  parties  thereto, 
has  been  generally  recognized.i^^^     So  it  has  been  held  that  a 

Ises  to  him,  that  the  lessee,  in  leav-  ante,  §  109  b  (1),  at  notes  771-773. 

ing,  removed  parts  of  the  buildings,  iss.iss  See  ante,  §  182  g,  at  notes 

since    such   an   agreement   imported  895,  896. 

that  the  premises  were  to  be  left  in  ise  See  post,  §  251  c  (4). 

substantially  the  condition  in  which  is?  Griswold  v.  Morse,  59  N.  Y.  211 

they  were  at  the  time  of  the  agree-  (semble). 

ment.     Dowing  v.   DeKlyn,  1  E.  D.  iss  Co.  Litt.  338  b.     He  goes  on  to 

Smith  (N.  Y.)   563.  give  various  instances,  among  which 

181  See  ante,  §  182  g.  he  mentions  "If  tenant  for  life  grant 
The   landlord,  having   accepted   a  a  rent  charge,  and  after  surrender, 

surrender,    cannot    recover    for    the  yet  the  rent  remaineth."     See,  also, 

cost  of  improvements  made  by  him  Doe  d.  Beadon  v.  Pyke,  5  Maule  & 

for  which  he  expected  to  be  compen-  S.  146. 

sated    by    the    rents.       Welcome    v.        issa  in  Doscher  v.  Shaw,  52  N.  Y. 

Hess,  90  Cal.  507,  27  Pac.  369,  25  Am.  602,  the  tenant  having  made  a  sub- 

St.  Rep.  145.  lease   for   five   years    for   a   purposo 

182  Bro.  Abr.,  Surrender,  pi.  24;  prohibited  by  the  original  lease,  the 
Sperry  v.  Miller,  16  N.  Y.  407;  Mc-  landlord  gave  the  subtenant  a  writ- 
Gregor  v.  Board  of  Education,  107  ten  license  to  use  the  premises  for 
N.  Y.  511,  14  N.  E.  420;  Cohen  v.  this  purpose  "for  and  during  the  said 
Witteman,  100  App.  Div.  338,  91  N.  period"  in  consideration  of  a  yearly 
y.  Supp.  439.  But  see  Geddis  v.  Fol-  sum  to  be  paid  to  him,  and  it  was 
liett,  16  S.  D.  610,  94  N.  W.  431,  ap-  held  that  the  fact  that  the  sublessee 
parently  to  the  contrary.  As  to  the  afterwards  surrendered  his  sublease 
effect  of  a  surrender  upon  liability  did  not  affect  his  continuing  liabil- 
for  waste  previously  committed,  see  ity  under  his  contract.    The  decision 


1350  SURRENDER.  §  191 

tenant,  after  mortgaging  his  leasehold  interest,i89  or  after  a  lien 
in  favor  of  another  has  otherwise  arisen  on  such  interest,!^^ 
cannot,  by  surrendering  his  interest,  affect  the  rights  of  the 
lienor.  And  the  right  of  one,  to  whom  the  tenant  has  sold  or 
mortgaged  removable  fixtures,  to  remove  them,  is  not  affected  by 
a  surrender  of  the  leasehold,  though  this  is  sufficient  to  terminate 
the  right  of  removal  as  against  the  tenant.^^^  But  where  a  vendee 
or  mortgagee  of  crops  growing  on  the  premises  asserted  the  in- 
validity of  a  surrender  as  against  him,  it  was  apparently  held  that 
his  rights  were  subject  to  the  right  which  the  landlord  would 
have  had,  if  there  had  been  no  surrender,  to  distrain  his  crops 
for  rent,^^2  jn  other  words,  that  he  could  not  assert  at  the  same 
time  that  the  surrender  was  valid  and  invalid. 

It  has  been  decided  in  England  that,  if  the  lessor  transfers  the 
reversion,  reserving  the  rent,  the  lessee  may  surrender  the  lease- 
hold to  the  holder  of  the  reversion  and  thereby  destroy  the  right 
to  rent.^'^^  This  is  based  on  the  theory  that  otherwise  the  lessee 
would  be  deprived  of  his  right  to  surrender  by  an  agreement  to 
which  he  was  not  a  party,  and  the  analogy  was  suggested  of  a 
building  contract,  the  parties  to  which  would  not  be  precluded 
from  rescinding  it  by  the  fact  that  the  builder  has  assigned  to 
another  his  right  to  the  money  to  be  received  thereunder.  In 
this  country,  on  the  other  hand,  it  has  in  one  case  been  decided 
that  the  assignee  of  the  rent  without  the  reversion  cannot  be 
affected  by  a  surrender  made  by  the  lessee,  if  the  latter  has  at  the 
time  notice  of  the  assignment  of  the  rent.^^^  In  this  last  case 
it  is  said  that  the  landlord,  accepting  a  surrender,  valid  as  against 

here,  however,  was  based  upon  the  der.     See  Dobschuetz  v.  Holliday,  82 

construction  of  the  contract,  and  not  111.  371,  supra. 

upon  the  doctrine  referred  to  in  the  isi  London    &    Westminster    Loan 

text.  &  Discount  Co.  v.  Drake,  6  C.  B.  (N. 

189  Firth  V.  Rowe,  53  N.  J.  Eq.  520,  S.)  798;  Saint  v.  Pilley,  L.  R.  10 
32  Atl.  1064;  Allen  v.  Brown,  60  Exch.  137;  Adams  v.  Goddard,  48 
Barb.   (N.  Y.)   39.  Me.  212. 

190  Dobschuetz  v.  Holliday,  82  111.  192  Clements  v.  Matthews,  11  Q.  B. 
371    (mechanic's    lien).     So    it    was  Div.  808. 

held  in  Farnum  v.  Hefner,  79  Cal.  193  Southwell  v.  Scotter,  49  Law  J. 
575,  21  Pac.  955,  12  Am.  St.  Rep.  174,  Q.  B.  356.  Compare  Wood  v.  Lon- 
that  the  lien  of  an  execution  on  the  donderry,  10  Beav.  465. 
leasehold  could  not  be  affected  by  the  194  Wittmann  v.  Watry,  45  Wis. 
tenant's  assent  to  a  forfeiture  in  491.  There  is  no  discussion,  and 
favor  of  his  landlord.  Such  assent  merely  a  reference  to  1  Parsons,  Con- 
to  a  forfeiture  is  in  effect  a  surren-  tracts,  c.   10,   §   7,  pi.  6,  which  the 


5  191  EFFECT.  1351 

the  assignee  of  the  rent,  would  be  liable  in  damages  to  the  lat- 
ter.195 

The  rule  that  a  surrender  shall  not  affect  the  rights  of  fhird 
persons  receives  its  most  frequent  application  in  favor  of  a  sub- 
lessee. Thus,  a  surrender  by  a  tenant  to  his  landlord  does  not 
affect  the  subtenant's  right  of  possession,  but  the  chief  landlord, 
the  surrenderee,  becomes,  in  favor  of  the  subtenant,  the  latter 's 
landlord,  with  no  other  or  greater  rights  to  possession  than  be- 
longed to  the  tenant  in  chief,  the  surrenderor.i^^  Accordingly, 
one  holding  under  a  sublease  from  year  to  year  is  entitled  to  the 
ordinary  notice  required  to  terminate  such  a  tenancy,  before  dis- 
possession by  the  landlord,  to  whom  the  sublessor  has  surrendered, 
and  notice  merely  of  the  surrender  is  not  sufficient  for  this  pur- 
pose.i^"^  In  accordance  with  the  same  doctrine  a  sublessee  cannot, 
by  a  surrender  by  the  lessee,  be  deprived  of  the  benefit  of  a  cov- 
enant of  the  sublease.  So  it  was  decided  that,  where  a  lessee 
covenanted  with  a  sublessee  of  part  of  the  premises  leased  to 
him,  to  perform  all  the  covenants  of  the  original  lease,  he  could 
not,  by  taking  a  new  lease  after  making  the  sublease,  avoid  the 
effect  of  a  covenant  of  the  original  lease  restricting  his  right  to 
build  on  a  part  of  the  premises  not  subleased.^^^  And  the  sub- 
lessee 's  rights  as  to  fixtures  and  improvements  are  not  affected  by 
the  surrender.1^9  Likewise  it  has  been  decided  that  if  a  sublessee 
remains  in  possession  after  a  surrender  by  his  landlord  to  the 
head  landlord,  his  chattels  cannot  be  subjected  to  a  distress  made 

present  writer  is  unable  to  locate  In  Am.  Rep.  212;  Hessel  v.  Johnson,  129 

that  work.  Pa.  173,  18  Atl.  754,  5  L.  R.  A.  851,  15 

195  In  Southwell  v.  Scotter,  49  Law  Am.  St.  Rep.  716;  Cuschner  v.  West- 

J.   Q.    B.   356,   the   judges   refuse  to  lake,  43  Wash.  690,  86  Pac.  948.     The 

consider  this  question.  subtenant  being  thus  entitled  to  re- 

loe  Pike  v.  Eyre,  9  Barn.  &  C.  909;  main  in  possession,  the  landlord  can 

Mitchell  V.  Young,  80  Ark.  441,  97  S.  obviously  not  demand  an   increased 

W.  454,  7  L.  R.  A.    (N.  S.)    221,  17  rent  as  the  price  of  allowing  him  to 

Am.  St.  Rep.  89;  Eten  v.  Luyster,  60  remain.     Ritzier  v.  Raether,  10  Daly 

N.   Y.    252;    Weiss  v.  Mendelson,   24  (N.  Y.)   286. 

Misc.  692,  53  N.  Y.   Supp.  803;    Mc-  ist  Mellor  v.  Watkins,  L.  R.  9  Q.  B. 

Kenzie  v.  City  of  Lexington,  34  Ky.  400;    Pleasant   v.    Benson,   14    East, 

(4  Dana)  129;  Krider  v.  Ramsay,  79  234. 

N.    C.    354;    Moskowitz   v.    Diringen,  i98  piggott  v.   Stratton,  1  De  Gex, 

48    Misc.   543,    96    N.   Y.    Supp.    173;  F.  &  J.  33. 

Oshinsky  v.  Greenberg,  39  Misc.  342,  199  Morrison  v.  Sohu,  90  Mo.  App. 

79  N.  Y.  Supp.  853;    Pratt  v.  H.  M.  76. 
Richards  Jewelry  Co.,   69   Pa.   53,  8 


j^352  SURRENDER.  ■         §  191 

by  the  latter  for  the  collection  of  rent  from  one  to  whom  the 
head  landlord  leased  after  the  surrender.^^^^ 

At  common  law  the  doctrine  obtained  that  if  a  lessee  for  years, 
who  had  sublet  for  a  less  term,  surrendered  his  term  to  the  land- 
lord, his  estate  being  gone,  the  reversion  on  the  under  lease  was  no 
longer  in  existence,  and  the  subtenant  was  regarded  as  relieved 
from  liability  on  the  covenants  of  the  sublease.  This  doctrine, 
which  is  elsewhere  co.nsidered,2oo  was  changed  in  England  by 
statute,  so  far  as  concerns  a  surrender  made  for  the  purpose  of 
obtaining  a  renewal  of  the  lease,^^^  the  effect  of  the  statute  being 
to  place  the  person,  to  whom  the  new  lease  is  granted  by  the  head 
landlord,  in  the  position  of  a  transferee  of  the  subreversion.202 
And  such  was  apparently  held  to  be  the  case  in  one  state  in  this 
country,  without  reference  to  the  statute,  the  doctrine  of  the 
merger  of  the  subreversion  being  regarded  as  inapplicable  as 
being  contrary  to  the  intention  of  the  parties.^o^ 

There  is  a  decision  to  the  effect  that  if,  after  surrender  by  the 
tenant,  he  collects,  as  the  landlord's  agent,  rent  subsequently 
accruing  under  the  sublease,  a  periodic  tenancy  is  created  as 
between  the  subtenant  and  the  head  landlord.^o^ 

A  surrender  by  the  tenant  is  not  effective,  as  against  his  sub- 
tena.nt,  merely  because  the  landlord,  instead  of  taking  a  surren- 
der, might  have  enforced  a  forfeiture  against  the  tenant  for  breach 
of  condition,  the  effect  of  which  would  have  been  to  terminate 
all  rights  of  the  subtenant.^o^  And  so  the  fact  that  the  sublease 
was  in  violation  of  a  covenant  or  co.ndition  in  the  original  lease 
against  subletting  is,  it  seems,  immaterial  in  this  regard,  since  the 
sublease  is  nevertheless  valid.^o^ 

One  who  accepts  possession  from  his  lessee  by  way  of  surrender, 
not  knowing  that  the  latter  has  previously  accepted  a  lease  of 
the  premises  from  another,  does  not,  it  has  been  decided,  become 
tenant  of  that  other  as  being  the  lessee's  successor  in  interest.^o^ 

199a  Hessel  v.  Johnson,  129  Pa.  173,        204  Simmons    v.    Pope,    84    N.    Y. 
18  Atl.  754,  5  L.  R.  A.  851,  15  Am.    Supp.  973. 
St.  Rep.  716.  205  Great  Western  R.  Co.  v.  Smith, 

200  See  ante,  §  12  g  (11).  2  Ch.  Div.  235,  afd.  3  App.  Cas.  165. 

201  4  Geo.  2,  c.  28,  §  6.  ,,,  g^^  B^.^^^  ^    ^^^^^^^  4  p^jj^ 

202  Cousins  V.  Phillips,   3   Hurl.  & 
C.  892. 

203  Hessel  v.  Johnson,  129  Pa.  173, 
18  Atl.   754,   5  L.  R.  A.  851,  15  Am 


(Pa.)  71;  Shermer  v.  Paciello,  161 
Pa.  691,  28  Atl.  995.  See  ante,  §  152 
j    (2). 


9t  Rep   716  ^**^  Freeman  v.  Ogden,  40  N.  Y.  105. 


CHAPTER  XIX. 

FORFEITURE  OF   THE   LEASEHOLD. 

192.  By  disclaimer  of  tenancy. 

193.  Under  statute. 

a.  For  breach  of  stipulation  of  lease. 

b.  For  illegal  use  of  premises. 

c.  On  desertion  of  premises. 

d.  For  improper  use  of  premises. 

194.  Under  express  condition  subsequent. 

a.  General  considerations. 

b.  Condition   distinguished  from  covenant. 

c.  Condition    distinguished    from    limitation. 

d.  Forfeiture  dependent  on  landlord's  election. 

e.  Conditions  against  particular  acts. 

(1)  Nonpayment  of  rent. 

(2)  Nonpayment  of  taxes. 

(3)  Failure  to  repair. 

(4)  Assignment  and  subletting. 

(5)  Bankruptcy. 

(6)  Use  and  care  of  the  premises. 

(7)  Abandonment  of  the  premises. 

f.  Demand  of  rent. 

(1)  Necessity  at  common  law. 

(2)  Statutory  modification  of  reaulrement. 

g.  By  whom  forfeiture  may  be  asserted. 

h.     Against  whom  forfeiture  may  be  asserted. 
i.      Waiver  of  right  to  assert  forfeiture. 

(1)  Recognition  of  tenancy  as  still  existent. 

(a)  General    considerations. 

(b)  Acceptance  of  rent. 

(c)  Assertion  of  claim  for  rent. 

(d)  Action  against  tenant. 

(e)  Notice  to  tenant. 

(f)  Language  recognizing   tenancy. 

(g)  Distress. 

(2)  Delay  in  assertion  of  forfeiture. 

(3)  Acts  inducing  breach  of  condition. 

(4)  Continuing  and  recurring  breaches. 


;1354  FORFEITURE  OF  LEASEHOLD.  §  192 

j.     Assertion  and  enforcement  of  forfeiture, 
k.     Effect  of  enforcement  of  forfeiture. 
1.     Relief  against  forfeiture. 

(1)  General  rule 

(2)  Fraud,  mistake,  accident  and  surprise. 

(3)  Nonpayment  of  money. 

(4)  Persons  in  favor  of  and  against  whom  relief  given. 

§  192.    By  disclaimer  of  tenancy. 

At  common  law,  the  tenant  of  a  particular  estate,  by  an  asser- 
tion of  record  that  the  fee  was  in  a  stranger,  or  in  himself,  for- 
feited his  estate,  and  the  case  was  the  same,  it  seems,  when  a  ten- 
ant for  years  asserted  of  record  a  right  to  a  freehold  estate,  either 
by  way  of  action  or  defense.^  Likewise,  at  common  law,  a  ten- 
ant forfeited  his  estate  if  he  made  a  tortious  alienation,  that  is, 
if  by  feoffment,  fine  or  recovery,  he  undertook  to  convey  an  in- 
terest of  greater  duration  than  that  to  which  he  was  entitled, 
this  involving  a  repudiation  of  the  tenancy  and  derogating  from 
the  rights  of  the  reversioner.^  A  tortious  alienation,  in  the  com- 
mon-law sense,  never  occurs  at  the  present  time,  a  conveyance  by 
grant  or  under  the  Statute  of  Uses  conveying  only  such  an  es- 
tate as  the  grantor  has,^  and  it  being  expressly  provided  in  a 
number  of  states  that  this  shall  be  the  effect  of  a  conveyance  in 
every  case.* 

As  regards  a  forfeiture  by  the  tenant's  assertion  that  the  free- 
hold is  in  himself  or  in  a  third  person,  many  courts  in  this  country 
have  gone  even  beyond  the  doctrine  stated  in  the  older  books, 
they  holding,  or  appearing  to  hold,  that  the  assertion  of  an  ad- 
verse title  in  the  tenant  or  in  a  third  person,  that  is,  a  denial  of 
the  existence  of  the  relation  of  tenancy  between  the  tenant  and 
the  landlord,  will  effect  a  forfeiture  of  the  tenant's  estate,  with- 
out reference  to  how  such  assertion  is  made,  that  is,  whether 
made  by  record,  in  writing,  or  verbally ,5  and  that  in  such  case 

iCo.  Litt.  251  b;  Bac.  Abr.,  Estate  Kent's  Comm.  106.  See  Worthing- 
for  Life  (C) ;  Leases  (T  2).  ton  v.  Lee,  61  Md.  530;  GrifRn  v.  Fel- 

2  Litt.    §    415;    Co.   Litt.    251   b;    2    lows,  81  Pa.  114. 

Blackst.  Comm.  274;    1  Hayes,  Con-  <  See   1   Stimson,  Am.   St.  Law,  § 

veyancing,  28.  1402   B;    4   Kent's  Comm.   83;    cases 

3  Co.  Litt.  332  a;  2  Sanders,  Uses  cited  1  Tiffany,  Real  Prop.  §  32,  note 
&  Trusts  (5th  Ed.)  51,  64,  77;  Hood-  105. 

eve,  Real  Prop.  (3d  Ed.)  7;  3  Green-        b  peyton  v.  Stith,  30  U.  S.  (5  Pet.) 
leaf's  Cruise,  tit.   32,  c.  12,  §  28;    4    485;    Woodward  v.  Brown,  38  U.  S 


§  192 


BY  DISCLAIMER  OF  TENANCY. 


1355 


the  landlord  may  recover  possession  without  having  given  any 
notice  to  quit.''  This  view  has  been,  in  terms,  based  upon  the 
theory  that  an  assertion  of  an  adverse  title  by  the  tenant  has  the 
effect  of  rendering  his  possession  adverse  to  the  landlord,  thereby 
starting  the  running  of  the  statute  of  limitations  against  the 
latter,  and  that  the  statute  cannot  begin  to  run  unless  the  landlord 
has  an  immediate  right  of  action  to  recover  possession^  In  two 
or  three  jurisdictions,  on  the  other  hand,  the  courts  have  appar- 
ently adopted  the  common-law  rule  that,  in  order  to  work  a  for- 
feiture, the  disclaimer  must  be  by  record,  and  that  a  disclaimer,  or 
assertion  of  title  in  another,  if  in  pais,  will  not  have  that  effect.^ 


(13  Pet.)  1;  Walden  v.  Bodley,  39  U. 
S.  (14  Pet.)  156;  WaUace  v.  Ocean 
Grove  Camp  Meeting  Ass'n,  78  C.  C. 

A.  406,  148  Fed.  672;  Barnewell  v. 
Stephens,  142  Ala.  609,  38  So.  662; 
Fusselman  v.  "Worthington,  14  111. 
135;  Doty  V.  Burdick,  8.''.  111.  473; 
Tobin  V.  Young,  124  Ind.  507,  24  N. 

B.  121;  Goodman  v.  Malcolm,  5  Kan. 
App.  285,  48  Pac.  439;  Campbell  v. 
Proctor,  6  Me.  (6  Greenl.)  12; 
Springs  v.  Scbenck,  99  N.  C.  551,  6 
S.  E.  405,  6  Am.  St.  Rep.  552; 
Schwoebel  v.  Fugina,  14  N.  D.  375, 
104  N.  W.  848;  Clark  v.  Bverly,  8 
Watts  &  S.  (Pa.)  226;  Duke  v.  Har- 
per, 14  Tenn.  (6  Yerg.)  280,  27  Am. 
Dec.  462;  Hall  v.  Haywood,  77  Tex. 
4,  13  S.  W.  612;  Wildey  Lodge  v. 
Paris,  31  Tex.  Civ.  App.  632,  73  S. 
W.  69;  Evans  v.  Enloe,  70  Wis.  345, 
34  N.  W.  918,  36  N.  W.  22.  In 
Clark  V.  Everly,  8  Watts  &  S.  (Pa.) 
226,  Gibson,  C.  J.,  apparently  con- 
siders that  there  is  a  disclaimer  in- 
volving a  forfeiture  when  the  tenant 
claims  that  the  reversion  has  passed 
to  him. 

6  Woodward  v.  Brown,  38  U.  S.  (13 
Pet.)  1;  Sims  v.  Cooper,  106  Ind.  87, 
5  N.  E.  726;  Bates  v.  Austin,  9  Ky. 
(2  A.  K.  Marsh.)  270,  12  Am.  Dec. 
395;  Meramon's  Heirs  v.  Caldwell's 
Heirs,  47  Ky.  (8  B.  Mon.)  32,  46  Am. 


Dec.  537;  Bodwell  Granite  Co.  v. 
Lane,  83  Me.  168,  21  Atl.  829,  23 
Am.  St.  Rep.  765;  Stephens  v. 
Brown,  56  Mo.  23;  Jackson  v.  Wheel- 
er, 6  Johns.  (N.  Y.)  272;  Calhoun  v. 
Perrin,  2  Brev.  (S.  C.)  247;  Duke  v. 
Harper,  14  Tenn.  (6  Yerg.)  280,  27 
Am.  Dec.  462;  Wadsworthville  Poor 
School  v.  Meetze,  4  Rich.  Law  (S. 
C.)   50. 

TWillison  v.  Watkins,  28  U.  S.  (3 
Pet.)  43;  Tillotson  v.  Doe,  5  Ala. 
407,  39  Am.  Dec.  330;  Wells  v.  Sheer- 
er, 78  Ala.  142;  Dahm  v.  Barlow,  93 
Ala.  120,  9  So.  598;  Fortier  v.  Bal- 
lance,  10  111.  (5  Gilm.)  41;  Farrow's 
Heirs  v.  Erlmundson,  43  Ky.  (4  B. 
Mon.)  605,  41  Am.  Dec.  250;  Trus- 
tees of  Wadsworthville  Poor  School 
V.  Jennings,  40  S.  C.  168,  18  S.  E. 
257,  891,  42  Am.  St.  Rep.  854.  In 
Snyder  v.  Harding,  34  Wash.  286,  75 
Pac.  812,  the  action  of  the  lessee  in 
asserting  a  claim  to  the  land  in  fee 
was  regarded  as  involving  a  declara- 
tion of  a  rescission,  which  was  ac- 
cepted if  the  landlord  brought  suit 
for  the  land.  See  ante,  §  187,  note 
501. 

8De  Lancey  v.  Ganong,  9  N.  Y.  (5 
Seld.)  1;  Jackson  v.  Kisselbrack,  10 
Johns.  (N.  Y.)  336,  6  Am.  Dec.  341; 
Rosseel  v.  Jarvis,  15  Wis.  571,  82  Am. 
Dec.  698;  Gale  v.  Oil  Run  Petroleum 


1356  FORFEITURE  OF  LEASEHOLD.  192 

There  has  been  but  little  discussion  of  what  will  constitute  a 
disclaimer  by  the  tenant  for  this  purpose.  An  attornment  to  a 
third  person  is,  it  seems,  effectual  as  a  disclaimer,  in  those  states 
in  which  the  disclaimer  is  not  required  to  be  by  record.^  It  has, 
however,  apparently  been  decided  that  a  mere  denial  by  the  ten- 
ant that  the  landlord  is  entitled  to  all  the  rent,  on  the  ground  that 
the  reversion  is  in  part  in  another,  is  not  a  sufiicient  disclaimer 
within  the  rule,i^  and  the  same  view  was  taken  of  the  action  of 
the  tenant  in  purchasing  a  one-third  interest  from  a  third  person, 
the  tenant  continuing  to  acknowledge  the  tenancy  as  to  a  two- 
thirds  interest.^  1  It  would  seem  that,  though  a  conveyance  by  a 
tenant,  purporting  to  be  of  an  estate  in  fee  simple,  cannot,  at 
the  present  day,  have  a  tortious  effect  as  transferring  a  greater 
estate  than  he  has,  it  may  be  a  cause  of  forfeiture  as  involving  a 
disclaimer  of  the  tenancy.^  ^ 

Even  in  jurisdictions  in  which  a  disclaimer  must,  in  order  to 
effect  a  forfeiture,  be  of  record,  the  actual  transfer  of  the  pos- 
session by  the  tenant  to  an  adverse  claimant  will,  it  seems,  have 
the  same  result.^^ 

Although  there  has  been  a  disclaimer  authorizing  the  landlord 
to  enforce  a  forfeiture,  this  right  has  been  regarded  as  lost  if 
he  subsequently  recognizes  the  tenant  as  his  tenant.^* 

Co.,  6  W.  Va.  200  (semble).  In  feiture  in  case  thereof.  In  Doe  d. 
Montgomery  v.  Craig,  33  Ky.  (3  Dillon  v.  Parker,  Gow,  180,  it  is  de- 
Dana)  101,  it  is  said  that  the  ten-  cided  that  the  mere  payment  of  rent 
ant's  claim  to  hold  adversely  to  the  to  a  third  person  is  not  a  disclaimer, 
landlord,  without  any  attornment  in  England,  however,  as  above  stat-- 
to  anoth-er  or  act  of  disclaimer,  is  ed,  the  disclaimer  must  be  by  record, 
not  a  cause  for  forfeiture.  lo  Newman    v.     Rutter,    8    Watts 

That   in    England    the    disclaimer  (Pa.)    51. 

must  be  of  record  to   effect  a   for-  n  Dahm   v.   Barlow,   93   Ala.   120, 

feiture,  see  Doe  d.  Graves  v.  Wells,  9  gg    593^  ^^2  L.  R.  A.  134. 

10  Adol.  &  E.  427;  and  that  such  is  1,  jt  ig  so  decided  in  Trustees  of 

the  case  in  Canada,  see  Doe  d.  Dan-  wadsworthville  Poor  School  v.  Jen- 

iels  V.  Weese,  5  U.  C.  Q.  B.  589.  nings.  40  S.  C.  168,  18  S.  E.  257,  891, 

oFortier    v.    Ballance,    10    111.     (5  42  Am.  St.  Rep.  854. 

Gilm.)  41;  Blue  v.  Sayre,  32  Ky.   (2  ^3  g^^  j^^^  ^    Ellerbrock  v.  Flynn, 

Dana)    213.     In  McCarrncy  v.  Auer  ^  ^            ^^  ^  ^  ^^^^  commented  on 

50  MO.  395,  an  attornment  to  a  third  .^  ^  ^  ^^  ^^^^ 
person    seems    to    be    regarded     as 

,  •  •  +v  „.^  ^,-f>,,-„  +>,<:>  oT^c^T•n  &  E.  427.  See,  also,  Kyle  v.  Stocks, 
bringing  the  case  withm  the  opera-    "- 

tion  of  the  statute  prohibiting  an  as-    31  U.  C.  Q.  B.  47. 

signment   and   providing  lor  a   for-       "  Dahm  v.  Barlow,  93  Ala.  120,  9 


^g2  *  fiY  DISCLAIMER  OF  TENANCY.  1357 

By  the  English  decisions  a  periodic  tenant,  if  he  disclaims  or 
repudiates  the  relation  of  landlord  and  tenant,  loses  his  right 
to  a  notice  to  quit  from  the  landlord,  and  gives  the  latter  a  right 
to  elect  to  terminate  the  tenancy  immediately,  since  "a  notice 
to  quit  is  only  requisite  where  a  tenancy  is  admitted  on  both  sides, 
and  if  a  defendant  denies  the  tenancy,  there  can  be  no  necessity 
for  a  notice  to  end  that  which  he  says  has  no  existence.  "^^  To 
have  this  effect  the  disclaimer  need  not  be  in  writing,!^  ^^t  it  must 
involve  an  assertion  of  title  in  the  tenant  himself  or  in  another.i^ 
A  claim  by  the  tenant  that  he  holds  the  premises  at  a  "custom- 
ary rent,"  with  a  denial  of  the  landlord's  right  to  raise  the  rent, 
has  been  regarded  as  a  sufficient  assertion  of  title  in  the  tenant  to 
come  within  the  operation  of  the  rule,i8  ^^t  a  different  view  has 
been  taken  of  a  claim  by  the  tenant  that  he  is  entitled  to  continue 
holding  under  the  landlord  at  a  reduced  rent,i9  and  of  a  claim  by 
him  that  he  has  bought  the  property,  accompanied  by  a  statement 
of  readiness  to  pay  for  it.^o  So  the  tenant  may  always  demand 
that  one  claiming  as  landlord  shall  show  that  he  is  such.21 

An  attornment  by  the  tenant  to  a  third  person  is  a  disclaimer 
entitling  the  landlord  to  terminate  the  tenancy  without  notice,22 
and  the  same  view  has  been  taken  of  the  tenant's  refusal  to  pay 
rent  because  a  third  person  named  has  ordered  him  not  to  pay,23 
or  because  his  "connection  as  a  tenant"  with  the  landlord  has 
ceased  and  he  "now  pays  his  rent"  to  the  latter 's  brother,24  as 
well  as  of  a  claim  to  hold  the  land  for  the  life  of  a  third  person 
named.25  On  the  other  hand,  a  mere  refusal  to  pay  rent,26  or  a 
refusal  to  pay  until  he  learns  who  is  entitled  thereto,27  or  until  a 

So   598   12  L.  R.  A.  134;  Douglass  V.  21  Doe    d.    Lewis    v.     Cawdor,     1 

Parker'  32  Kon.  593,  5  Pac.  178.  Cromp.   M.   &  R.   398. 

15-RPst    C    J    in  Doe  d.  Calvert  v.  22  Throgmorton  v.  Whelpdale,  Bull. 

,'  T,-     "  rcT  N.  P.  96;  Doe  d.  Davies  v.  Evans,  9 

Frowd,  4  Bmg.  557.  p   w    ^o 

16  Doe  d    Gray  v.  Stanion,  1  Mees.  Mees.  &  W.  48. 

16  Doe  fi-^ray  v.                ,  ^^               Whitehead  v.  Pittman,  2 

&  W.  703;  Doe  d.  Graves  v.  Wells.  10  ^^^    ^  ^   ^^^ 

Adol.  &  B.  427.  ^         .    1        24  Doe  d.  Grubb  v.  Grubb,  10  Barn. 

--  -i^--    J     -urmiomci    V     Cooner.    1 


&  C.  816. 


17  Doe    d.    Williams    v.    Cooper, 

Man.  &  G.  135.  25  Doe   d.    Hughes  v.   Bucknell,   8 

18  Vivian  v.  Moat,  16  Ch.  Div.  730.  ^^^   ^  p    ^^g 

19  Hunt  V.  Allgood,   10   C.  B.    (N.  26  Doe  d.  Gray  v.  Stanion,  1  Mees. 
S.)    253.  &  W.   703. 

20  Doe  d.  Gray  v.  Stanion,  1  Mees.  27  Jones  v.  Mills,  10  C.  B.  (N.  S.) 
&  W.  695.  788. 


1358  FORFEITURE  OF  LEASEHOLD.  §  193 

pending  suit  as  to  the  ownership  is  settled,28  is  not  a  disclaimer 
within  the  rule.  The  question  whether,  in  any  particular  case, 
there  has  been  a  disclaimer  defeating  the  tenant's  right  to  notice 
to  quit  is  a  question  of  law  for  the  court,  the  jury  passing,  it  seems, 
upon  the  meaning  of  the  words  used.29  The  landlord,  by  recog- 
nizing the  relation  as  still  continuing,  precludes  himself  from 
thereafter  asserting  the  tenant's  act  of  disclaimer.^o 

The  doctrine  that,  in  the  case  of  a  periodic  tenancy,  the  land- 
lord may,  upon  a  disclaimer  by  the  tenant,  re-enter  without  giv- 
ing any  notice  to  quit,  has  been  not  infrequently  asserted  in  this 
country ,31  and  a  like  rule  has  been  applied  in  the  case  of  a  ten- 
ancy at  will,^-  which,  in  a  number  of  states,  is,  as  before  stated,^^ 
ordinarily  terminable  only  on  notice.  It  seems,  likewise,  that, 
by  such  disclaimer,  the  tenant  at  will  would  lose  all  right  to  have 
a  demand  for  possession  made  by  the  landlord  before  the  bring- 
ing by  the  latter  of  an  action  of  ejectment.^^ 

§  193.     Under  statute. 

a.  For  breach  of  stipulation  of  lease.  As  elsewhere  stated^^ 
the  breach  by  a  tenant  of  a  mere  stipulation  or  covenant,  contained 

28  Doe  d.  Williams  v.  Pasquali,  bin,  85  N.  C.  108;  Emerick  v.  Taven- 
Peake's  N.  P.  259.  er,  9  Grat.  (Va.)  220,  58  Am.  Dec.  217. 

29  Doe  d.  Bennett  v.  Long,  9  Car.  &  Compare  Reeder  v.  Bell,  70  Ky.  (7 
P.  773;  Doe  d.  Williams  v.  Cooper,  1  Bush)   255. 

Man.  &  G.  135.  ^"  Simpson    v.    Applegate,    75    Cal. 

30  Doe  d.  David  v.  Williams,  7  Car.  342,  17  Pac.  237,  7  Am.  St.  Rep.  177; 
„   p    099  Von  Glahn  v.  Brennan,  81  Cal.  261, 

31  Smith  V.  Ogg  Shaw,  16  Cal.  88;  22  Pac.  596;  Jackson  v.  Wheeler,  6 
Eberwine  v.  Cook,  74  Ind.  377;  Johns.  (N.  Y.)  272;  Jackson  v. 
Brown  v.  Keller,  32  HI.  151,  83  Am.  French,  3  Wend.  (N.  Y.)  337,  20  Am. 
Dec.  258;  Herrell  v.  Sizeland,  81  HI.  Dec.  699;  Tuttle  v.  Reynolds,  1 
457;  Douglass  v.  Anderson,  32  Kan.  Vt.  80;  Steinhauser  v.  Kuhn,  50 
350'  4  Pac.  257;  Fogle  v.  Chaney,  Mich.  367,  15  N.  W.  513;  Amick  v. 
51  Ky.  (12  B.  Mon.)  138;  Doe  d.  Brubaker,  101  Mo.  473,  14  S.  W.  627. 
Ross  V.  Garrison,  31  Ky.    (1  Dana)  33  See  post,  §  19G  b. 

26;    Petty  v.   Miller,   54  Ky.    (15   B.  s*  Sims  v.  Cooper,  106  Ind.  87,  5  N. 

Mon.)     591;    Kunzie    v.    Wixom.    39  E.  726;  Jackson  v.  Wheeler,  6  Johns. 

Micli.  384,  33  Am.  Rep.  403;  Wolf  v.  (N.    Y.)     272;    Meramon's    Heirs    v. 

Holton,  92  Mich.  136,  52  N.  W.  459;  Caldwell's  Heirs,  47  Ky.  (8  B.  Mon.) 

Cook  V.  Penrod,  111  Mo.  App.  128,  85  32,  46  Am.  Dec.  537. 

S.  W.  676;    Head  v.  Head,  52  N.  C.  ^s  See  post,  §  194  b. 
(7  Jones  Law)    620;  Vincent  v.  Cor- 


.    j^gg  UNDER  STATUTE.  1359 

in  the  instrument  of  lease,  ordinarily  gives  the  landlord  no  right 
to  assert  a  forfeiture  of  the  tenant's  estate.  In  a  number  of  states, 
however,  statutes  have  been  adopted  introducing  exceptions  to 
this  rule.  In  some  the  landlord  is  authorized  to  resume  posses- 
sion upon  the  tenant's  failure  to  pay  rent,  such  a  provision  being 
most  frequently  introduced  as  a  part  of  a  statute  authorizing 
summary  proceedings,  and  the  nonpayment  of  rent  being  one  of 
the  grounds  named  for  such  a  proceeding.se  In  a  few  states  the 
nonpayment  of  rent  is  made  a  ground  of  forfeiture,  without  any 
reference  to  the  mode  of  proceeding  by  which  the  forfeiture  may 
be  enforced.^''' 

In  a  few  states  the  statute  provides  that  the  landlord  may  re- 
cover possession  in  case  the  tenant  violates  any  stipulation  of  the 
lease,  without  reference  to  the  presence  or  absence  of  language 
in  the  instrument  of  lease  expressly  making  that  a  ground  of  for- 
feiture.38  There  are  also  to  be  found  statutory  provisions  for  for- 
feiture in  case  of  assig.ument  or  subletting  by  persons  to  whom 
the  premises  are  leased  for  but  a  short  term.s'^'  ^o 

b.  For  illegal  use  of  premises.  The  fact  that  the  tenant  uses 
the  premises  for  an  illegal  purpose  does  not,  in  the  absence  of  a 
statutory  provision  to  that  effect,  give  the  landlord  a  right  to 
terminate  the  tenancy .^^     In  a  very  considerable  number  of  states 

36  See  post,  §  274  d,  e.  days'    written    notice    sufficient    to 

S7  Arizona' Hev.  St.  §  2693  (If  terminate  lease,  unless  tenant,  four 
rent  unpaid  for  five  days,  landlord  days  before  return  day  of  writ  in 
may  re-enter) ;  Florida  Gen.  St.  1906,  action  by  landlord  for  possession, 
§  2226  (On  failure  to  pay  rent,  les-  pays  or  tenders  rent  due  with  in- 
sor  may  re-enter);  Illinois,  Kurd's  terest  and  costs). 
Rev.  St.  1905,  c.  80,  §  8  (On  nonpay-  ss  Illinois,  Kurd's  Rev.  St.  1905,  c. 
ment  of  rent,  landlord  may  sue  in  80,  §  9.  See  Drew  v.  Mosbarger,  104 
ejectment  or  unlawful  detainer  after  111.  App.  635.  Missouri  Rev.  St. 
notice  that  if  not  paid  within  five  1899,  §  4108.  See  Murphy  v.  Century 
days  lease  will  be  terminated) ;  Ind-  Bldg.  Co.,  90  Mo.  App.  621,  where, 
iana,  Burns'  Ann.  St.  1901,  §  7093  though  the  statute  in  terms  gives 
(On  nonpayment  of  rent,  lease  may  the  landlord  a  "right  to  re-enter,"  It 
be  terminated  by  ten  days'  notice),  is  apparently  decided  that  he  is  lia- 
See  Leary  v.  Meier,  78  Ind.  393;  ble  in  damages  if  he  exercises  the 
Kansas  Gen.  St.  1905,  §§  4057,  4058    right. 

(On    nonpayment   of    rent,    landlord        39,  4o  See  ante,  at  note  215. 
may    terminate    lease    by    notice);        «  Feret  v.  Kill,  15  C.  B.  207;  Mil- 
Massachusetts    Rev.    Laws    1902,    c.    ler  v.  Forman,  37  N.  J.  Law,  55.     As 
129,  §  11  (On  failure  to  pay  rent  re-    to  the  validity  of  a  lease  made  for 
served    on    written   lease,    fourteen    an  illegal  purpose,  see  ante,  §  40. 


1360 


FORFEITURE  OF  LEASEHOLD. 


§    193 


the  statute  provides  that  the  lease  shall  be  void,  or  that  the  land- 
lord may  recover  possession,  in  ease  of  a  specified  use  of  an  il- 
legal character.42  The  use  of  the  premises  for  the  illegal  sale  of 
liquor,  their  use  for  gambling,  and  their  use  for  purposes  of  pros- 
titution, are  variously  specified  by  these  statutes  as  cause  for  such 
a  proceeding.^' 


42  The  fact  that  the  tenant  has 
paid  the  rent  in  advance  for  the  en- 
tire term  does  not  affect  the  right  of 
the  landlord  to  assert  a  forfeiture 
under  the  local  statute.  McGarvey 
V.  Puckett,  27  Ohio  St.  6G9. 

A  statute  authorizing  the  termina- 
tion of  the  lease  on  account  of  the 
illegal  use  of  the  premises  has  been 
held  to  give  one  to  whom  the  prem- 
ises were  conveyed  after  the  act  of 
forfeiture  no  right  to  assert  a  right 
of  re-entry  on  account  thereof. 
Small  V.  Clark,  97  Me.  304,  54  Atl. 

758. 

43  Colorado,  Mills'  Ann.  St.  1891,  § 
1513  (Unlawful  sale  of  liquor  cause 
of  forfeiture) ;  Connecticut  Gen.  St. 
1902,  §  1085  (If  tenant  convicted  of 
keeping  gambling  house  or  house  of 
prostitution,  lease  is  void,  the  lessor 
may  recover  possession  by  summary 
proceeding) ;  lowu  Code  1S97,  §§ 
2426,  4940  (Violation  of  liquor  law  or 
keeping  house  of  ill  fame  authorizes 
landlord  to  terminate  lease  and  de- 
mand possession  within  three  days, 
and  after  the  three  days  he  may  re- 
cover possession  by  forcible  entry 
and  detainer) ;  Kansas  Gen.  St.  1905, 
§  3779  (If  tenant  violates  liquor 
law,  right  of  possession  reverts  to 
the  lessor,  who  may  enter  without 
process  or  may  avail  himself  of  rem- 
edy provided  for  forcible  detainer) ; 
Maine  Rev.  St.  1903,  c.  22,  §  4  (Ten- 
ant using  building  in  violation  of 
liquor  law,  landlord  may  enter  with- 
out process  or  under  forcible  entry 


and  detainer  process) ;  Massachus- 
etts Rev.  Laws  1902,  c.  101,  §  10 
(Use  of  premises  for  prostitution, 
gaming  or  selling  liquor  annuls  lease 
and  causes  right  of  possession  to 
revest  in  ov/ner,  who  may  re-enter 
or  bring  summary  proceedings) ; 
Michigan  Comp.  Laws  1897,  §  5398 
(Any  sale  or  gift  of  liquor  shall,  at 
option  of  lessor,  forfeit  lease;  if  les- 
see keeps  house  of  ill  fame  or  pros- 
titution or  gaming  house,  lease  be- 
comes void  at  lessor's  option,  and  he 
has  same  remedy  to  recover  posses- 
sion as  against  tenant  holding  over) ; 
Nebraska  Comp.  St.  1905,  §  7875 
(Use  of  premises  by  tenant  as  broth- 
el shall  be  held  good  cause  on  the 
part  of  the  lessor  to  avoid  the  lease 
and  to  re-enter) ;  New  Jersey,  2  Gen. 
St.  p.  1923,  §  34  (If  lessee  uses  prem- 
ises for  prostitution,  lease  shall  be 
void,  and  landlord  may  enter  and 
has  same  remedies  to  recover  poss=es- 
sion  as  against  tenant  holding 
over) ;  New  Yorh  Code  Civ.  Proc.  § 
2231  (5)  (Where  the  demised  prem- 
ises, or  any  part  thereof,  are  used  or 
occupied  as  a  bawdy  house  or  house 
of  assignation  for  lewd  persons,  or 
for  any  illegal  trade  or  manufacture 
or  other  illegal  business) ;  Ohio  Rev. 
St.  1906,  §  4361  (Unlawful  sale  or 
giving  away  of  intoxicating  liquors 
forfeits  lease) ;  Oregon,  Bell  &  C. 
Codes,  §  1948  (if  lessee,  or  other  per- 
son with  his  assent,  uses  premises 
for  gambling,  lessor  may  terminate 
lease  and  recover  possession  by  ac- 


§  193  UNDER  STATUTE,  1361 

Statutes  providing  that  certain  illegal  uses  named  shall  render 
the  lease  void,  or  shall  give  a  right  of  re-entry  to  the  landlord, 
have  been  held  to  invalidate  the  lease  only  at  the  option  of  the 
landlord.'*^  Were  it  otherwise,  as  has  been  remarked,  the  ten- 
ant could,  at  will,  by  making  an  illegal  use  of  the  premises,  re- 
lieve himself  from  liability  under  the  leasees 

It  has  been  decided  in  one  jurisdiction  that  an  illegal  use  of  the 
premises  by  a  subtenant,  without  the  principal  tenant's  knowl- 
edge, would  render  the  interest  of  the  subtenant  only  subject  to 
forfeiture  in  favor  of  his  landlord,  and  would  not  enable  the  head 
landlord  to  assert  a  forfeiture  against  the  principal  tenant.^e 

e.  On  desertion  of  premises.  It  was  provided  by  the  statute 
11  Geo.  2,  c.  19,  §  16,  that  if  a  tenant  holding  lands  at  a  rent 
equal  to  three-fourths  of  the  yearly  value,  and  in  arrear  for  one- 
half  year's  rent,  should  desert  the  premises  and  leave  them  un- 
cultivated or  unoccupied,  so  as  no  sufficient  distress  could  be  had 
to  countervail  the  arrears  of  rent,  two  justices  of  the  peace  might, 
upon  the  landlord's  request,  after  posting  a  notice  on  the  premises, 
and  the  lapse  of  fourteen  days,  put  the  landlord  in  possession,  and 
that  thereupon  the  lease  should  be  void.  This  statute  has  been 
adopted  with  but  little  change  in  at  least  three  states  in  this 
country,^'''  and  in  others  there  are  provisions,  more  or  less  similar 
thereto,  giving  the  landlord  a  right  to  possession  upon  the  ten- 

tion    before   justice   of   the   peace);        44  Trask  v.  Wheeler,  89  Mass.    (7 

Rhode  Island  Gen.  Laws  1896,  c.  92,  Allen)    109;    Almy  v.  Greene    13  R 

§    4    (If   tenant    uses    premises    for  I.    350,    43    Am.    Rep.    32;     Small    v. 

prostitution,    gambling    or    sale    of  Clark,  97  Me.  304,  54  Atl.  758. 
liquor,  lease  Is  annulled,  and  right       45  Chapman,  J.,  in  Trask  v.  Wheel- 

of  possession  revests  in  lessor,  with-  er,  89  Mass.  (7  Allen)  109. 
out  any  act  on  his  part,  and  he  may        46  O'Connell  v.  McGrath,  96  Mass. 

re-enter).     See  Pettis  v.  Jennings,  10  (14  Allen)    289;    Healy  v.  Trant,  81 

R.     I.    70.        Tennessee,     Shannon's  Mass.   (I5  Gray)   312.     Aliter,  under 

Code,  §  6769   (If  lessee  keeps  house  the    Massachusetts    statute,    if    the 

of  ill  fame,  lease  is  void  at  lessor's  principal    tenant   makes    a   sublease 

option,  and   he  may  recover  posses-  for  the  purpose  of  conducting  the 

sion   as   when   tenant   holds   over) ;  unlawful  business.     Prescott  v.  Kyle, 

Utah   Comp.   Laws  1907,   §   3575    (If  103  Mass.  381. 

tenant  maintains  unlawful  business       ■iT  Mississippi    Code    1906,    §    2884 

or    suffers    or    maintains    nuisance  (No   particular   amount  of  rent  re- 

about  premises,  he  is  guilty  of  un-  quired    to   be    due) ;    New   Jersey,    2 

lawful  detainer);  Washington,  Ball.  Gen.   St.  p.   1918,   §  10;    South  Caro- 

Ann.  Codes  &  St.  §  5527  (5)  (same  as  Una  Civ.  Code,  §§  2418-2420. 
Utah). 

L.  and  Ten.  86. 


1362  FORFEITURE  OF  LEASEHOLD.  §  193 

ant's  desertion  of  the  premises  without  leaving  sufficiejit  thereon 
to  pay  the  rent.'*^ 

There  are  but  few  decisions  reported  under  either  the  English 
statute  or  its  counterparts  in  this  country.  In  jurisdictions  in 
which  the  landlord  has,  under  another  provision,  a  right  to  pro- 
ceed summarily  for  possession  in  case  of  nonpayment  of  rent, 
without  reference  to  the  desertion  of  the  premises,  the  particular 
provision  here  under  consideration  would  seem  to  be  useless,  and 
by  electing  to  proceed  thereunder  the  landlord  would  assume  the 
burden  of  showing  the  premises  to  be  deserted.  Furthermore,  by 
the  weight  of  the  modern  decisions,^^  the  landlord  has,  upon  such 
desertion  of  the  premises  by  the  tenant,  without  reference  to  the 
statute,  the  right  to  resume  possession  without  resort  to  legal 
process. 

It  has  been  decided  in  England  that  the  premises  were  deserted, 
within  the  statute,  when  the  tenant  of  a  house  had  for  several 
months  ceased  to  reside  or  carry  on  business  there,  and  his  furni- 
ture had  been  removed  under  a  distress,  and  there  was  no  person 
in  charge  or  sleeping  on  the  premises.^^  But  a  different  view  was 
taken  when  the  tenant's  wife  and  children  were  occupying  the 
premises,  though  there  was  no  furniture  there  except  a  few  chairs, 
lent  by  a  neighbor.^i 

d.  For  improper  use  of  premises.  The  statute  of  Gloucester 
provides  that  a  tenant  of  a  limited  estate  committing  waste  upon 
the  property  shall  thereby  forfeit  his  estate,  and  there  are  similar 
provisions  in  a  number  of  states.  These  statutes  have  been  dis- 
cussed in  an  earlier  part  of  this  work.^^ 

*»  North  Carolina  Revisal  1905,  §  §    2786    (No    particular    amount    of 

2001  (If  tenant  who  is  in  arrear  for  rent  required  to  be  due,  and  landlord 

rent,   or   who  has   agreed   to   pay   a  himself  to  post  the  notice  and  then 

crop  rent,  or  who  has  given   a  lien  take     possession) ;      West     Virginia 

on  the  crop,  deserts  the  premises,  the  Code  1906,  §  3399   (same), 

landlord  may  proceed  against  him  as  49  See  ante,  §  3  b  (2),  notes  50-55; 

against  over-holding  tenant);   Penn-  §  190  c    (1),  note  123. 

sylvania  Act  March  25,  1825   (Laws  so  Ex  parte  Pilton,  1  Barn.  &  Aid. 

1825,  c.  68,  §  2)    (If  lessee  rem.oves  369. 

from  premises  in  Philadelphia  with-  51  Ashcroft  v.    Bourne,   3  Barn.   & 

out  leaving  sufficient  property  there-  Adol.     684.     And     see     Freytag     v. 

on     to     secure     payment     of     three  Anderson,  1  Rawle  (Pa.)  73. 

months'  rent,  justices  may  give  les-  52  See  ante,  §  109  b  (7). 
sor  possession) ;  Yirginia  Code  1904, 


X  194  UNDER  EXPRESS  CONDITION.  1363 

A  statutory  provision  that,  if  a  thing  is  let  for  a  particular  pur- 
pose, the  "letter"  may  treat  the  contract  as  rescinded  upon  the 
use  of  the  thing  for  another  purpose,  has  been  held  to  apply  to  the 
''hiring  of  real  property,"  and  to  authorize  a  landlord  to  termi- 
nate the  tenancy  upon  the  use  of  the  premises  for  a  purpose  not 
iaitended.^3 

§  194.    Under  express  condition  subsequent. 

a.  General  considerations.  A  forfeiture  of  the  tenant's  estate 
quite  frequently  takes  place  by  reason  of  a  breach  by  him  of  a 
condition  subsequent  contained  in  the  instrument  of  lease. 

While  certain  words  are  said  to  be  appropriate  for  the  creation 
of  a  condition,  such  as  "on  condition"  and  "provided,"^*  no  par- 
ticular words  are  required,  it  being  purely  a  question  of  the  in- 
tention of  the  parties,  as  gathered  from  the  whole  instrument,  to 
create  a  condition.^^ 

An  oral  condition  subsequent,  it  has  been  decided,  cannot,  under 
the  "parol  evidence  rule,"  be  engrafted  upon  a  lease  which  has 
been  incorporated  in  a  written  instrument.^^ 

At  common  law  the  breach  of  a  condition  subsequent  was  ordi- 
narily availed  of  by  a  grantor  or  lessor  by  mea.as  of  a  "re-entry" 
upon  the  land,  and  for  this  reason  the  clause  containing  such  a 
provision  is  frequently  referred  to  as  a  "proviso  for  re-entry," 
or  "clause  of  re-entry,"  although  at  the  present  day  an  actual 
re-entry  is  not,  in  the  majority  of  cases  at  least,  necessary  in  order 
to  enforce  a  forfeiture  upon  a  violation  of  the  condition.^"^ 

It  is  not  infrequently  said  that  a  proviso  for  re-entry,  or,  as  it 
may  as  well  be  called,  a  co.ndition  subsequent,  or  a  provision  for 
forfeiture,  will  be  construed  strictly  in  favor  of  the  tenant,  thus 
applying  the  general  rule  that  forfeitures  are  not  favored  by  the 
courts.^^     Such  a  rule  is,  however,  to  be  applied  only  when  there 

53  isom  V.  Rex  Crude  Oil  Co.,  147  Barn.  &  Adol.  715,  720;  Kansas  City 

Cal.  659,  82  Pac.  317.  Elevator  Co.  v.  Union  Pac.  Ry.  Co.,  3 

54Litt.     §§     328-331;     Portington's  McCrary,  463,  17  Fed.  200;    Sauer  v. 

Case,  10  Coke,  35a,  41b.  Meyer,  87  Cal.  34,  25  Pac.  153;  Camp 

B5  See  cases  cited  1  Tiffany,  Real  v.  Scott,  47  Conn.  366;   Williams  v. 

Prop.  §  68,  note  463.  Vanderbilt,  145  111.  238,  34  N.  E.  476, 

56  Morris  v.  Healy  Lumber  Co.,  46  21  L.  R.  A.  489,  36  Am.  St.  Rep.  486; 
Wash.  686,  91  Pac.  186,  123  Am.  St.  Meni  v.  Rathbone,  21  Ind.  454;  Miller 
Rep.  955.  V.  Havens,  51  Mich.  482,  16  N.  W.  865; 

57  See  post,  §  194  j.  Wakefield  v.  Sunday  Lake  Min.  Co., 
68  See  Doe  d.  Polk  v.  Marchetti,  1    85  Mich,  605,  49  N.  W.  135;  Jackson 


1364 


FORFEITURE  OF  LEASEHOLD. 


§  194 


is  some  obscurity  in  the  language  used,  and  the  construction  must 
accord  with  the  apparent  intent  of  the  parties,  so  far  as  this  may- 
appear.^^  And  its  application  must,  it  seems,  be  considerably  re- 
stricted when  the  condition  takes  the  form  of  a  right  of  re-entry 
for  breach  of  a  covenant  of  the  lease.^'^ 

b.  Condition  distinguished  from  covenant.  A  condition,  on 
breach  of  which  the  tenant's  interest  may  be  terminated,  is  to  be 
distinguished  from  a  covenant,  a  breach  of  which  cannot,  in  the 
absence  of  a  statutory  provision  to  the  contrary,^!  affect  the  ten- 
ant's interest,  but  merely  gives  the  landlord  a  right  of  action  for 
damages,^2  or,  occasionally,  a  right  to  an  injunction,^^  or  a  de- 


V.  Topping,  1  Wend.  (N.  Y.)  388,  19 
Am.  Dec.  515;  Eaton  v.  Wilcox,  42 
Hun  (N.  Y.  61.  See  Harris  v.  Ohio 
Oil  Co.,  57  Ohio  St.  118,  48  N.  E.  502. 
Applying  this  principle,  a  condition 
of  forfeiture  "if  any  of  the  within 
payments  remain  unpaid"  was  con- 
strued to  refer  to  a  whole  payment, 
and  not  to  apply  when  a  part  thereof 
was  paid.  Westmoreland  &  Cambria 
Natural  Gas  Co.  v.  De  Witt,  130  Pa. 
235,  18  Atl.  724,  5  L.  R.  A.  603. 

59Goodtitle  v.  Saville,  16  East,  87; 
Doe  d.  Davis  v.  Elsam,  Moody  &  M. 
189;  Doe  d.  Muston  v.  Gladwin,  6  Q. 
B.  953;  Faylor  v.  Brice,  7  Ind.  App. 
551,  34  N.  E.  833. 

60  "We  must  construe  the  covenant 
without  regard  to  the  proviso  for  re- 
entry, for  its  construction  must  be 
the  same  in  an  action  for  damages 
for  breach  of  the  covenant  as  in  an 
action  for  the  recvery  of  land  on  the 
ground  that  the  proviso  for  re-entry 
has  come  into  operation  by  reason  of 
such  breach."  Jessel,  M.  R.,  in  Bris- 
tol V.  Westcott,  12  Ch.  Div.  461.  That 
a  covenant  is,  in  case  of  doubt,  to  be 
construed  in  favor  of  the  covenantee, 
Bee  ante,  §  58  a,  at  note  112. 

61  See  ante,  §  193  a. 

62Bac.  Abr.,  Rent  (K  4);  Buck- 
ner  v.  Warren,  41  Ark.  532,  48 
Am.    Rep.     46;     Van     Valkenburgh 


V.  Peyton,  7  111.  (2  Gilm.)'  44; 
People  V.  Gilbert,  64  111.  App.  203; 
Brown's  Adm'rs  v.  Bragg,  22  Ind. 
122;  Jackson  v.  McClallen,  8  Cow. 
(N.  Y.)  295;  Jackson  v.  Harrison,  17 
Johns.  (N.  Y.)  66;  Eldridge  v.  Bell, 
64  Iowa,  125,  19  N.  W.  879;  De 
Lancey  v.  Ganong,  9  N.  Y.  (5  Seld.) 
9;  Simmons  v.  Jarman,  122  N.  C. 
195,  29  S.  E.  332;  Ocean  Grove  Camp 
Meeting  Ass'n  v.  Sanders,  68  N.  J. 
Law,  631,  54  Atl.  448;  Johnson  v. 
Gurley,  52  Tex.  222;  Ewing  v.  Miles, 
12  Tex.  Civ.  App.  19,  33  S.  W.  235; 
Thompson  v.  Christie,  138  Pa.  230, 
20  Atl.  934,  11  L.  R.  A.  236.  So  a 
breach  of  an  agreement  to  pay  rent 
does  not,  at  common  law,  give  to  the 
lessor  any  right  to  assert  a  forfeit- 
ure. Buckner  v.  Warren,  41  Ark. 
532,  48  Am.  Rep.  46;  Beal  v.  Bass,  86 
Me.  325,  29  Atl.  1088;  Bartlett  v. 
Greenleaf,  77  Mass.  (11  Gray)  98; 
Tarlotting  v.  Bokern,  95  Mo.  541,  8 
S.  W.  547;  Jackson  v.  McClallen,  8 
Cow.    (N.  Y.)    295. 

But  in  Hall  v.  Smith,  16  Minn.  58 
(Gil.  46),  though  there  was  no  con- 
dition of  re-entry,  relief  was  given, 
upon  the  lessee's  breach  of  coven- 
ants to  pay  rent  and  to  make  im- 
provements, by  an  order  giving  pos- 
session to  the  lessor  unless  the  lessee 
performed    the    covenants.    And    in 


.  ^g^  UNDER  EXPRESS  CONDITION.  1365 

cree  for  specific  performance.^^a  tj^^  question  whether,  in  a  par- 
ticular case,  a  provision  of  the  lease  constitutes  a  covena^nt  or  a 
condition  is  not  infrequently  a  question  of  some  difficulty. 

Mere  words  of  agreement,  not  contemplating  a  termination  of 
the  lessee's  interest  upon  his  default,  create  a  covenant  and  not  a 
condition.63b  But  a  clause  reading  "it  is  stipnlated  and  con- 
ditioned" has  been  construed  as  creating  a  condition,^^  as  has  a 
clause  "provided  always  and  it  is  further  covenanted. "^^  A 
clause  providing  for  the  termination  of  the  lessee's  interest  at  the 
election  of  the  lessor,  upon  a  default  by  the  lessee,  though  in  the 
form  of  a  mere  stipulation,  has  been  regarded  as  a  condition,  since 
it  provides  for  a  forfeiture  in  case  of  def ault.^s  And  one  by  which 
the  lessee  "agrees  to  forfeit  the  lease"  in  a  certain  contingency 
has  apparently  received  the  same  construction.^^  But  an  agree- 
ment by  the  lessee  to  relinquish  possession  upon  a  certain  con- 
tingency or  upon  a  demand  has,  by  the  weight  of  authority,  been 

Kentucky  River  Nav.  Co.  v.  Com.,  76    the  lease  was  destroyed.     A  reten- 
Ky    (13  Bush)  435,  it  was  held  that,    tion  of  the  house  would  be  a  fraud 
at  the  request  of  the  state,   equity    upon  the  plaintiff."     It  might  have 
might   "rescind"    a    lease   of   public   been  considered,  it  would  seem,  that 
property  upon  the  lessee's  breach  of    a  mere  license  to  use  the  house,  and 
its  covenants;   citing  a  civil-law  au-    not  a  lease  thereof,  was  granted, 
thority  (Caffin  v.  Scott,  7  Rob.  [La.]        es  See  ante,  §§  123  1,  152  k. 
205)      Also   in  Wray-Austin  Machin-        esa  See  post,  §§  233,  268,  271  I. 
ery  Co   v  Flower,  140  Mich.  452,  103        esb  Shaw  v.  Coffin,  14  C.  B.  (N.  S.) 
N    W    873    it  is'  said  that   if  it  is    372;   Philips  v.  Tucker,  3  Ind.   132; 
provided  that  the  lease  shall  not  be    Gould  v.  Bugbee,  72  Mass.   (6  Gray) 
as-.igned  an  assignment  works  a  for-    371;  Wilson  v.  Owens,  1  Ind.  T.  163, 
feiture      The    Michisran    cases    cited    38  S.  W.  976;    McKnight  v.  Kreutz, 
do   not    support    the   statement.     In    51  Pa.  232,  88  Am.  Dec.  579;  Johnson 
Crawley  v.  Mullins,  48  Mo.  517,  there    v.    Gurley,    52   Tex.    222.       And    see 
was  a  lease  of  a  mill  for  one  year    cases  cited  ante,  note   62.     But  see 
with    a    covenant    by    the    lessee   to    White  v.  Naerup,  57  111.  App.  114. 
run  it  in  a  proper  manner  and  to       C4  Doe  d.  Henniker  v.  Watt,  8  Bam. 
divide  the  proceeds,  in  consideration    &  C.  308,  1  Man.  &  R.  694. 
of  which  the  lessor  gave  the  lessee       65  Co.  Litt.  203  b;  Simpson  v.  Tit- 
the  use   of  a  dwelling,   and   it  was    terell,  Cro.   Eliz.   242;    Pembroke  v. 
held   that  the   abandonment  of   the    Berkley,  Cro.  Eliz.  384. 
mill    terminated    the    lease    of    the       ee  Horton   v.   New  York   Cent.   R. 
dwelling.     It  is  said  that  "possession    Co.,  12  Abb.  N.  C.  (N.  Y.)  30;  Beach 
of  the  property  was  given  to  enable    v.  Nixon,  9  N.  Y.  (5  Seld.)  35. 
the  defendant  to  run  the  mill;  there       er  Winn  v.   State,  55  Ark.  360,  18 
was  no  other  consideration,  and  by    S.  W.  375. 
abandoning  the  mill  the  substance  of 


1366  FORFEITURE  OF  LEASEHOLD.  §  194 

regarded  differently. ^^  Where  a  clause  provides  for  tlie  doing  of 
things  by  both  parties,  as  when  the  lessee  agrees  to  give  up  part 
of  the  premises  on  a  reduction  of  rent  by  the  lessor,  there  is  cre- 
ated, it  seems,  a  covenant  and  not  a  condition.<59 

Although  a  breach  of  covena*nt  does  not  in  itself  give  to  the  land- 
lord any  right  to  terminate  the  tenant's  interest,  the  instrument  of 
lease  frequently,  and  indeed  ordinarily,  contains  a  clause  entitling 
the  landlord  to  terminate  the  tenant's  interest,  or,  as  it  would  be 
usually  expressed,  to  "re-enter,"  upon  the  breach  by  the  tenant 
of  some  particular  covenant  or  covenants,  or  of  any  of  the  cove- 
nants contained  therein,'^"  such  a  clause,  in  effect,  constituting  a 
condition,  to  be  read  in  connection  with  the  covenant  or  covenants 
to  which  it  refers.  Whether  such  clause  of  re-entry  applies  to 
any  particular  covenant  which  may  have  been  broken  is  a  question 
of  construction,  and  the  courts  will,  in  case  of  doubt,  it  seems, 
construe  the  condition  as  not  so  applying,'''^  in  accordance  with  the 
general  policy  adverse  to  forfeiture.'^^ 

There  are  English  dicta  to  the  effect  that  a  clause  of  re-entry 
expressed  to  take  effect  upon  the  lessee's  failure  to  "perform"  his 
covenants  extends  to  breaches  of  affirmative  covenants  only,  a.nd 
not  to  those  of  a  negative  character,  which  only  bind  him  to  refrain 
from  certain  acts,'^^  but  there  is  a  late  decision  to  a  contrary  ef- 

68  Doe    d.    Willson    v.    Phillips,    2  to  See  Winn  v.  State,  55  Ark.  360, 

Bing.   13;    Wheeler   v.   Dascomh,   57  48  S.  W.  375;   Kew  v.  Trainor,  150 

Mass.   (3  Cush.)   285;  Sloan  v.  Cant-  111.   150,    37   N.   B.    223;    Wheeler  v] 

rell,  45  Tenn.   (5  Cold.)   571;   Denni-  Earle,  59  Mass.  (5  Cush.)  31,  51  Am. 

son  V.  Read,  33  Ky.   (3  Dana)   58i5;  Dec.  41;  Post  v.  Moran,  10  Daly  (N. 

Bergland  v.  Frawley,  72  Wis.  559,  40  Y.)    502;    Hand  v.  Suravitz,  148  Pa. 

N.    W.    872.     Tha    contrary    is    as-  202,  23  Atl.  1117,  30  Wkly.  Notes  115. 

sumed  in  Simons  v.  Marshall,  3  G.  It  is  immaterial  that  the  covenant  is 

Greene  (Iowa)  502;  Walker  v.  Dowl-  written   and   the   re-entry   clause  is 

ing,  24  Ky.  Law  Rep.  179,  68  S.  W.  printed.     Heiple    v.     Reinhart,     100 

135.     And    see    Hackett    v.    Marmet  Iowa,  525,  69  N.  W.  871. 

Co.,  3  C.  C.  A.  76,  52  Fed.  268,  17  L.  7i  See   Heiple   v.   Reed    (Iowa)    65 

R.  A.   804.  N.  W.  331;    Doe  d.  Spencer  v.  God- 

60  Doe  d.  Willson  v.  Phillips,  2  win,  4  Maule  &  S.  265. 
Bing.  13,  per  Burrough,  J.  In  Ellis  72  See  ante,  at  note  58. 
V.  Fitzpatrick,  3  Ind.  T.  567,  64  S.  73  There  are  dicta  to  that  effect  In 
W.  567,  it  was  decided  that  where  a  West  v.  Dobb,  L.  R.  5  Q.  B.  460; 
lease  was  from  month  to  month  "un-  Hyde  v.  Y\^arden,  3  Exch.  Div.  72; 
til  terminated  by  the  option  of  either  Evans  v.  Davis,  10  Ch.  Div.  747.  Con- 
party  or  by  failure  to  pay  rent,"  non-  tra,  per  Kay  and  Lopes,  J.  J.,  in  Bar- 
payment  of  rent  forfeits  the  lease,  row  v.  Isaacs  [1891]  1  Q.  B.  417.     In 


§  1J4  UNDER  EXPRESS  CONDITION.  1367 

fectJ^  A  clause  giving  a  right  of  re-entry  if  the  lessee  "do  or 
cause  to  be  doaie"  an  act  in  breach  of  a  covenant  has  been  held 
not  to  apply  to  a  breach  by  mere  omission,  such  as  a  failure  to 
repairJ^  Any  question  of  this  sort  may  be  avoided  by  providing 
for  a  right  of  re-entry  on  failure  to  "observe"  or  "keep"  any  of 
the  covenants,"^  or  on  "breach"  of  any  of  the  covenants,'^^  these 
words  being  unquestionably  applicable  alike  to  positive  and  nega- 
tive covenants. 

The  mere  fact  that  a  clause  of  re-entry,  applying  in  terms  to  a 
breach  of  any  of  the  covenants,  undertakes  to  enumerate  them, 
but  omits  one,  will  not,  it  has  been  held,  prevent  it  from  applying 
to  that  one.'^^  A  clause  of  re-entry  so  applying  to  the  breach  of 
any  of  the  covenants  may  apply  to  a  covenant  for  the  payment  of 
rent,  it  appears,  though  a  prior  clause  expressly  gives  a  right  of 
re-entry  after  a  certain  period  of  default  in  rent.'^^  A  provision 
for  forfeiture  in  case  of  a  failure  in  one  respect  cannot  be  extended 
by  implication  to  a  failure  to  perform  an  independent  stipula- 
tion.80  ^j2(j  a  provision  for  re-entry  in  case  the  tenant  "fail  in 
any  of  the  foregoing  promises"  does  not  apply  to  an  implied  cove- 
nant to  farm  properly.*^ ^  That  the  words  of  a  covenant  against 
a  particular  act  have  been  erased  in  the  instrument  as  executed 

Doe  d.  Polk  v.  Marchetti,  1  Barn.  &  Atl.  408,  103  Am.   St.  Rep.  801.     Or 

Adol.  715,  a  clause  of  re-entry  on  de-  if  lessee  "fail,  refuse  or  neglect  to 

fault  in  rerformance  of  any   coven-  carry  out  terms  of  lea<5e."     Longhi 

ant  for  thirty  days  after  notice  was  v.  Samson,  46  U.  C.  Q.  B.  446. 

held  not  to  extend  to  a  ne^^ative  cov-  77  Per  Blackburn,  J.,  in  Wadham  v. 

enant  not  to  make  alterations,  as  the  Postmaster  General,   L.  R.   6   Q.   B. 

provision  for  notice  was  plainly  in-  644. 

applicable  thereto.  7s  ^oe    d.    Antrobus    v.    Jepson,    3 

74Harman  v.   Ainslie  [1904]    1  K.  Barn.  &  Adol.  402. 

B.  698.  '^9  It  is  decided  in  Van  Rensselaer 

75  Doe  d.  Abdy  v.  Stevens,  3  Barn.  v.  Jewett,  2  N.  Y.  (2  Comst.)  141. 

&    Adol.    299.     But    see    Wheeler    v.  so  Burnes  v.  McCubbin,  3  Kan.  221, 

Earle,  59  Mass.  (5  Cush.)  31,  51  Am.  87  Am.  Dec.  408. 

Dec.  41.  SI  Hough  v.  Brown,  104  Mich.  109, 

TGTimms  v.  Baker,  49  Law  T.  (N.  62  N.  "W.  143;   Somers  v.  Loose,  127 

S.)    106;    Croft  v.   Lumley,   6  H.  L.  Mich.  77,  86  N.  W.  386. 

Cas.  672;   Barrow  v.  Isaacs  [1891]  1  A   "provision"   as   to   the   sale   of 

Q.  B.  417;  Wheeler  V.  Earle,  59  Mass.  produce  is  a  covenant  within  a  con- 

(5  Cush.)    31,  51  Am.  Dec.  41  ("per-  dition  of  re-entry  for  breach  of  cov- 

form  and  obaerve")  ;  West  Shore  R.  enants.     Vincent  v.  Crane,  134  Mich. 

Co.  v.  Wenner,  70  N.  J.  Law,  233,  57  700,  97  N.  W.  34. 


1368 


FORFEITURE  OF  LEASEHOLD.  §  194 


does  not,  it  has  been  decided,  affect  the  validity  of  a  condition  of 
re-entry  upon  the  doing  of  such  act.^^ 

e.  Condition  distinguished  from  limitation.  A  condition  subse- 
quent, on  a  breach  of  which  by  the  tenant  his  estate  may  be  ter- 
Tninated  by  the  landlord,  is  to  be  distinguished  from  a  "special 
(or  collateral)  limitation,"  by  which  the  tenant's  estate  is  lim- 
ited to  continue  only  until  the  happening  of  some  contingent  event, 
in  which  case  the  tenant's  estate  terminates  on  such  event  without 
any  action  on  the  part  of  the  landlord.ss.s^  in  both  cases  the  dur- 
ation of  the  estate  is  subject  to  a  contingent  event,  but  while  in 
the  case  of  a  condition  the  words  providing  for  its  termination 
upon  a  contingency  are  not  regarded  as  a  part  of  the  original 
limitation  of  the  estate,  and  consequently  the  mere  happening  of 
the  event  does  not  terminate  the  estate,  but  action  on  the  part  of 
the  landlord  is  necessary  for  this  purpose,  in  the  case  of  a  special 
limitation,  on  the  other  hand,  the  words  of  contingency  are  regard- 
ed as  a  part  of  the  original  limitation  of  the  estate,  and  conse- 
quently the  estate  necessarily  terminates  immediately  upon  the 
happening  of  the  contingency,  without  any  action  by  either  party. 

d.  Forfeiture  dependent  on  landlord's  election.  It  was  at  one 
time  the  law  in  England  that,  in  case  of  a  lease  for  years,  a  pro- 
vision that  the  lease  should  become  *'void"  upon  a  default  by  the 
tenant  in  the  performance  of  any  particular  stipulation,  had  the 
effect  of  terminating  the  tenancy  immediately,  without  any  action 
by  the  landlord,^^  the  courts  thus  in  effect  regarding  such  a  pro- 

82  Pond  V.  Holbrook,  32  Minn.  291,  same  state  that  such  a  stipulation 
20  N.  W.  232.  did  not  constitute  a  conditional  limi- 

83,  84  See  ante,  §  12  d.  See,  for  il-  tation  of  the  tenancy,  terminating  it 
lustrations  of  the  distinction.  Beach  without  any  action  by  the  landlord 
V.  Nixon.  9  N.  Y.  (5  Seld.)  35;  Pen-  upon  nonpayment  of  rent.  Elliott  v. 
oyer  V.  Brown,  13  Abb.  N.  C.  (N.  Y.)  Stone,  66  Mass.  (12  Cush.)  174; 
82,  and  cases  cited  post,  notes  86-88.    Sprague  v.  Quinn,  108  Mass.  553. 

In  Elliott  V.  Stone,  67  Mass.  (1  In  Smith  v.  Hill,  63  Cal.  51,  a  pro- 
Gray)  571,  it  was  decided  that  a  pro-  vision  that  the  tenancy  should  term- 
vision  in  a  lease  for  payment  of  rent  inate  upon  a  sale  by  the  lessor  wa<3 
quarterly  in  advance,  with  a  condi-  treated  as  a  condition.  See  ante,  § 
tlon  that  if  rent  was  not  so  paid  the    12  e. 

lessee    should    leave    the    premises,        85  Pennant's   Case,   3   Coke,   64   a; 
was  regarded  as  making  such  pay-    Finch    v.    Throckmorton,   Cro.   Eliz. 
ment  a   condition   precedent  tc   tho    220;    Mulcarny   v.   Eyres,   Cro.   Car, 
vesting  of  the  estate  from  quarter  to    511. 
quarter;   but  it  was  decided  in  the 


„  jg^  UNDER  EXPRESS  CONDITION.  1369 

vision  not  as  a  condition,  but  as  a  special  limitation.     This  view 
has  now  however,  been  repudiated  in  that  country,  it  being  recog- 
nized that  the  effect  thereof  was  to  enable  the  tenant,  desiring 
to  terminate  the  lease,  to  do  so  by  merely  making  a  default,  he  thus 
taking  advantage  of  his  own  wrong.     The  rule  now  recognized 
there    and  in  most  parts  of  this  country,  is  that,  even  though 
the  instrument  of  lease  provides  that  the  lease  shall  become  void 
or  terminate  upon  the  breach  of  a  stipulation  by  the  lessee,  such 
a  breach  does  not  terminate  the  tenancy  until  the  landlord  has  m 
some  way  signified  his  election  that  it  shall  do  so.^e     And  such 
election  by  the  landlord  is  a  fortiori  necessary  in  the  case  of  a  lease 
which  provides  for  a  right  of  re-entry  or  a  forfeiture  ooi  breach  of 
a  condition.s'f     The  same  principle  has  been  applied  in  the  case  of 

86  Rede  V.  Farr,  6  Maule  &  S.  121;    son,  34  N.  C.    (12  Ired.  Law)    194; 
Arnsby  v    Woodward,  6  Barn.  &  C.   Wills  v.  Manufacturers'  Natural  Gas 
tl9-  Jones  v.  Carter,  15  Mees.  &  W.    Co.,  130  Pa.   222,   18   Atl.  721,  5  L. 
718;  Davenport  v.  Reg..  3  App.  Cas.    R.  A.  603;   Ray  v.  Western  Pennsyl- 
115-    Dermott  v.  Wallach,   68  U.  S.    vania  Natural  Gas  Co.,  138  Pa.  576. 
f  1  wall  )   64   (dictum) ;  Wildman  v.    20  Atl.  1065.  12  L.  R.  A.  290.  21  Am. 
Tavlor  '4    Ben     42.    Fed.    Cas.    No.    St.  Rep.  922;  Cochran  v.  Pew,  159  Pa. 
17,654;' Boston  El.  R.  Co.  v.  Grace  &    184,   28  Atl.   219;    Caruthers  v.   Mc- 
Hvde  Co     50  C    C    A.  239,  112  Fed.    Burney,    35    Tenn.     (3    Sneed)     590 
279-  Bowman  v.  Foot,  29  Conn.  331;     (dictum) ;  Brady  v.  Nagle  (Tex.  Civ. 
Grommes  v    St.  Paul  Trust  Co.,  147    App.)   29  S.  W.  943;   Deaton  v.  Tay- 
Jll  684   35  N.  B.  820.  37  Am.  St.  Rep.    lor,  90  Va.  219.  17  S.  E.  944. 
248   (dictum)  •   Brown  v.  Cairns,  63        Occasionally  it  is  said  that  breach 
Kan     584     66'pac.    639;     Hartford    of  a  "clause"  or  of  a  "covenant"  does 
Wheel   Club  v    Travellers'   Ins.  Co..    not  terminate  the  lease  except  at  the 
78  Conn   355   62  Atl.  207;  English  v.    option  of  the  landlord.    Webster  v. 
?ater205  pa.  106.    54  Atl.  503;  Ed-    Nichols.  ^04  m.  160;   Willoughby  v. 
monds  V.  Mounsey,  15  Ind.  App.  399.    Lawrence,   116   111.  11,  4  N.   E-   356. 
^4  N   E    196;  western  Bank  v.  Kyle,    56  Am.  Rep.  758;  Holman  v.  De  Lin- 
6    Gill    (Md.)    343    (dictum);    Cart-    River  Finley  Co..  30  Or.  428,  47  Pac. 
wriRht    V     Gardner,     59    Mass.     (5    708.     These  statements  are  probably 
Cush  )   273-  Shattuck  v.  Lovejoy,  74    meant  as  assertions  of  the  rule  above 
Mass    (8  Gray)  204;  Walker  v.  Eng-   stated.     A  mere   stipulation  or  cov- 
ler    30  Mo    130;    Clark  v.   Jones,  1    enant,    not   accompanied   by   a    con- 
Denio  (N   Y.)  516,  43  Am.  Dec.  706;    dition,    cannot    terminate    a    lease, 
Hortonv'NewYorkCent.R.Co.,12    even   at   the   landlord's   election,    m 
Ahh   N    C    (N    Y)   30;  Williams  v.    the  absence  of  a  statutory  provision 
Beach  Pirates  Chemical  Engine  Co..    that  it  shall  have  that  effect.     Ante, 
73  N   J  Law,  446,  63  Atl.  990;  Crev-    §  194  b. 

e ling  V   Wesi  End  Iron  Co..  51  N.  J.       s^  Read  v.  Tuttle.  35  Conn.  25    95 
Law!  34.  16  Atl.  184;  Phelps  v.  Ches-    Am.  Dec.  216;  Smith  v.  Miller,  49  ^. 


1370 


FORFEITURE  OF  LEASEHOLD. 


§  194 


a  provision  that  on  default  by  the  lessee  he  should  surrender  pos- 
session.ss  Tj^e  eifeet  of  these  various  decisions  seems  to  be  that, 
whatever  the  language  used,  whether  that  adapted  to  the  creation 
of  a  special  limitation  or  a  condition  subsequent,  it  will,  if  the 
contingency  referred  to  is  in  default  by  the  tenant,  be  construed 
as  creating,  an  estate  on  condition  subsequent,  and  not  one  on 
special  limitation.  In  two  or  three  states,  however,  the  former 
English  rule  appears  to  be  still  adhered  to,  the  provision  that  the 
lease  shall  be  void  or  shall  terminate  operating  according  to  its 
literal  meaning.^^ 


J.  Law,  521,  13  Atl.  39;  Fifty  Asso- 
ciates V.  Howland,  52  Mass.  (11 
Mete.)  99. 

88  Proctor  V.  Keith,  51  Ky.  (12  B. 
Mon.)  252.  But  in  Walker  v.  Dowl- 
ing,  24  Ky.  Law  Rep.  179,  68  S.  W. 
135,  it  is  decided  that  in  such  a 
case  the  default  ipso  facto  term- 
inated the  lease,  so  as  to  authorize 
forcible   detainer  proceedings. 

When  it  is  expressly  provided  that 
the  lease  shall  terminate  on  a  cer- 
tain contingency  at  the  option  of  the 
lessor,  there  is  obviously  a  condi- 
tion and  not  a  limitation.  Beach  v. 
Nixon,  9  N.  Y.  (5  Seld.)  35;  Low  v. 
Thompson,  58  Misc.  541,  109  N.  Y. 
Supp.  750. 

89  In  Maryland,  in  Shanfelter  v. 
Horner,  81  Md.  621,  32  Atl.  184,  it  is 
said  that  if  the  instrument  provides 
that  the  term  shall  come  to  an  end 
on  breach  of  a  condition  subsequent, 
it  does  so  ipso  facto.  And  Cooke  v. 
Brice,  20  Md.  397,  is  to  that  effect. 
In  Morrison  v.  Smith,  90  Md.  76,  44 
Atl.  1031,  it  was  decided,  on  a  con- 
struction of  the  instrument,  that  the 
lease  was  to  be  void  only  at  the  elec- 
ion  of  the  lessor,  implying  that  it 
would  be  absolutely  void  on  the  ten- 
ant's default,  if  so  intended.  Wes- 
tern Bank  v.  Kyle,  6  Gill  (Md.)  343, 
contains  a  dictum  in  accord  with  the 
modern     English     rule.       Compare 


Crean  v.  McMahon,  106  Md.  507,  68 
Atl.  265. 

In  New  York  there  are  decisions 
clearly  in  accord  with  the  modern 
English  rule.  Clark  v.  Jones,  1 
Denio  (N.  Y.)  516,  43  Am.  Dec.  706; 
Stuyvesant  v.  Davis,  9  Paige  (N.  Y.) 
427;  Chautauqua  Assembly  v.  Ailing, 
46  Hun  (N.  Y.)  582;  Horton  v.  New 
York  Cent.  R.  Co.,  12  Abb.  N.  C.  (N. 
Y.)  30;  Cohen  v.  Afro-American 
Realty  Co.,  58  Misc.  199,  108  N.  Y. 
Supp.  998.  But  there  are  at  least 
dicta  by  the  court  of  appeals  con- 
tra. Parmelee  v.  Oswego  &  S.  R.  Co., 
6  N.  Y.  (2  Seld.)  74;  Alleghany  Oil 
Co.  V.  Bradford  Oil  Co.,  21  Hun,  26, 
86  N.  Y.  638.  And  see  Estelle  v. 
Dinsbeer,  9  Misc.  487,  30  N.  Y.  Supp. 
243;  In  re  Schoelkopf,  54  Misc.  31, 
105  N.  Y.  Supp.  477,  apparently  to 
this  effect. 

In  Kansas,  when  a  lease  provided 
that  the  landlord  might  declare  the 
lease  at  an  end  and  retake  posses- 
sion on  default  in  the  rent,  to  be 
paid  in  advance,  and  the  landlord 
notified  the  tenant,  in  case  he  should 
fail  to  pay  the  rent  in  advance,  to 
remove  from  the  premises  within 
thirty  days,  it  was  held  that  the 
tenant,  failing  so  to  pay,  could  re- 
move from  the  premises  and  so  r^ 
lieve  himself  from  further  rent. 
The  court  says  that  the  notice  from 


§  194 


UNDER  EXPRESS  CONDITION.  1371 


e.  Conditions  against  particular  acts— (1)  Nonpayment  of 
rent.  It  is  not  feasible  to  state  all  the  acts  or  defaults  which 
may,  by  express  provision  in  the  lease,  be  made  ground  for  for- 
feiture of  the  tenant 's  interest.  The  more  important  of  them  only 
can  be  specifically  referred  to. 

The  failure  to  pay  rent  is  frequently  made  a  ground  of  for- 
feiture.^*^  The  failure  need  not  be  "willful,"  it  has  been  said,  in 
order  to  come  within  the  clause  of  forfeiture.^^ 

Though,  as  we  shall  see,  the  landlord  must,  at  common  law, 
make  a  demand  before  sunset  of  the  day  on  which  the  rent  is  due, 
in  order  to  be  able  to  assert  a  forfeiture  for  non-payment,''^  j^e 
cannot  actually  assert  the  forfeiture  until  after  midnight  on  that 
day,  there  being,  until  then,  no  breach  of  the  conditio.n.^^  And  if 
the  lease  provides  for  forfeiture  in  case  the  rent  remains  unpaid 
a  certain  period  of  time  after  it  becomes  due,  he  cannot  assert  the 
forfeiture  till  after  the  end  of  such  period.^^ 

the     landlord     presumably     meant  And  see  Ft.  Worth  &  D.  C.  R.  Co.  v. 

something.     But  it  is,  it  may  be  re-  Wooldridge    (Tex.)    108   S.  V/.   1159, 

marked,  difficult  to  see  "how  it  could  apparently  to  a  like  effect, 

change  what  was  previously  a  condi-  so  See   e.   g.,  Losch   v.   Pickett,   36 

tion    into   what   was   in   legal   effect  Kan.  216,  12  Pac.  822;  Morrill  v.  De 

a  limitation.     King  v.  Davies,  2  Kan.  la  Granja,  99  Mass.  383;   Winston  v. 

App.    634,    42    Pac.    942.        Compare  Franklin     Academy,     28     Miss.      (6 

Brown    v.    Cairns,    63    Kan.    584,    66  Cushm.)   118,  61  Am.  Dec.  540;  Hos- 

Pac.  639.  ford  v.  Ballard,  39  N.  Y.  147;  Chris- 

In  Gartland  V.  Hickman,  56  W.  Va.  tie's   Appeal,   85   Pa.    463;    Follin   v. 

75,  49  S.  B.  14,  67  L.  R.  A.  694,  it  Coogan,  12  Rich.  Law  (S.  C.)  44. 

is  said  to  have  been  decided  in  Guffy  si  Randolph  v.  Mitchell  (Tex.  Civ. 

V.  Hukill,  34  W.  Va.  49,  11  S.  E.  754,  App.)   51  S.  W.  297. 

8  L.  R.  A.  759,  26  Am.  St.  Rep.  901,  02  See  post,  §  194  f  (1). 

that    a   breach    of   a   condition   ipso  ss  Co.  Litt.  202  a;  New  York  Acad- 

facto  terminates  the  lease.     It  was,  emy  of  Music  v.  Hackett,  2  Hilt.  (N. 

however,  decided  in  the  earlier  case  Y.)    217.     See  ante,  §  172  h. 

merely  that  no  re-entry  is  necessary,  9*  Phillips  v.  Bridge,  L.  R.  9  C.  P. 

an   indication   of   intention   to   treat  48;    Jones    v.    Reed,    15    N.    H.    68. 

the  tenancy  as  terminated  being  suffi-  Where  the  lease  provided  for  a  dis- 

cient.  count  in  case  of  payment  within  five 

Andrews  v.  Erwin,  25  Ky.  Law  days  after  the  rent  became  due,  it 
Rep.  1791,  78  S.  W.  902,  is  also,  per-  was  held  that  there  could  be  no  re- 
haps,  to  the  effect  that  the  tenancy  entry  until  after  such  five  days, 
may  expire,  without  any  election  by  White  v.  McMurray,  2  Brewst.  (Pa.) 
the  landlord,  by  force  of  such  a  pro-  484. 
■vision  upon  a  default  by  the  tenant. 


1372  FORFEITURE  OF  LEASEHOLD.  §  194 

The  fr.et  that  a  debtor  has  a  valid  claim  against  his  creditor,  to 
the  full  extent  of  the  debt,  is  not  ordinarily  regarded  as  constitut- 
ing a  payment  of  the  debt,^^  and  so,  it  would  seem,  the  existence  of 
a  claim  in  favor  of  the  tenant  against  the  landlord  to  the  amount 
of  the  rent  due  should  not  prevent  a  forfeiture  for  nonpayment, 
unless  the  parties  have  agreed  that  it  shall  extinguish  the  claim 
for  rent.  There  are  decisions  to  this  effect,^^  and  also  to  the 
contrary  .^''^ 

A  tender  of  the  rent  when  due  will,  if  kept  good,  no  doubt  ex- 
clude a  right  of  forfeiture  for  nonpayment,  and  a  tender  made 
even  after  the  rent  day  might,  in  a  number  of  jurisdictions,  have 
that  effect.^"^*  It  was  in  one  case  decided  that  there  could  be  no 
forfeiture  on  account  of  failure  to  pay  an  installment  of  rent  when 
due,  owing  to  the  fact  that  the  landlord  resided  out  of  the  state 
and  had  no  agent  within  it,  it  being  tendered  five  days  later,  as 
soon  as  the  landlord  came  to  the  city  in  which  the  premises  were 
located.^'^''  And  likewise  it  was  held  that  a  forfeiture  was  not 
permissible  on  account  of  nonpayment  of  rent  in  advance,  as  pro- 
vided by  the  lease,  when  for  many  years  the  lessor  had  called  for 
the  rent  and  had  given  no  notice  that  he  would  cease  to  so  do.^''''' 

05  See  cases  cited  22  Am.  &  Eng.  plained    why    the    lessor    could    not 

Enc.  Law  (2d  Ed.)  576.  treat  the  check  as  a  partial  payment 

96  Borden    v.    Sackett,    113    Mass.  only. 

214;    Fillebrown  v.  Hoar,  124  Mass.  in  Beardsley  v.  Morrison,  18  Utah, 

580;  Faylor  v.  Brice,  7  Ind.  App.  551,  478,  56  Pac.  303,  72  Am.  St.  Rep.  795, 

34  N.  E.  833.     See  Morrill  v.  De  la  it  was  held  that  when  the  lessor  had 

Granja,  99   Mass.   383.  agreed    to    make    certain    improve- 

9T  Collins  V.   Karatopsky,   36  Ark.  ments,   but   refused    to   make    them, 

328;  Wilcoxen  v.  Hybarger,  1  Ind.  T.  whereupon  the  lessee  purchased  and 

138,  38  S.  W.  669;  New  York  El.  R.  placed  on  the  premises  lumber,  equal 

Co.  V.  Manhattan  R.  Co.,  63  How.  Pr.  in  value  to  the  rent  due,  in  order 

(N.  Y.)  14.  to  make  the  improvements  himself, 

In  Tipton  v.  Roberts,  48  Wash.  391,  since  the  lessee  had  the  right  in  such 

93  Pac.  906,  it  was  held  that  when  case  to  make  the  improvements  and 

the    lessee   made   repairs    necessary  charge   the   cost  to   the  lessor,  this 

to    make    the    premises    tenantable  extinguished  the  claim  for  rent,  so 

and,   deducting   the   amount   of   bis  ^^^^  ^   forfeiture   could   not   be   en- 

expenditures  in  this  regard  from  the  ^ 

.    ^        .  ,                      1.     1   *  forced, 
amount  of  rent  due,  gave  a  check  for 

the  balance,  and  this   was  retained  ''"  ^^«  P««t'  ^^  ^^^^^  ^^^'  3^^- 

by    the    lessor    for    more    than    two  "^^  Burnes    v.    McCubbin,    3    Kan. 

months,  there  could  be  no  forfeiture  221,  87  Am.  Dec.  468. 

as   for   nonpayment.     It    is   not  ex-  avc  Kentucky  Lumber  Co.  v.  New- 


§194 


UNDER  EXPRESS  CONDITION.  1373 


There  can  obviously  be  no  forfeiture  for  nonpayment  of  rent 
when,  by  reason  of  an  eviction,  or  for  any  other  reason,  there  is 
no  rent  due.^^ 

At  common  law  a  right  of  forfeiture  for  nonpayment  of  rent 
may  be  exercised  even  though  the  rent  is  paid,  if  the  payment  in 
not  made  until  after  the  time  when  it  is  due.^^ 

The  question  of  the  necessity  of  a  demand  for  rent  previous  to 
the  enforcement  of  a  forfeiture  by  reason  of  its  nonpayment,  as 
well  as  that  of  the  mode  of  enforcing  a  forfeiture,  is  hereafter 
considered. ^°° 

(2)  Nonpayment  of  taxes.  A  provision  for  forfeiture  in  case 
of  nonpayment  of  taxes  has  been  regarded  as  authorizing  an  as- 
sertion of  the  forfeiture  in  case  the  tenant  fails  to  pay  the  taxes 
in  the  ordinary  course  of  collection,  before  they  become  a  bur- 
den on  the  landlord  or  upon  the  land.^o^  But  the  fact  that  the 
tenant  refuses  in  good  faith  to  pay  more  than  a  portion  of  the 
whole  amount  claimed,  on  the  ground  that  he  is  advised  that  such 
portion  only  is  legally  due,  has  been  held  not  to  be  ground  for 
forfeiture.!"-  A  forfeiture  cannot  be  enforced,  it  has  been  held, 
for  breach  of  a  covenant  to  pay  all  taxes,  or  to  refund  to  the  les- 
sor the  amount  of  taxes  paid  by  him,  if  the  taxes  paid  by  the 
lessor  are  refunded  before  the  commencement  of  a  suit  to  enforce 
the  forfeiture. !°3 

According  to  some  decisions  a  forfeiture  for  nonpayment  of 
taxes  cannot  be  enforced  until  there  has  been  a  demand  by  the 

landlord  that  they  be  paid.^"^  But  other  cases  are  to  the  con- 
trary.i°5 

ell,  32  Ky.  Law  Rep.  396,  10.5  S.  W.       los  Burnes    v.    McCubbin,    3    Kan. 

972.     See  post,  §  194  i  (3).  221,  87  Am.   Dec.  468. 

98  See  Blair  v.   Claxton,   18  N.  Y.        io4  Kansas    City    Elevator    Co.    v. 

529;  Peck  v.  Hiler,  24  Barb.  (N.  Y.)  Union  Pac.  R.  Co.,  3  McCrary,  463, 

178.  17    Fed.    200;    Bowman    v.    Foot,    29 

90  See  post,  at  note  214.  Conn.  331   (dictum);   Meni  v.  Rath- 

100  See  post,  §  194  f,  j.  bone,    21    Ind.    454;    Eichenlaub    v. 

101  Allen  V.  Dent,  72  Tenn.  (4  Lea)  Neil,  3  Ohio  Dec.  365.  In  Carpenter 
676;  Taylor  v.  Jermyn,  25  U.  C.  Q.  v.  Wilson,  100  Md.  13,  59  Atl.  186, 
B.  86.  As  to  covenants  to  pay  taxes,  this  view  is  adopted  and  applied  to 
see  ante,  §  143.  a  forfeiture  for  nonpayment  of  v/a- 

102  New  York  El.  R.   Co.  v.  Man-  ter  rent. 

hattan  R.  Co.,  63  How.  Pr.  (N.  Y.)  los  Davis  v.  Burrell,  10  C.  B.  822; 
14.  See  Eberts  v.  Fisher,  54  Mich.  Taylor  v.  Jermyn,  25  U.  C.  Q.  B.  86; 
294,  20  N.  W.  80.  Byrane  v.  Rogers,  8  Minn.  281  (Gil. 


1374 


FORFEITURE  OF  LEASEHOLD.  §  194 


A  tenant  of  a  part  of  a  building  is  entitled,  it  has  been  decided, 
to  an  apportionment  of  the  water  rates  on  the  whole  building,  or 
to  an  ascertainment  in  some  other  way  of  the  portion  which  is 
due  with  respect  to  his  particular  premises,  before  a  forfeiture 
can  be  asserted  against  him  for  nonpayment.i<>s 

(3)  Failure  to  repair.  In  England,  where  the  imposition  upon 
the  lessee  of  an  obligation  to  repair  is  much  more  frequent  than 
in  this  country,  the  instrument  of  lease  ordinarily  provides  for  a 
forfeiture  upon  a  default  in  this  respect.  In  order  to  enforce  a 
forfeiture  for  this  cause,  it  is  not  necessary  that  the  landlord  shall 
first  have  notified  the  tenant  to  repair.i^^^ 

It  has  been  held  that  a  provision  for  forfeiture  in  case  the  re- 
pairs are  not  executed  to  the  satisfaction  of  a  representative  of  the 
lessor  does  not  authorize  a  forfeiture  if  the  representative  ought  to 
be  satisfied  with  the  repairs  as  made.i'^s 

It  is  no  defense  to  the  claim  of  forfeiture  that  the  premises  have 
become  out  of  repair  owing  to  their  occupation  by  troops  in  time 
of  Avar.^^^ 

As  before  stated,  there  is  a  decision  to  the  effect  that  a  condition 
of  re-entry,  if  the  lessee  "do  or  cause  to  be  done"  anything  in 
violation  of  his  covenants,  does  not  apply  in  case  of  a  mere  fail- 
ure to  repair,  though  this  involves  the  violation  of  a  covenant.^i" 

(4)  Assignment  and  subletting.  The  act  of  the  lessee  in  assign- 
ing, or  in  assigning  without  the  lessor's  assent,  is  frequently  made 
a  ground  of  forfeiture." ^  The  condition  against  assignment  is,  in 
such  case,  it  seems,  to  be  construed  in  the  same  way  as  when  there 
is  merely  a  covenant  against  assignment.^^^    -por  instance,  it  does 

247) ;    Bacon  v.  Park,  19  Utah,  246,  loa  Moyer  v.  Mitchell,  53  Md.  171. 

57  Pac.  28;  Metropolitan  Land  Co.  v.  no  See  ante,  at  note  75. 

Manning,  98  Mo.  App.  248,  71  S.  W.  in  See  e.  g.,  Brookes  v.  Drysdale, 

696;    Garner    v.    Hannah,    13    N.    Y.  3  ^    p    j^j^    53 ;   Holland  v.  Cole,  1 

Super.  Ct.    (6  Duer)   262,  disapprov-  ^^^^^    &  c.  67;   Kew  v.  Trainor,  150 

ing  dictum  in  Jackson  v.  Harrison,  ^^^    ^^^^  ^^  ^    ^    223;    Eldredge  v. 

17  Johns.  (N.Y.)   66.  ^^                         ^^    ^    ^    ^^ 

106  Harford    v.    Taylor,    181    Mass.  '           ,.       ,„         „      ^           ,      . 
266    63  N.  E.  902.  Indianapolis     Mfg.      &     Carpenters 

107  Few  V.  Perkins,  L.  R.   2  Exch.  Union   v.   Cleveland,    C,   C.   &   I.   R. 
92-  Baylis  v.  Le  Gros,  4  C.  B.  (N.  S.)  Co.,  45  Ind.  281;  Keeler  v.  Davis,  12 
537;  Connell  v.  Power,  13  U.  C.  C.  P.  N.  Y.  Super.  Ct.  (5  Duer)  507. 
g-j^  112  See  Bristol  Corp.  v.  Westcott, 


108  Doe  d.  Baker  v.  Jones,  2  Car.  &    12  Ch.  Div.  461. 
K.  743. 


§  194  UNDER  EXPRESS  CONDITION.  1375 

not  extend  to  an  assignment  by  operation  of  law,  as  upon  the  death 

or  bankruptcy  of  the  lessee/ ^^  unless  expressly  so  provided.     A 

voluntary  assignment  for  the  benefit  of  creditors  has  been  decided 

not  to  be  an  assignment  by  operation  of  law  within  this  excep- 
tion.114 

In  states  where  a  mortgage  transfers  the  legal  title,  a  mortgage 
by  the  lessee  would  be  within  such  a  forfeiture  clause,^^^  but  a 
mere  equitable  charge  is  not,ii^  nor  would  a  mortgage  be  within 
such  a  clause  in  states  where  it  creates  a  lien  merely,  without  ef- 
fecting a  transfer  of  the  legal  title.ii^  a  forfeiture  is  not  incurred 
if  the  assignment  turns  out  to  be  invalid.^is  j^j^^  there  is  no 
forfeiture  if  the  instrument  of  assignment  is  not  delivered.^i^ 

The  common-law  rule  that  a  license  to  assign,  once  given,  does 
away  altogether  with  the  condition  against  assignment,  so  that 
there  is  subsequently  no  restriction  upon  the  right  of  assignment, 
has  been  elsewhere  considered.^^o 

A  condition  against  subletting,  or  what  is  its  equivalent,  a  pro- 
vision for  forfeiture  upon  breach  of  the  covenant  against  sublet- 
ting, is  not  infrequently  inserted  in  the  instrument  of  lease.  It 
has  in  England  been  decided  that  a  mere  agreement  to  sublet,  if 
enforcible  by  specific  performance,  constitutes  cause  for  for- 
feiture in  such  case. 121 

(5)  Bankruptcy.  In  England  there  is  quite  frequently  a  pro- 
vision for  forfeiture  upon  the  bankruptcy  of  the  tenant,  and  such 
a  provision  has  been  decided  to  be  perfectly  valid.122 

A  provision  for  forfeiture  in  case  the  lessee,  or  his  executors, 
administrators  or  assigns,  shall  become  bankrupt,  has  been  held 
not  to  apply  when  the  lessee  becomes  bankrupt  after  having  as- 
signed the  term.123     g^ch  a  provision  was  regarded  as  applicable 

113  Farnum  v.  Hefner,  79  C?l.  575,  no  Farnum  v.  Hefner,  92  Cal.  542, 
21  Pac.  955,  12  Am.  St.  Rep.  174;  Id.,    28  Pac.  602. 

92  Cal.  542,  28  Pac.  602.  120  See  ante,  §  152  1. 

114  Holland  v.  Cole,  1  Hurl.  &  C.  121  Eastern  Tel.  Co.  v.  Dent,  78 
67.  Law  T.  (N.  S.)  713,  jt.  afd.  [1899]  1 

115  See  Becker  v.   Werner,    98   Pa.  Q.  B.  835. 

555,  and  ante,  §  152  c,  note  87.  122  Roe    d.    Hunter    v.    Galliers,    2 

116  Bowser  v.   Colby,  1   Hare,  109.  Term    R.    1,33 ;    Gray,   Restraints   on 

117  See  ante,  §  152  c,  note  88.  Alienation  of  Prop.  §  101. 

118  Doe  d.  Lloyd  v.  Powell,  5  Barn.  123  Smith  v.  Gronow  [1891]  2  Q. 
&  C.  308,  313.  B.  394. 


;^376  FORFEITURE  OF  LEASEHOLD.  §  194 

in  case  of  the  bankruptcy  of  the  survivor  of  certain  executors  to 
whom  the  tenant  bequeathed  the  premises  in  trust. ^  24 

(6)  Use  and  care  of  the  premises.  There  is  not  infrequently 
a  provision  for  re-entry  in  case  a  particular  use  is  made  of  the 
premises/25  or  in  case  it  is  used  for  a  purpose  other  than  that 
named.126  n  ^^s  been  held  that  a  provision  for  re-entry  in  case 
the  lessee  occupies  the  premises,  or  allows  them  to  be  occupied, 
for  an  unlawful  purpose,  applies  when  such  occupation  is  by 
a  subtenant.^ 27 

Occasionally  there  is  a  provision  for  re-entry  for  failure  to  cul- 
tivate the  premises  in  certain  specified  modes.i^s  And  so  there 
may  be  such  a  provision  in  case  the  lessee  fails  to  do  certain 
things  upon  the  premises.^29 

(7)  Abandonment  of  the  premises.  The  instrument  of  lease 
sometimes  stipulates  for  forfeiture  in  case  of  abandonment  of  the 
premises  by  the  tenant-^^"^  Abandonment,  it  is  said,  is  a  question 
of  intention,  to  be  determined  from  the  acts  and  declarations  of 
the  tenant.131 

It  was  held  that  when  the  lease  was  executed  with  the  under- 
standing that  the  tenant  should  let  fur.nished  rooms,  a  vacancy 
did  not  occur  within  a  provision  for  forfeiture  in  case  of  "vacan- 
cy" merely  because  the  lessee  went  to  reside  in  another  building 

124  Doe  d.  Bridgman  v.  David,  1  434;  Wheeler  v.  Earle,  59  Mass.  (5 
Cromp.  M.  &  R.  405.  Gush.)    31,  51  Am.  Dec.  41.     But  in 

125  Toleman  v.  Portbury,  L.  R.  5  Healy  v.  Trant,  81  Mass.  (15  Gray) 
Q.  B.  288;  Mulligan  v.  Hollings-  312,  a  different  effect  was  given  to  a 
worth,  99  Fed.  216;  Sell  v.  Branen,  statute  avoiding  a  lease  for  an  un- 
70  111-   App.  471;    Miller  v.  Prescott,  lawful  use  of  the  premises. 

163  Mass.  12,  39  N.  E.  409,  47  Am.  iss  See   Patton   v.   Bond,    50    Iowa, 

St.  Rep.  434;   Sommers  v.  Reynolds,  508;  Prettyman  v.  Hartly,  77  111.  265. 

103  Mich.  307,  61  N.  W.  501;    Shep-  129  Boston   El.   R.   Go.   v.   Grace   & 

ard  v.  Briggs,  26  Vt.  149.  Hyde  Go.,  50  G.  C.  A.  239,  112  Fed. 

126  Marsh  v.  Bristol,  65  Mich.  378,  279;  Winn  v.  State,  55  Ark.  360,  18 
32    N.    W.    645.     A    proviso    for    re-  S.  W.  375. 

entry  in  case  the  premises  are  occu-  130  See  Woodward  v.  Mitchell,  140 

pied  otherwise  than  as  a  saloon  and  Ind.   406,  39   N.   E.   437;    Jackson  v. 

dwelling    does    not    authorize    a    re-  Elsworth,    20    Johns.    (N.    Y.)    180; 

entry   merely   because   a    liquor    lie-  Hagan  v.  Gaskill,  42  N.  J.  Eq.  215, 

ense  is  refused  the  lessee.     Teller  v.  6  Atl.  879. 

Boyle,  132  Pa.  56,  18  Atl.  1069.  "i  Marshall  v.  Forest  Oil  Co.,  198 

127  Miller    v.    Prescott,    163    Mass.  Pa.  83,  47  Atl.  927. 
12,    39  N.   E.   409,   47   Am.   St.   Rep. 


§  194  UNDER  EXPRESS  CONDITION.  I377 

for  the  purpose  of  taking  table  boarders,  leaving  lodgers  in  the 
one  leased  to  him.132 

f.  Demand  of  rent — (1)  Necessity  at  common  law.  In  order 
that  the  landlord  may  enforce  a  forfeiture  for  failure  to  pay  rent, 
under  a  clause  in  the  instr anient  of  lease  authorizing  him  so  to 
do,  it  is,  at  common  law,  necessary  that  he  shall  previously  have 
made  a  demand  for  the  payment  of  the  rent,i33  and  this  demand 
must  be  made  in  strict  compliance  with  certain  technical  require- 
ments. 

The  fact  that  the  tenant  has  been  i.n  the  habit  of  seeking  the 
landlord  to  pay  the  rent  does  not  relieve  the  landlord  from  the 
necessity  of  making  formal  demand  as  preliminary  to  a  forfeit- 
ure.134  In  one  state,  however,  it  has  been  decided  that  where  there 
had  been  repeated  demands  for  the  rent,  and  the  claim  had  not 
been  disputed,  a  compliance  with  the  common-law  formalities  was 
unnecessary.135  And  a  disclaimer  by  the  tenant  and  assertion 
of  title  in  himself  has  been  held  to  dispense  with  the  necessity  of 
a  demand.^36 

The  demand  must  be  made  on  the  very  day  on  which  the  rent 
becomes  due,i37  unless  the  lease  provides  that  the  right  of  re- 

132  Burhans  v.  Monier,  38  App.  Pa.  273,  50  Atl.  764,  88  Am.  St.  Rep. 
DIv.  466,  56  N.  Y.   Supp.  632.  809. 

133  Bro.  Abr.,  Demaunde,  pi.  19;  135  Follin  v.  Coogan,  12  Rich.  Law 
Co.  Litt.  202  a;  Kidwelly  v.  Brand,  (S.  C.)  44.  And  In  Lund  v.  Ozanne, 
Plowd.  70;  Hill  v.  Kempshall,  7  C.  13  N.  M.  293,  84  Pac.  710,  it  was  held 
B.  975;  Wildman  v.  Taylor,  4  Ben.  that,  conceding  that  the  requirement 
42,  Fed.  Cas.  No.  17,654;  Bowman  as  to  demand  was  still  existent,  it 
V.  Foot,  29  Conn.  331;  Cole  v.  John-  could  not  be  asserted  if  there  was  a 
son,  120  Iowa,  667,  94  N.  W.  1113;  tender  of  a  certain  sum  at  the  les- 
Chapman  v.  Wright,  20  111.  120;  Jen-  sor's  residence,  where  the  rent  had 
kins  V.  Jenkins,  63  Ind.  415,  30  Am.  invariably  been  paid,  and  it  was  re- 
Rep.  229;  Chandler  v.  McGinning,  8  fused  as  being  less  than  the  sum 
Kan.   App.    421,   55   Pac.    103;    Mac-  due. 

kubin  V.  Whetcroft,  4  Har.  &  McH.  i36  Jackson   v.    Collius,    11    Johns. 

(Md.)     135;     Poterie     Gas     Co.     v.  (N.   Y.)    1;    Jackson   v.   Vincent,    4 

Poterie.    179    Pa.    68,    36    Atl.    232;  Wend.   (N.  Y.)    633. 

Parks  V.  Hays,  92  Tenn.  161,  22   S.  137  Co.  Litt.  202  a;  Doe  d.  Forster 

W.  3;  Godwin  v.  Harris,  71  Neb.  59,  v.  Windlass,  7  Term  R.  117;    Prout 

98  N.  W.  439;  Willard  v.  Benton,  57  v.   Roby,   82   U.   S.    (15   Wall.)    471; 

Vt.    286;    Johnston   v.    Hargrove,    81  Chlpman  v.  Emeric,  3  Cal.  273;  Baw- 

Va.  118;  Bowyer  v.  Seymond,  13  W.  man   v.    Foot,    29   Conn.    331;    Chap- 

Va.  12.  man  v.  Kirby,  49  111.  211;  Goodwin  v. 

134  Rea  V.  Eagle  Transfer  Co.,  201  Harris,   71   Neb.   59,  98   N,   W.   439; 

L.  and  Ten.  87. 


1378 


FORFEITURE  OF  LEASEHOLD. 


194 


entry  shall  accrue  only  if  the  rent  remains  unpaid  a  certain  num- 
ber of  days  after  it  becomes  due,  in  which  case  the  demand  must 
be  made  on  the  last  of  the  days  a  payment  on  which  could  save 
a  forfeiture. ^38  Furthermore,  the  demand  must  not  only  be  made 
on  that  day,  but  it  must  also  be  made  at  such  a  convenient 
time  before  sunset  that  the  money  can  be  counted,i39  and  a  de- 
mand made  earlier  in  the  day,  or  at  half  past  ten,i40  ^^  one,^^^ 
or  at  three, 142  o'clock,  has  been  regarded  as  insufficient.  The 
demand  must,  it  seems,  be  continued  till  sunset,  by  the  action  of 
the  person  making  it,  either  in  remaining  on  the  land  till  that 
time  or  in  then  returning  thereto.^^^ 

The  demand  must  be  made  at  the  place  named  by  the  lease 
for  the  payment  of  the  rent,^^^  and  if  no  place  is  named,  then  on 


McCormick  v.  Connell,  6  Serg.  &  R. 
(Pa.)  151;  Boyd  v.  Talbert,  12  Ohio, 
212;  Willard  v.  Benton,  57  Vt.  286. 
138  Hill  V.  Grange,  Plowd.  173; 
Doe  d.  Wheeldon  v.  Paul,  3  Car.  & 
P.  613;  Acocks  v.  Phillips,  5  Hurl. 
&  N.  183;  Camp  v.  Scott,  47  Conn. 
366;  Johnston  v.  Hargrove,  81  Va. 
118;  Jackson  v.  Harrison,  17  Johns. 
(N.  Y.)  66;  "Van  Rensselaer  v.  Jew- 
ett,  2  N.  Y.  (2  Comst.)  141,  51  Am. 
Dec.  275;  note  (16)  to  Duppa  v. 
Mayo,  1  Wms.  Saund.  286  a. 

In  McQuesten  v.  Morgan,  34  N.  H. 
400,  it  is  decided  that  the  demand 
is  not  sufficient  if  made  on  an  inter- 
mediate day,  but  it  is  suggested  that 
it  is  good  if  made  either  on  the  day 
on  which  the  rent  falls  due  or  on  the 
last  day  on  which  it  may  be  paid 
in  order  to  save  a  forfeiture.  The 
authorities  do  not  generally  state 
that  the  landlord  has  an  option  as 
to  which  of  the  two  days  he  shall 
choose  for  the  demand. 

139  Co.  Litt.  202  a;  Duppa  v.  Mayo, 
1  Wms.  Saund.  287;  Tinckler  v. 
Prentice,  4  Taunt.  549;  Bowman  v. 
Foot,  29  Conn.  331;  Chadwick  v. 
Parker,  44  111.  326;  Jenkins  v.  Jen- 
kins, 63  Ind.  415,  30  Am.  Rep.  229; 


Chapman  v.  Harney,  100  Mass.  353; 
McQuesten  v.  Morgan,  34  N.  H.  400; 
Johnston  v.  Hargrove,  81  Va.  118; 
Jones  V.  Reed,  15  N.  H.  68;  Van 
Rensselaer  v.  Jewett,  2  N.  Y.  (2 
Comst.)  141,  51  Am.  Dec.  275;  Smith 
V.  Whitbeck,  13  Ohio  St.  471.  A 
showing  that  a  demand  was  made 
"in  the  afternoon"  of  the  proper  day 
is  insufficient.  Jackson  v.  Harrison, 
17  Johns.  (N.  Y.)  66;  Smith  v.  Whit- 
beck, 13  Ohio  St.  471. 

140  Acocks  V.  Phillips,  5  Hurl.  &  N, 
183. 

1*1  Doe  d.  Wheeldon  v.  Paul,  3  Car. 
&  P.  613;  Jenkins  v.  Jenkins,  63  Ind. 
415,  30  Am.  Rep.  229;  Smith  v.  Whit- 
beck, 13  Ohio  St.  471. 

142  Bacon  v.  Western  Furniture 
Co.,  53  Ind.  229. 

i4"  Wood  V.  Chivers,  4  Leon.  179. 
See  Duppa  v.  Mayo,  1  Wms.  Saund. 
276;  Fabian  v.  Winston,  Cro.  Eliz. 
209;  Smith  v.  Whitbeck,  13  Ohio  St. 
471;  Doe  d.  Wheeldon  v.  Paul,  3  Car. 
&  P.   613. 

144  Co.  Litt.  202  a;  Buskin  v.  Ed- 
wards, Cro.  Eliz.  415;  Boroughe's 
Case,  4  Coke,  72a;  Gage  v.  Bates, 
40  Cal.  384;  Bacon  v.  Western  Furn- 
iture Co.,  53  Ind.  229;   Van  Rensse- 


*  194  UNDER  EXPRESS  CONDITION.  1379 

the  land,  at  the  most  notorious  place  thereupon,!'*^  this  being  the 
front  door  of  the  dwelling  house,  if  there  is  one.^^^  The  fact  that, 
at  the  time  of  the  demand,  neither  the  tenant  nor  any  other  per- 
son is  present  on  the  land  to  receive  it,  does  not  affect  its  valid- 
ity-ji^'^  and  a  demand  has  been  decided  to  be  good  even  though 
made  of  a  stranger  who  happened  to  be  upon  the  land.^^^ 

The  demand  must  be  of  the  precise  sum  due,!^^  and  must  dis- 
close to  what  installment  of  rent  it  relates. ^^^  If  more  tha>n  one 
installment  is  di;ie,  it  must  relate  to  the  last  installment  only.^^i 

The  demand  may  be  made  by  either  the  landlord  or  by  his 
authorized  ageat,^^^  and  it  has  been  decided  that,  if  the  demand 
is  made  by  an  agent,  he  need  not  show  his  authority,  if  not  re- 

laer  v.  Jewett,  2  N.  Y.  (2  Comst.)  there  being  no  person  on  the  prem- 
141  51  Am.  Dec.  275;  Willard  v.  ises.  In  that  case  there  was  an  ex- 
Benton    57  Vt.  286.  press  provision  for  a  demand. 

145  prout  V.  Roby,  82  U.  S.  (15  i*?  Doe  d.  Brook  v.  Brydges,  2 
Wall.)   471;   Chadwick  v.  Parker,  44    Dowl.  &  R.  29. 

111.  326-  Eichart  v.  Bargas,  51  Ky.  i^y  Fabian  v.  Winston,  Cro.  Eliz. 
(12  B.  Mon.)  464;  Chapman  v.  Har-  209;  Doe  d.  Wheeldon  v.  Paul,  3  Car. 
ney,  100  Mass.  353;  Van  Rensselaer  &  P.  613;  Prout  v.  Roby,  82  U.  S.  (15 
V.  Jewett,  2  N.  Y.  (2  Comst.)  141,  51  Wall.)  471;  Wildman  v.  Taylor,  4 
Am.  Dec.  275;  Sperry  v.  Sperry,  8  Ben.  42,  Fed.  Cas.  No.  17,654;  Gage  v. 
N.  H.  477;  McQuesten  v.  Morgan,  34  Bates,  40  Cal.  384;  Bacon  v.  West- 
N.  Y.  400;  McCormick  v.  Connell,  6  em  Furniture  Co.,  53  Ind.  229; 
Serg.  &  R.  (Pa.)  151,  9  Am.  Dec.  Nowell  v.  Wentworth,  58  N.  H.  319; 
415;  Rea  v.  Eagle  Transfer  Co.,  201  Van  Rensselaer  v.  Jewett,  2  N.  Y. 
Pa.  273,  50  Atl.  764,  88  Am.  St.  Rep.  (2  Comst.)  147,  51  Am.  Dec.  275; 
809;   Willard  v.  Benton,  57  Vt.  286.    McCormick  v.  Connell,  6  Serg.  &  R. 

14C  Co.  Litt.  201  b;  McGlynn  v.  (Pa.)  151,  9  Am.  Dec.  415;  Johnston 
Moore,  25  Cal.  384,  85  Am.  Dec.  133;  v.  Hargrove,  81  Va.  118. 
Van  Rensselaer  v.  Jewett,  2  N.  Y,  iso  Fabian  v.  Winston,  Cro.  Eliz, 
(2  Comst.)  141,  51  Am.  Dec.  275;  209.  But  in  McLean  v.  Spratt,  20 
Smith  V.  Whitbeck,  13  Ohio  St.  471;  Fla.  515,  it  was  decided  that  a  de- 
Johnston  V.  Hargrove,  81  Va.  118.  mand    of    the    amount    of   rent    due 

147  Co.  Litt.  202  a;  Kidwelly  v.  without  naming  the  amount  or  specl- 
Brand,  Plowd.  70;  Chapman  v.  Kir-  fying  the  period  for  which  it  was 
by,  49  111.  211;  Prout  v.  Roby,  82  U.  due  was  sufficient. 
S.  (15  Wall.)  471;  Connor  v.  Brad-  isi  Scot  v.  Scot,  Cro.  Eliz.  73;  Doe 
ley,  42  U.  S.  (1  How.)  217;  Smith  v.  d.  Wheeldon  v.  Paul,  3  Car.  &  P. 
Whitbeck,  13  Ohio  St.  471;  McCor-  613;  Buford  v.  Weigel,  3  Ohio  Dec. 
mick  V.  Connell,  6  Serg.  &  R.   (Pa.)     55. 

151,  9  Am.  Dec.  415.     In  Mauser  v.        152  Roe  v.  Davis,  7  East,  363;  Van 
Dix,  8  De  Gex,  M.  &  G.  703,  it  was    Rensselaer    v.    Jewett,    2    N.    Y.     (2 
apparently     considered    that    a    de-    Comst.)   141,  51  Am.  Dec.  275. 
mand  off  the  premises  was  sufficient. 


1380  FORFEITURE  OF  LEASEHOLD.  §  I94 

quested  by  the  tenant  so  to  do.^^^  jf  the  demand  is  made,  not 
by  the  original  lessor,  but  by  a  transferee  of  the  reversion,  he 
must  notify  the  teaiant  of  the  transfer,  in  ease  the  latter  is  una- 
ware thereof. i^'* 

The  necessity  of  a  demand  may  be  dispensed  with  by  an  express 
stipulation  to  that  effect,  as  that  the  landlord  may  re-enter  for 
nonpayment  of  rent  without  any  demand,^^^  or  without  any  "legal 
or  formal  demand, "^^^  or,  it  has  been  decided,  without  any  "pre- 
vious notice.  "^^'''  And  a  provision  authorizing  a  re-entry  for  non- 
payment of  rent  within  a  certain  time  after  it  becomes  due,  "being 
demanded,"  has  been  regarded  as  dispensing  with  the  common- 
law  formalities  as  to  the  demand.^^^  The  same  effect  has  been 
given  to  a  provision  that,  on  nonpayment  of  rent,  the  tenancy 
shall  "at  once  and  without  notice  of  any  kind"  be  determined.^^^ 
In  one  case  a  demand  was  regarded  as  unnecessary  because  the 
rent  was  payable  at  the  office  of  a  firm  who  were  the  agents  of  the 
lessor  for  the  collection  of  the  rent.^*^*'     The  language  of  the  in- 

153  Roe  d.  West  v.  Davis,  7  East,  such  a  clause  the  tenancy  terminates 
363.  even    without   any   assertion   of   his 

154  O'Connor  v.  Kelly,  41  Cal.  432.  rights  by  the  landlord. 

155  Dormer's  Case,  5  Coke,  40  a;  leo  Singer  v.  Sheriff,  28  Pa.  Super. 
Goodright  v.  Cator,  2  Doug.  477;  Ct.  305.  The  reason  given  is  that 
Doe  d.  Harris  v.  Masters,  22  Barn.  &  "it  would  have  been  an  idle  perform- 
C.  490;  Lewis  v.  Hughes,  12  Colo,  ance  for  them  to  sit  in  their  own 
208,  12  Pac.  621;  Eichart  v.  Bargas,  office  and  demand  the  payment  of 
51  Ky.  (12  B.  Mon.)  462;  Fifty  As-  the  rent  from  themselves." 
sociates  v.  Rowland,  59  Mass.  (5  In  Union  Scale  Co.  v.  Iowa  Ma- 
Cush.)  214;  Sweeney  v.  Garrett,  2  chinery  &  Supply  Co.,  136  Iowa,  171, 
Disn.  (Ohio)  601;  Van  Rensselaer  v.  113  N.  W.  762,  125  Am.  St.  Rep.  250, 
Jewett,  2  N.  Y.  (2  Comst.)  141,  51  it  was  decided  that  no  demand  was 
Am.  Dec.  275.  necessary,    "as   the   rent   was    in    a 

156  Doe  d.  Harris  v.  Masters,  2  fixed  amount,  was  payable  In  ad- 
Barn.  &  C.  490.  vance  and  at  a  given  place,  to  wit, 

13T  Pendill   v.  Union   Min.   Co.,    64  at  the  (lessors')  place  of  business;" 

Mich.  172,  31  N.  W.   100;   Faylor  V.  distinguishing  Cole  v.  Johnson,   120 

Price,  7  Ind.  App.  51,  34  N.  E.  833.  Iowa,  667,  94  N.  W.  1113,  where  "no 

IBS  See  Phillips  v.  Bridge,  L.  R.  9  place    of    payment    was    designated, 

C.    P.    48,    per    Keating    and    Brett,  and    the    amount    of    rent    reserved 

J   j_  was  uncertain."     The  opinion  refers 

159  Shanfelter   v.    Horner,    81    Md.  to   the   statute   authorizing   a    sum- 

621,   32   Atl.   184.     In   this   case  the  mary  proceeding  for  nonpayment  of 

writer  of  the  opinion  appears  to  be  rent,   but   it    does   not   appear   that 

under    the    impression    that    under  such  was  the  form  of  the  proceeding 


S  194  UNDER  EXPRESS  CONDITION.  1381 

strument  will,  it  has  been  said,  be  construed,  if  possible,  in  favor 
of  the  tenant  in  this  regard.!"  ,     .,^      .^  ^^ 

The  tenant  cannot,  it  has  been  in  one  case  decided,  after  a  de- 
fault in  the  payment  of  rent,  waive  the  necessity  of  demand  siQce 
this  would  involve  in  effect  a  forfeiture  by  consent.^^^  in  this 
ca,se,  however,  the  rights  of  third  persons  were  involved.  It  third 
persons  are  not  concerned,  there  is  no  reason  why  the  require- 
ment of  a  demand  should  not  be  waived,  the  tenant  ha>;ing  a 
right  to  do  what  he  likes  with  his  leasehold,  even  to  surrendering 

it  to  the  landlord. 

(2)     Statutory  modification  of  requirement.    The  necessity  ot 
a  formal  demand  was  in  some  cases  obviated  by  St.  4  Geo.  2,  c.  2S, 
8  2  which  declared  that  "in  all  cases  between  landlord  and  ten- 
ant'   *     *     *     as  often  as  it  shall  happen  that  one-half  year  s 
rent  shall  be  in  arrear,  and  the  landlord  or  lessor,  to  whom  the 
same  is  due,  hath  right  by  law  to  re-enter  for  nonpayment  there- 
of such  landlord  or  lessor  shall  and  may,  without  any  formal  de- 
mand or  re-entry,  serve  a  declaratio.n  in  ejectment  for  the  recovery 
of  the  demised  premises."  This  statute,  furthermore,  after  author- 
izing service  by  posting  of  the  declaration  in  case  there  was  no  per- 
son on  the  premises  on  whom  it  could  be  served,  provided  m  effect 
that  in  case  of  judgment  against  the  defendant  for  nonpayment, 
if  it  were  made  to  appear  to  the  court  that  half  a  year's  rent 
was  due  before  service  of  the  declaration,  and  that  no  sulticient 
distress  was  to  be  found  on  the  premises  countervailing  the  ar- 
rears of  rent,  and  that  the  lessor  had  power  to  re-enter,  then  the 
landlord  could  recover  judgment  and  execution  in  the  same  man- 
ner as  if  the  rent  in  arrear  had  been  legally  demanded  and  a  re- 
entry made.     This  statute  has  been  recognized  as  in  force  in  at 
least  one  state,i33  and  there  are  in  several  states  enactments  of  a 
somewhat  similar  character,  the  requirement  of  insufficiency  of 
distress  being,  however,  ordinarily  omitted.i«*     Occasionally  the 

to   recover   possession,   and   the    re-  rent  or  more  is  in  arrear,  and  land- 

covery   of  possession  was  based  on  lord  has  subsisting  right  by  law  to 

the  express  language  of  the  lease.  re-enter    for    nonpayment    of    said 

161  Camp  V.  Scott,  47  Conn.  .375.  rent,   he   may   bring   an   action   for 

162  Gaskill  v.  Trainer,  3  Cal.  334.  possession,  and  service  of  the  sum- 

163  See  Campbell  v.  Shipley,  41  Md.  mons  in  the  action  shall  stand  in  the 
g^  place   of    a   demand   and    re-entry) ; 

164  Arkansas,  Kirby's  Dig.  St.  1904,  Illinois^  Kurd's  Rev.  St.  1905,  c.  80, 
§§4701,  4703  (Whenever  a  half  year's  §   4    (Whenever,   etc.,  he  may  com- 


1382 


FORFEITURE  OF  LEASEHOLD. 


§  194 


statute  in  terms  dispenses  with  the  necessity  of  a  formal  demand 
without  making  any  reference  to  the  action  by  which  the  for- 
feiture is  to  be  enforced.^ ^^  And  this  presumably  is  the  purpose 
and  effect  of  a  statute  providing  for  a  re-entry,  on  nonpayment  of 
rent,  after  notice  of  a  prescribed  number  of  days.^^^ 

It  has  been  decided  that  the  operation  of  a  statute,  thus  dis- 
pensing with  the  necessity  of  a  demand,  is  not  affected  by  the  fact 
that  the  lease  expressly  provides  for  a  demand.^^^ 

There  must,  under  the  English  statute,  be  a  lack  of  sufficient  dis- 


mence  action  of  ejectment  without 
any  formal  demand  or  re-entry) ; 
Minnesota  Rev.  Laws  1905,  §  3328 
(Substantially  same  as  Arkansas); 
Missouri  Rev.  St.  1899,  §§  4116,  4118 
(Substantially  same  as  Arkansas); 
27e-io  Jersey,  2  Gen.  St.  p.  1916,  §  7 
(Substantially  similar  to  English 
statute) ;  Neiv  York  Code  Civ.  Proc. 
§  1504  (Substantially  same  as  Ar- 
kansas. '  May  maintain  action  with- 
out any  demand  of  rent  or  re-entry. 
See  City  of  New  York  v.  Campbell, 
18  Barb.  (N.  Y.)  156;  Church  v. 
Hempsted,  27  App.  Div.  412,  50  N. 
Y.  Supp.  325;  Van  Rensselaer  v. 
Ball,  19  N.  Y.  100;  Ho-^ford  v.  Bal- 
lard, 39  N.  Y.  147;  Martin  v.  Rec- 
tor, 118  N.  Y.  476,  23  N.  E.  893,  16 
Am.  St.  Rep.  771);  North  Carolina 
Revisal  1905,  §  1983  (Same  as  Ar- 
kansas) ;  Oregon.  Bell  &  C.  Codes,  § 
338  (Substantially  same  as  Illi- 
nois); Virginia  Code  1904,  §  2796 
(If  right  of  re-entry  by  reason  of 
"any  rent  being  in  arrear,"  landlord 
may  serve  declaration  in  ejectment, 
"which  service  shall  be  in  lieu  of  a 
demand  and  re-entry."  See  John- 
stone V.  Hargrove,  81  Va.  118) ;  West 
Virginia  Code  1906,  c.  93,  §  16  (Same 
as  Virginia.  See  Bowyer  v.  Sey- 
mour, 13  W.  Va.  12). 

165  Nevada  Laws  1900,  §  3826  (Un- 
necessary to  demand  rent  on  day  on 
which  due  or  at  any  particular  time 


of  day,  but  it  may  be  made  at  any 
time  within  one  year) ;  Colorado 
Mills'  Ann.  St.  1891,  §  1973  (No  de- 
mand necessary  to  work  a  forfeiture 
for  nonpayment  of  rent). 

106  See  California  Civ.  Code,  §§  790, 
791,  793  (If  right  of  re-entry  given 
by  lease,  landlord  may  re-enter  after 
three  days'  notice,  or  may  bring  ac- 
tion without  notice) ;  Idaho  Civ. 
Code  1901,  §  2375  (Wherever  right  of 
re-entry  given  by  lease,  entry  may  be 
made  at  any  time  after  right  of  re- 
entry upon  three  days'  notice) ; 
Montana  Rev.  Civ.  Codes  1907,  §  4504 
(Same   as  Idaho). 

The  Illinois  statute  providing  for 
notice  of  a  certain  number  of  days 
in  order  to  terminate  the  tenancy  for 
nonpayment  of  rent  is  construed  as 
dispensing  with  a  formal  demand. 
(See  Chadwick  v.  Parker,  44  111. 
326;  Dodge  v.  Wright,  48  111.  382; 
Cone  V.  Woodward,  65  111.  477;  Leary 
V.  Pattison,  66  111.  203;  Woods  v. 
Soucy,  166  111.  407,  47  N.  E.  67),  as  is 
that  of  Indiana  giving  the  land- 
lord the  right  of  possession  in  case 
rent  payable  in  advance  is  not  paid 
(Ingalls  V.  Bissot,  25  Ind.  App.  130, 
57  N.  E.   723). 

167  Doe  d.  Scholefield  v.  Alexander, 
2  Maule  &  S.  525;  Doe  d.  Shrewsbury 
V.  Wilson,  5  Barn.  &  Aid.  363;  Camp- 
bell V.  Shipley,  41  Md.  81. 


^g^  UNDER  EXPRESS  CONDITION.  1383 

tress  on  the  premises  to  countervail  all  the  arrears  ^^^'/^^^  ^«* 
merely  insufficient  to  satisfy  half  a  year's  rent,  if  more  than  that 
is  due  168  But  if  the  outer  doors  of  the  premises  are  kept  locked, 
so  that  the  gX)ods  therein  cannot  be  distrained  o.n,  or  if  they  are 
concealed,  they  are  not  "to  be  found"  on  the  premises,  so  as  to 
preclude  the  operation  of  the  statute.^^^  If  a  distress  is  levied 
and  thereby  the  amount  due  is  reduced  to  less  than  the  six  months 
rent  required  by  the  statute,  the  statute  no  longer  applies  i^« 

ff  By  whom  forfeiture  may  be  asserted.  It  is  a  well  settled 
rule  of  the  common  law  that  a  right  of  re-entry  cannot  be  reserved 
in  favor  of  a  stranger  to  the  legal  interest  in  the  premises.^^i  It 
is  not  necessary,  however,  it  has  been  decided,  that  the  person  to 
whom  the  right  of  re-entry  is  reserved  have  a  reversiooi,  it  being 
valid  though  reserved  on  a  transfer  of  one's  entire  interest  m 
the  land.172 

At  common  law  a  grantee  of  the  reversion  could  not  enforce 
a  condition  reserved  upon  the  lease,  this  being  in  accord  with  the 
general  rule  that  a  right  of  entry  could  not  be  assigned.^^^  But 
by  St  32  Hen.  8,  c.  34,  it  was  enacted  that  grantees  and  assignees 
and  their  heirs, 'executors,  and  successors  should  have  such  like 
advantages  against  the  lessees,  their  executors,  administrators  and 
assigns  by  entry  for  nonpayment  of  rent,  or  for  doing  of  waste, 
or  other  forfeiture,  as  the  lessors  or  grantors  themselves,  or  their 

168  Cross  V.   Jordan.  8  Exch.   149.    er,  3  Fost.  &  F.  151;  Doe  d.  Haverson 
Formerly  the  New  York  statute  fol-    v.  Franks,  2  Car.  &  K.  678. 
lowed   the  language  of  the   English        ito  See  Shepherd  v.  Berger  [1891] 
statute   and   required   that   there   be    1  Q.  B.  597. 

an  inability  to  collect  the  rent  by  "i  Litt.  §  347;  Doe  d.  Barber  v. 
distress.  See  Jackson  v.  Collins,  11  Lawrence,  4  Taunt.  23;  Doe  d.  Bark- 
Johns  (N  Y.)  1;  Jackson  v.  Hoge-  er  v.  Goldsmith,  2  Cromp.  &  J.  674; 
boom  11  Johns.  (N.  Y.)  163;  Presby-  Doe.  d.  Barney  v.  Adams,  2  Cromp. 
terian  Congregation  v.  Williams,  9  &  J.  232.  But  see  McKissick  v. 
Wend.  (N.  Y.)  147;  Jackson  v.  Kipp,  Pickle,  16  Pa.  140,  to  the  effect  that 
3  Wend  (N.  Y.)  230;  Van  Rens-  a  condition  may  be  reserved  to  one 
selaer  v.  Hayes,  5  Denio  (N.  Y.)  477.  other  than  the  grantor  in  the  case 
That  there  was  such  inability  could  of  a  conveyance  in  fee. 
be  proven  by  affidavit,  without  actu-  172  Doe  d.  Freeman  v.  Bateraan,  2 
ally  making  a  distress.  Rogers  v.  Barn.  &  Aid.  168;  Van  Rensselaer  v. 
Lynds  14  Wend.  (N.  Y.)  172.  Ball,    19    N.    Y.    100.     Contra,    Ohio 

169  Doe   d.   Chippendale  v.   Dyson,    Iron  Co.  v.  Auburn  Iron  Co.,  64  Mmn. 
Moodv  &  M.  77;  Doe  d.  Cox  v.  Roe,  5    404,  67  N.  W.  221. 
Dowl   &  L    272;   Hammond  v.  Math-       "3  Litt.  §  347;  Co.  Litt.  214  a,  215  a. 


1384  FORFEITURE  OF  LEASEHOLD.  §  I94 

heirs,  should  have  had  or  enjoyed.  Under  this  statute  a  trans- 
feree of  the  reversioji  has  a  right  to  enforce  a  right  of  re-entry- 
reserved  in  the  lease/^^  provided  the  condition  is  one  of  a  char- 
acter affecting  the  land/^^  the  same  distinction  being  thus  adopt- 
ed in  regard  to  the  enforcement  of  a  condition  by  a  transferee  of 
the  reversion  as  in  regard  to  the  enforcement  of  a  covenant.!'^  A 
transferee  of  the  reat  alone  has  obviously  no  right  to  enforce  a 
forfeiture  for  any  purpose,  even  for  nonpayment  of  rent,  the  trans- 
fer of  the  rent  passing  neither  the  reversion  nor  the  right  of  en- 
try.i^t 

In  this  country  the  English  statute,  above  referred  to,  is  recog- 
nized as  in  force  in  some  jurisdictions;  and  in  others  there  are 
local  statutes  which  are  no  doubt  sufficient  to  give  the  transferee 
of  the  reversion  the  right  to  enforce  the  condition.i'^s,  179  The 
question  whether  a  particular  condition  is  such  as  to  affect  the 
land,  and  so  to  entitle  the  transferee  of  the  reversion  to  enforce  it, 
under  the  statute  of  32  Henry  8,  c.  34,  above  referred  to,  is  to  be 
determined,  no  doubt,  by  the  same  considerations  as  apply  in  the 
case  of  a  covenant  of  the  same  character.  That  is,  if  a  covenant 
by  the  lessee  to  do  or  not  to  do  a  particular  thing  affects  the  land, 
so  that  the  benefit  thereof  would  pass  to  a  transferee  of  the  re- 
version, the  benefit  of  a  condition,  giving  a  right  to  terminate  the 
tenancy  upon  the  doing  or  not  doing  of  such  a  thing,  would  also 
pass  to  a  transferee  of  the  reversion.^^° 

The  English  statute,  above  referred  to,  has  been  decided  not  to 
have  changed  the  common-law  rule  that  a  condition  is  not  appor- 
tionable  by  the  act  of  the  parties,  and  consequently  not  to  author- 
ize an  enforcement  of  the  condition  of  the  lease  by  one  to  whom 
the  reversion  in  part  only  of  the  premises  has  been  transferred.^ ^^ 

174  See  City  of  Baltimore  v.  White,        its,  179  See  ante,  §  149  b  (1). 

2  Gill   (Md.)    444;    Page  v.  Esty,  54  isf>  See    Verplanclv    v.    Wright,    23 

Me.    319;    Metropolitan   Land   Co.   v.  Wend.    (N.    Y.)    506,    where   it   was 

Manning,  98  Mo.  App.  248,  71  S.  W.  held  that  a  condition  not  to  cut  wood 

696.  ran   with  the   land,    and    Stevens  v. 

175  Co.  Litt.  215  a;  Stevens  v.  Copp,  Copp,  L.  R.  4  Exch.  20.  where  a  con- 
L.  R.  4  Exch.  20;  Stockbridge  Iron  dition  not  to  violate  the  game  laws 
Co.  V.  Cone   Iron  Works,  102  Mass.  was  held  not  to  run. 

80.  1^1  Co.  Litt.  215  a,  and  note;  Dum- 

iT6See  ante,  §  149  b  (2).  por's  Case,  4  Coke,  119  b;  Wright  v. 

17T  See  Huerstel  v.  Lorillard,  29  N.  Burroughes,  3  C.  B.  685;  Twynam  v. 

Y.  Super.  Ct   (6  Rob.)   260.  Pickard,   2   Bam.   &  Aid.   105;    Van 


§  194 


UNDER  EXPRESS  CONDITION. 


1385 


But  one  to  whom  a  partial  interest  in  the  reversion  in  the  whole 
premises  is  transferred,  as  by  a  concurrent  lease,  may  enforce  the 
eondition.182  And  the  rule  forbidding  the  apportionment  of  con- 
ditions has  never  been  applied  to  an  apportionment  by  act  of  the 
law,  as  when  the  reversion  in  different  parts  of  the  premises 
passes  to  different  persons  by  descent.^  ^-^ 

A  lessor,  cannot,  it  has  been  decided,  after  having  transferred 
the  reversion  in  the  land,  enforce  a  forfeiture  for  breach  of  a 
condition.isi  On  the  other  hand,  his  transferee  cannot  do  so 
unless  the  breach  occurred  in  his  own  time,  that  is,  after  the 
transfer  to  him.'^s  There  can  be  no  forfeiture,  it  has  been  de- 
cided, as  for  nonpayment  of  rent,  at  the  instance  of  a  transferee 
of  the  reversion,  if  the  tenant  refused  to  pay  rent  because  ignorant 
of  the  transfer,  and  he  was  not  informed  thereof.^ ^*5 

h.  Against  whom  forfeiture  may  be  asserted.  A  condition 
can  be  enforced  against  an  assignee  of  the  leasehold  interest,^^''' 
or  against  a  subtenant,' ^^  to  the  same  extent  as  against  the  orig- 


Rensselaer  v.  Jewett,  5  Denio  (N. 
Y.)  121;  Cruger  v.  McLaury,  41  N. 
Y.  219. 

182  Wright  V.  Burroughes,  3  C.  B. 

685. 

183  Co.  Litt.  215  a;  Dumpor's  Case, 
4  Coke,  119  b;  Lee  v.  Arnold,  4  Leon. 
27;  Winter's  Case,  3  Dyer,  308  b; 
Cruger  v.  McLaury,  41  N.  Y.  219. 

1x4:  Doe  d.  Marriott  v.  Edwards,  5 
Barn.  &  Adol.  1065,  3  Nev.  &  M.  193; 
City  of  Baltimore  v.  White,  2  Gill 
(Md.)    444. 

i85Fenn  v.  Smart,  12  East,  444; 
Hunt  V.  Bishop,  8  Exch.  675;  Crane 
V.  Batten,  23  Lav/  T.  220;  Godwin  v. 
Harris,  71  Neb.  59,  98  N.  W.  439; 
Moulton  V.  Lawson,  79  Neb.  720,  113 
N.  W.  244.  See  Small  v.  Clark,  97 
Me.  304,  54  Atl.  758.  This  seems  to 
be  ignored  in  two  Illinois  cases 
holding  that  the  lessor's  waiver  of 
a  forfeiture  on  account  of  matters 
prior  to  the  transfer  precludes  his 
transferee  from  asserting  a  forfeit- 
ure on  those  grounds,  they  thus  as- 
suming that,  apart  from  the  waiv- 


er, the  transferee  might  ,have  en- 
forced a  forfeiture  on  these  grounds. 
See  Watson  v.  Fletcher,  49  111.  498; 
McConnell  v.  Pierce,  210  111.  627,  71 
N.  E.  622. 

186  O'Connor  v.  Kelly,  41  Cal.  432. 

187  Main  v.  Green,  32  Barb.  (N.  Y.) 
448;  Reynolds  v.  Fuller,  64  111.  App. 
134;  Abrahams  v.  Tappe,  60  Md.  317; 
Carnegie  Natural  Gas  Co.  v.  Phila- 
delphia Co.,  158  Pa.  317,  27  AU.  951. 
But  persons  taking  the  leasehold  in- 
terest by  purchase  from  the  lessee 
for  a  valuable  consideration  are  not 
affected  by  a  verbal  agreement  for 
forfeiture  of  which  they  have  no 
notice.  Thompson  v.  Christie,  138 
Pa.  230,  20  Atl.  934,  11  L.  R.  A.  23G. 

188  Arnsby  v.  Woodward,  6  Barn. 
&  C.  519;  Hand  v.  Blow  [1901]  2  Ch. 
721;  Baldwin  v.  Wanzer,  22  Ont. 
612;  Brock  v.  Desmond  &  Co.  (Ala.) 
45  So.  665;  Frazier  v.  Caruthers,  44 
111.  App.  61;  Wheeler  v.  Earle,  59 
Mass.  (5  Cush.)  31,  51  Am.  Dec.  41; 
Miller  v.  Prescott,  163  Mass.  12,  39 
N.E.  409,  47  Am.  St.  Rep.  434;  Stees 


1386  FORFEITURE  OF  LEASEHOLD.  §  194 

inal  lessee.  The  lessee  cannot  affect  the  landlord's  right  of  re- 
entry by  making  an  assignment  or  a  sublease.  The  condition  is 
also  effective  as  against  one  having  a  lien  subsequent  to  the 
lease. ^^^ 

In  the  case  of  a  sublease,  the  act  of  the  subtenant,  if  in  violation 
of  a  condition  of  the  head  lease,  has  the  same  effect  as  the  act  of 
the  original  tenant,  in  enabling  the  head  landlord  to  enforce  a 
forfeiture,  not  only  against  such  subtenant,  but  also  against  his 
sublessor,  the  tenant,^  ^<^  or  against  a  subtenant  of  another  part  of 
the  premises.^^^  For  tliis  reason  it  is  a  proper  precaution,  for 
one  holding  under  a  lease  which  contains  a  clause  of  re-entry  for 
the  doing  of,  or  for  the  failure  to  do,  certain  classes  of  acts  on 
the  premises,  to  insert,  in  a  sublease  made  by  him,  a  covenant  by 
the  sublessee  to  perform  the  covenants  and  conditions  of  the  orig- 
inal lease,  the  effect  of  which  will  be  to  make  the  sublessee  liable 

to  indemnify  him  for  a  loss  of  the  term  in  case  of  a  failure  in  this 
respect.^^2 

A  clause  providing  that  the  lessor  may  assert  a  forfeiture  in 
case  the  lessee,  "his  successors  or  assigns,"  should  fail  to  perform 
the  covenants,  has  been  held  to  include,  under  the  expression 
"successors,"  the  executors  of  the  lessee. ^^^ 

i.  Waiver  of  right  to  assert  forfeiture — (1)  Recognition  of 
tenancy  as  still  existent — (a)  General  considerations.  As  be- 
fore stated,  the  question  whether  the  breach  of  a  condition  sub- 
sequent shall  have  the  effect  of  terminating  the  tenant's  estate  is 
ordinarily  a  matter  wholly  in  the  option  of  the  landlord,  that 
is,  the  landlord  may  or  may  not  enforce  a  forfeiture  for  such  a 
breach.     Sometimes,  however,  by  his  language  or  conduct  after 

V.  Kranz,  .*?2  Minn.  313,  20  N.  W.  241;  loi  Clarke    v.    Cummings,    5    Barb. 

Shannon  v.  Grindstaff,  11  Wash.  S36,  (N.  Y.)    339;    Gteer  v.  Boston  Little 

40  Pac.  123;   Ciischner  v.   Westlake,  Circle   Zinc   Co.,   126   Mo.   App.    173, 

43  Wash.  600,  86  Pac.  94S;    Eton  v.  103  S.  W.  151;  Darlington  v.  Hamil- 

Lvyster,  60  N.  Y.  252.     See  Peck  v.  ^^^   j^^y,  550;  Creswell  v.  Davidson, 

Insersoll,  7  N.  Y.   (3  Seld.)  528.     In  ^g  ^a^  ^    ^^ ^^   g^^ 


i»2  Hornby    v.    Cardwell,    8    Q.    B. 


Sutton's  Case,  12  Mod.  557,  there  is 

a  dictum  by  Holt,  C.  J.,  that  a  for 

feiture  of  the  estate  of  a  life  tenant    ^^^v.  329;  Wheeler  v.  Earle,  59  Mass. 

does  not  affect  his  les^see.  ^^  ^ush.)    31,  51  Am.  Dec.  41.     See 

189  See  post,  at  note^  319-321.  ante,  §  162,  at  note  529  a. 

looWheefer  v.  Earle,  59  Ma-^s.    (5        i»sWest   Shore  R.  Co.  v.  Wenner, 
Cuah.)   31,  51  Am.  Dec.  41;  Logan  v.    71  N.  J.  Law,  682,  60  Atl.  1134. 
Hall,  4  C.  B.  598. 


§  194 


UNDER  EXPRE^SS  CONDITION.  1387 


a  breach  of  condition,  he  elects  that  the  tenancy  shall  go  on  as 
before,  and  thereby  precludes  himself  from  thereafter  enforcing 
a  forfeiture,  that  is,  as  it  is  usually  expressed,  he  thereby 
' '  waives ' '  the  forfeiture.  Ordinarily,  if  the  landlord,  after  knowl- 
edge on  his  part  of  a  breach  of  condition  by  the  tenant,  does  any 
act  which  recognizes  the  tenancy  as  still  existent  in  spite  of  such 
breach,  he  thereby  precludes  himself  from  enforcing  a  forfeiture 
for  such  breach,! 9^  and  the  fact  that  he  did  not  intend,  by  such 
conduct,  to  waive  his  right  of  forfeiture,  is  immaterial  in  this  re- 
gard.^^^  A  case  might  perhaps  occur  in  which  actual  knowledge 
by  the  landlord  of  the  breach  of  condition  would  not  be  necessary 
in  order  that  his  conduct  might  take  effect  as  a  waiver,  the 
breach  being  such  that  he  is  chargeable  with  knowledge  there- 
of,!^^  but  ordinarily  actual  knowledge  is  necessary.^^^ 

(b)  Acceptance  of  rent.  The  most  usual  case  of  a  waiver 
of  a  right  of  forfeiture  occurs  as  a  result  of  the  acceptance  by 
the  landlord,  with  knowledge  of  an  act  of  forfeiture,  of  rent  w^hich 
has  accrued  since  that  act,  that  is,  since  the  breach  of  condition, 
such  acceptance  of  rent  being  necessarily  an  unequivocal  recog- 
nition of  the  continued  existence  of  the  tenaney.^^s     The  landlord 

194  Green's  Case,  Cro.  Eliz.  3;  Harvey  v.  Oswald,  Cro.  Eliz.  553, 
Ward  v.  Day,  4  Best  &  S.  337,  5  Best    572. 

&  S.  359;  Mathews'  Slate  Co.  v.  New  197  Pennant's  Case,  3  Coke,  64  a; 
Empire  Slate  Co.,  122  Fed.  972;  Roe  d.  Gregson  v.  Harrison,  2  Term 
Saner  v.  Meyer,  87  Cal.  34,  25  Pac.  R.  425;  McKildoe's  Ex'r  v.  Darra- 
153  (agreement  that  rent  overdue  cott,  13  Grat.  (Va.)  278.  And  see 
shall  be  paid  at  a  later  date) ;  Camp  authorities  cited  post,  note  207. 
v.  Scott,  47  Conn.  371;  "Williams  v.  "s  Marsh  v.  Ciirteys,  Cro.  Eliz. 
Vanderbilt,  145  111.  238,  34  N.  E.  47G,  528;  Goodright  v.  Davids,  Cowp.  803; 
21  L.  R.  A.  489,  36  Am.  St.  Rep.  486;  Arnsby  v.  Woodward,  6  Barn.  &  C. 
Garnhart  v.  Finney,  40  Mo.  449,  93  519;  Attalla  Min.  &  Mfg.  Co.  v.  Win- 
Am.  Dec.  303;  Ireland  v.  Nichols,  46  Chester,  102  Ala.  184,  14  So.  565; 
N.  Y.  413;  Norris  v.  Morrill,  40  N.  Mageon  v.  Alkire,  41  Colo.  338,  92 
H.  395;  McKildoe's  Ex'r  V.  Darracott,  Pac  720;  Hartford  Wheel  Club  v. 
13  Grat.  (Va.)  278;  Morrison  v.  Travelers'  Ins.  Co.,  78  Conn.  355,  62 
Smith,  90  Md.  76,  44  Atl.  1031  (Ac-  Atl.  207;  Watson  v.  Fletcher,  49  111. 
quiescence  in  tenant's  improve-  498;  Stover  v.  Hazelbaker,  42  Neb. 
ments).  393,   60  N.  W.   597;    Levy  v.   Black- 

195  Per  Cockburn,  C.  J.,  in  Tole-  more  (N.  J.  Eq.)  67  Atl.  1022;  Ire- 
man  V.  Portbury,  L.  R.  6  Q.  B.  245.  land  v.  Nichols.  46  N.  Y.  413;  Conger 
And  see  post,  at  note  199.  v.  Duryee,  90  N.  Y.  594,  43  Am.  Rep. 

196  See  language  of  Popham,  J.,  in  185;   Granite  Bldg.  Ass'n  v.  Greene. 


1388 


FORFEITURE  OF  LEASEHOLD. 


§  194 


cannot  prevent  this  result  by  asserting,  at  tlie  time  of  the  ac- 
ceptance of  rent,  that  this  is  not  to  operate  as  a  waiver.^^*  It 
may,  however,  be  so  agreed  by  the  parties,2oo  and  such  agreement 
may,  it  seems,  be  inferred  from  circumstances. 201 

It  is  immaterial,  it  seems,  by  whom  the  rent  is  paid,202  and  so 
it  has  been  held  that  its  acceptance  from  an  assignee  of  the 
lease  is  a  waiver  of  the  breach  of  a  condition  of  the  lease.^os  The 
acceptance  of  rent  must  necessarily,  in  order  thus  to  affect  the 
landlord,  be  by  him,204  or  by  some  person  authorized  to  act  for 


25  R.  I.  48,  54  All.  792;  Id.,  25  R.  I. 
586,  57  Atl.  649;  Smith  v.  Edgewood 
Casino  Club,  19  R.  I.  628,  35  Atl.  884, 
36  Atl.  128,  35  L.  R.  A.  790;  Maid- 
stone V.  Stevens,  7  Vt.  487;  Cuschner 
V.  Westlake,  43  Wash.  690,  86  Pac. 
948;  Pettygrove  v.  Rothschild,  2 
Wash.  St.  6,  25  Pac.  907;  Hukill  v. 
Myers,  36  W.  Va.  639,  15  S.  E.  151; 
Gomber  v.  Hackett,  6  Wis.  323,  70 
Am.  Dec.  467.  Meath  v.  Watson,  76 
111.  App.  516,  seems  contra. 

In  Michel  v.  O'Brien,  6  Misc.  408, 
27  N.  Y.  Supp.  173,  it  was  held,  on 
a  construction  of  the  particular  lan- 
guage used,  that  where  the  lease  pro- 
vided that  the  landlord  should  have 
the  right,  upon  the  use  of  the  prem- 
ises in  a  prohibited  manner,  to  term- 
inate the  lease,  and  "in  addition"  to 
recover  stipulated  damages  equal  to 
six  months'  rent,  acceptance  of  rent 
involved  a  waiver  of  the  right  of 
forfeiture  and  also  of  the  right  to 
recover  the  stipulated  damages. 

A  waiver  in  the  instrument  of 
lease  of  all  demand  for  rent,  re- 
entry, notice  to  quit  and  every  other 
formality,  does  not  preclude  the  ten- 
ant from  asserting  a  waiver  of  a 
right  to  forfeiture  by  the  acceptance 
of  rent.  Hartford  Wheel  Club  v. 
Travelers  Ins.  Co.,  78  Conn.  355,  62 
Atl.  207. 

199  Davenport  v.  Reg.,  3  App.  Cas. 


115;  Croft  v.  Lumley,  5  EI.  &  Bl.  648, 
6  H.  L.  Cas.  672;  Gulf,  C.  &  S.  P.  R. 
Co.  V.  Settegast,  79  Tex.  256,  15  S. 
W.  228.  But  see  Granite  Bldg.  Ass'n 
V.  Greene,  25  R.  I.  48,  54  Atl.  792. 

200  Miller  v.  Prescott,  163  Mar^s.  12, 
39  N.  E.  409,  47  Am.  St.  Rep.  434. 

201  This  seems  to  be  the  effect  of 
Medinah  Temple  Co.  v.  Currey,  162 
111.  441,  44  N.  E.  839,  53  Am.  St.  Rep. 
320;  Manice  v.  Millen,  26  Barb.  (N. 
Y.)  41.  The  case  of  Doe  d.  Cheny  v. 
Batten,  Cowp.  243,  from  which,  in  the 
former  case,  the  court  quotes  in 
support  of  the  statement  that  the 
question  whether  the  acceptance  of 
rent  constitutes  a  waiver  is  a  ques- 
tion of  intention,  is  of  doubtful  au- 
thority.    See  post,  §  205,  note  239. 

202  Pellatt  V.  Boosey,  31  Law  J.  C. 
P.  281  (provided  the  tenant  assent 
thereto). 

203  Doe  d.  Griffith  v.  Pritchard,  5 
Barn.  &  Adol.  765;  Whitchot  v.  Fox, 
Cro.  Jac.  398;  Gulf,  C.  &  S.  F.  R.  Co. 
V.  Settegast,  79  Tex.  256,  15  S.  W. 
228;  O'Keefe  v.  Kennedy,  57  Mass. 
(3  Cush.)  325.  As  to  waiver  of 
breach  of  condition  against  assign- 
ment, see  ante,  §  152  j    (3). 

204  Crouch  V.  Wabash,  St.  L.  &  P. 
R.  Co.,  22  Mo.  App.  315;  Koehler  v. 
Brady,  78  Hun,  443,  29  N.  Y.  Supp. 
388;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Set- 
tegast, 79  Tex.  256,  15  S.  W,  228. 


§  194  tJNDER  EXPRESS  CONDITION.  1389 

liim,-''5  but  payment  into  the  landlord's  bank  account  has  been 
regarded  as  sufficient  for  this  purpose,  when  this  was  the  usual 
mode  of  paying  the  rent,  though  the  landlord  had  instructed  the 
bank  not  to  receive  it,  no  steps  being  taken  to  inform  the  tenant 
that  he  would  not  receive  the  rent,  nor  to  return  it.^o^  it  is  nec- 
essary, as  in  other  cases  of  waiver,  that  notice  of  the  act  of  for- 
feiture be  brought  home  to  the  landlord.^o^  or,  at  least,  in  the 
case  of  an  asserted  waiver  by  an  age  at  having  authority  for  that 
purpose,  to  such  agent. ^os 

The  payment  need  not  be  in  cash,  but  the  allowance  by  the 
landlord  of  a  credit  on  the  rent  is  sufficient.-^^  And  an  indication 
of  a  readiness  to  accept  the  rent,  accompanied  by  a  failure  so  to 
do,  occasioned  merely  by  inability  to  make  change,  has  been  re- 
garded as  constituting  a  waiver.^io 

Though  ordinarily  the  acceptance  of  rent  accruing  after  the  act 
of  forfeiture  thus  constitutes  a  waiver,  this  has  been  held  not  to 
be  the  case  if,  before  the  acceptance  of  rent,  the  landlord  had 

205  Doe  d.  Nash  v.  Birch,  1  Mees.  West  Shore  R.  Co.  v.  Wenner,  70  N. 

&  W.  402,  where  it  was  decided  that  J.  Law,  233,  57  Atl.  408,  103  Am.  St, 

one  having  authority  to  receive  the  Rep.  801;   Id.,  71  N.  J.  Law,  682,  60 

rent  has  no  authority  to  waive  the  Atl.   1134.     See  ante,    §   152   f,   note 

forfeiture.  119. 

2oe  Pierson    v.    Harvey,    1    Times        In  Walker  v.  Wadley,  124  Ga.  275, 

Law  R.  430.  52  S.  E.  904,  it  is  said  that  "where 

207  Silva  V.  Campbell,  84  Cal.  420,  the  lessor  is  ignorant  of  an  assign- 

24  Pac.  316;   Walker  v.  Wadley,  124  ment  of  the  lease  for  the  full  term 

Ga.  275,  52  S.  E.  904;  Kew  v.  Train-  of    the    tenancy,    acceptance    of    the 

or,   50  111.  App.   629;   Jackson  v.  Al-  rent  with   knowledge  limifed  to  in- 

len,  3  Cow.   (N.  Y.)   220;   Walker  v.  ferences    drawn    from    facts    which 

Engler,     30     Mo.     130;     Jackson     v.  give    no   information   as   to   the   ex- 

Brownson,   7  Johns.    (N.  Y.)    227,   5  istence  of  a  written  assignment  of 

Am.  Dec.  258;  Keeler  v.  Davis,  12  N.  the  lease  for  the  full  term  will  not 

Y.   Super.  Ct.    (5   Duer)    507;    Maid-  extend  the  waiver  to  the  full  periocJ 

stone  v.  Stevens,  7  Vt.  487.  of    the    term    covered    by    the    lease 

In  a  jurisdiction  where  a  mort-  assigned."  The  present  writer  con- 
gage  does  not  involve  a  transfer  of  fesses  his  inability  to  comprehend 
the    legal    title,    acceptance   of    rent  this  statement. 

with  knowledge  of  the  making  of  a        20s  See  Mulligan  v.  HollingswDrth, 

mortgage  by  the  lessee  does  not  con-  99  Fed.  216;  Doe  d.  Nash  v.  Birch,  1 

stitute  acceptance  with  knowledge  of  Mees.  &  W.  402. 

a    breach    of    a    condition    against        209  Brooks  v.  Rogers,  99  Ala.   433, 

transfer,  so  as  to  preclude  the  asser-  12  So.  61. 

tion  of  a  forfeiture  on  account  of  a        210  Gradle  v.  Warner,  140  111.  123, 

subsequent  sale  under  the  mortgage.  29  N.  E.  1118,  S3  Am.  St.  Rep.  290. 


1390 


FORFEITURE  OF  LEASEHOLD. 


§  194 


instituted  an  action  of  ejectment  for  the  purpose  of  enforcing 
the  forfeiture,  this  being  regarded  as  an  irrevocable  assertion  of 
a  purpose  to  terminate  the  tenancy .-^^  And  the  acceptance  of 
rent,  paid  by  the  lessee  in  accordance  with  the  terms  on  which 
his  appeal  is  allowed,  in  proceedings  by  the  landlord  to  recover 
possession,  is  not  regarded  as  constituting  a  waiver.212 

The  acceptance  of  re^it  which  accrued  before  the  act  of  for- 
feiture does  not  effect  a  waiver,  since  this  does  not  involve  any 
recognition  of  the  continuance  of  the  tenancy.^i^ 


211  Doe  d.  Morecraft  v.  Meux,  1 
Car.  &  P.  346;  Jones  v.  Carter,  15 
Mees.  &  W.  718;  Big  Six  Develop- 
ment Co.  v.  Mitchell  (C.  C.  A.)  138 
Fed.  279,  1  L.  R.  A.  (N.  S.)  332; 
Cleve  v.  Mazzoni,  19  Ky.  Law  Rep. 
2001,  45  S.  W.  88.  But  see  Marshall 
V.  Davis,  28  Ky.  Law  Rep.  1327,  91 
S.  W.  714. 

In  Evans  v.  Wyatt,  43  Law  T.  (N. 
S.)  176,  it  was  held  (per  Lindley, 
J.)  that  the  payment  and  receipt  of 
rent  accruing  after  the  commence- 
ment of  an  action  to  recover  posses- 
sion for  breach  of  a  condition,  while 
it  did  not  cause  a  waiver  of  the 
forfeiture  and  so  restore  the  old 
tenancy,  was  evidence  of  a  new  ten- 
ancy of  a  periodic  character  on  the 
terms  of  the  old  lease.  And  see 
Cochran  v.  Philadelphia  Mortg.  & 
Trust  Co.,  70  Neb.  100,  96  N.  W.  1051, 
where  the  possibility  of  the  creation 
of  a  new  tenancy  by  the  payment  of 
rent  by  one  already  in  default  ap- 
pears to  be  suggested  in  the  opinion. 

212  Chiera  v.  McDonald,  14  Mich. 
54,  79  N.  W.  908;  Palmer  v.  City  Liv- 
ery Co..  98  Wis.  33,  73  N.  W.  559. 
And  see  Granite  BIdg.  Ass'n  v. 
Greene,  25  R.  I.  586,  57  Atl.  649. 

213  Green's  Case,  Cro.  Eliz.  3; 
Price  v.  Worwood,  4  Hurl.  &  N.  512; 
Silva  V.  Campbell.  84  Cal.  420,  24 
Pac.  316:  RoVihins  v.  Conway,  92  111. 
App.    173;     Miller    v.    Prescott,    1C3 


Mass.  12,  39  N.  E.  409,  47  Am.  St. 
Rep.  434;  Pendill  v.  Union  Min.  Co., 
64  Mich.  172,  31  N.  W.IOO;  Jackson 
V.  Allen,  3  Cow.  (N.  Y.)  220;  Stuy- 
vesant  v.  Davis,  9  Paige  (N.  Y.)  427; 
Campbell  v.  McElevey,  2  Disn. 
(Ohio)  574;  Carraher  v.  Bell,  7 
Wash.  81,  34  Pac.  469. 

In  Lindeke  v.  Associates'  Realty 
Co.,  77  C.  C.  A.  56,  146  Fed.  630, 
there  was  held  to  be  no  waiver  of 
the  forfeiture  by  reason  of  the  pay- 
ment and  receipt  of  rent,  for  the  rea- 
son that  the  rent  so  paid  and  re- 
ceived was  for  a  period  prior  to  the 
time  at  which  the  right  of  re-entry 
had  attached,  though  subsequent  to 
the  date  of  the  breach  of  condition 
and  of  notice  of  an  intention  to  as- 
sert a  forfeiture,  the  lease  providing 
for  a  notice  of  four  months  before 
re-entry.  The  opinion  says  that  a 
waiver  arises  only  where  the  rent 
has  accrued  and  been  accepted  after 
the  right  of  re-entry  has  attached. 
The  language  of  the  cases  generally, 
however,  is  that  a  waiver  arises  up- 
on the  payment  and  acceptance  of 
rent  which  became  due  before  the 
breach  of  condition  or  before  the 
act  of  forfeiture.  The  point  in- 
volved in  the  case  referred  to  seems 
to  have  been  discussed  in  no  other 
case.  In  Kenny  v.  Sen  Si  Lun,  101 
Minn.  253,  112  N.  W.  220,  11  L.  R.  A. 
(N.  S.)   831,  there  was  held  to  be  a 


§  194 


UNDER  EXPRESS  CONDITION. 


1391 


At  common  law,  the  acceptance  by  the  landlord  of  an  install- 
ment of  rent,  paid  on  a  day  after  it  became  due,  is  not  a  waiver 
of  the  act  of  forfeiture  consisting  of  its  nonpayment  on  the  day 
on  which  it  became  due,  that  is,  he  may  accept  the  rent  and  yet 
enforce  a  forfeiture  because  it  was  not  paid  promptly-^i-*  There 
are  several  cases  in  this  country  to  the  contrary ,2 is  but  these 
must  be  regarded,  it  would  seem,  as  involving  the  introduction 
of  an  equitable  defense  in  a  common-law  action,  which  is  in 
many  states  now  permitted  by  statute.^i^  Even  in  the  jurisdic- 
tions, however,  in  which  this  latter  view  prevails,  the  landlord's 
acceptance  of  part  of  an  installment  will,  it  seems,  not  prevent  his 
enforcement  of  the  forfeiture  for  nonpayme-nt  of  the  balance.^i"^ 


waiver  by  reason  of  the  acceptance 
of  rent  accruing  during  the  period 
between  the  giving  of  a  notice  of 
an  intention  to  assert  a  forfeiture 
and  the  time  at  which  the  notice 
was  limited  to  expire.  But  in  this 
case  the  lease  did  not  require  any- 
time to  elapse  between  the  breach 
and  the  assertion  of  the  forfeiture. 
In  Cochran  v.  Philadelphia  Mortg. 
&  Trust  Co.,  70  Neb.  100,  96  N.  W. 
1051,  there  is  a  decision  as  to  the 
effect  of  a  notation,  upon  a  check 
given  to  the  landlord  by  the  tenant, 
indicating  the  period  for  which  it  is 
to  be  applied,  with  reference,  it  may 
perhaps  be  presumed,  to  whether  it 
was  to  be  regarded  as  a  payment  of 
rent  accrued  since  the  forfeiture,  so 
as  to  constitute  a  waiver. 

214  Co.  Litt.  211  b;  Green's  Case. 
Cro.  Eliz.  3;  Pennant's  Case,  3  Coke, 
64  a:  Ward  v.  Day,  4  Best  &  S.  337; 
Denison  v.  Maitland,  22  Ont.  166; 
Morrison  v.  Smith,  90  Md.  76,  44  Atl. 
1031. 

215  Bacon  T.  Western  Furnituro 
Co.,  53  Ind.  229;  Gamhart  v.  Fin- 
ney, 40  Mo.  449,  93  Am.  Dec.  303; 
Cuschner  v.  Westlake,  43  Wash.  690, 
Sfi  Pac.  948;  Coon  v.  Brickett,  2  N. 
H.  163.     In  the  case  first  cited  it  is 


said  that  "to  insist  upon  a  forfeiture 
of  the  lease  for  the  nonpayment  of 
the  rent,  which  he  has  received, 
seems  to  us  a  legal  solecism."  But 
it  is  to  be  noted  that  the  forfeiture 
is  for  the  nonpayment  of  the  rent 
when  it  becomes  due  rather  than  for 
the  absolute  nonpayment  thereof. 

In  Bowling  v.  Crook,  104  Ala.  130, 
16  So.  131,  it  is  decided  that  the 
landlord  cannot,  after  accepting  corn 
for  rent  with  knov/ledge  of  its  condi- 
tion, assert  a  forfeiture  on  account 
of  the  inferior  character  of  the  corn. 

2ifi  See  the  admirable  opinion  of 
Hoadly,  J.,  in  Campbell  v.  McElevey, 
2  Disn.  (Ohio)  574.  And  also  John- 
son V.  Lehigh  Valley  Traction  Co., 
130  Fed.  932. 

217  Pendill  v.  Union  Min.  Co.,  64 
Mich.  172,  31  N.  W.  100.  But  In 
Barber  v.  Stone,  104  Mich.  90,  62  N. 
W.  139,  it  was  decided  that,  when 
rent  was  payable  in  advance,  by  the 
acceptance  of  part  of  the  monthly 
rent  in  advance  the  landlord  waived 
his  right  to  insist  on  a  forfeiture 
during  the  period  covered  by  the 
payment.  This  seems  to  involve  an 
apportionment  of  rent  as  to  time 
such  as  is  not  ordinarily  per- 
mitted.    Compare  Tipton  v.  Roberts, 


1392 


FORFEITURE  OF  LEASEHOLD.  §  194 


Nor  will  his  recovery  of  a  personal  judgment  for  the  rent  have 
such  an  effect. -^^ 

Even  though  the  common-law  view  be  adopted  that  payment 
and  acceptance  of  rent,  after  it  becomes  due,  does  not  preclude  a 
forfeiture  at  law  for  its  nonpayment,  equity  would  no  doubt  inter- 
vene to  prevent  a  forfeiture  if  the  rent  has  been  paid.^i^ 

(c)  Assertion  of  claim  for  rent.  The  commencement  of  an 
action  for  rent,  accruing  after  the  act  of  forfeiture,  with  knowl- 
edge of  such  act,  is  regarded  as  a  waiver  of  the  right  to  enforce 
the  forfeiture. 2 20  The  fact  that,  in  a  jurisdiction  where  such  a 
joinder  of  causes  of  action  is  permitted,  the  landlord,  in  a  pro- 
ceeding in  which  he  claims  possession  of  the  land  for  breach  of  a 
condition  requiring  the  tenant  to  repair,  also  claims  arrears  of 
rent  which  have  accrued  since  the  commencement  of  the  failure 
to  repair,  has  been  held  not  to  affect  the  right  to  enforce  the  for- 
feiture,22i  the  breach  being  of  a  continuing  eharacter.222  ^n^j 
it  has  been  held  that  when  the  landlord,  suing  in  ejectment,  based 
his  right  to  recovery  on  a  breach  of  the  condition  against  a  cer- 
tain use  of  the  premises,  and  also  on  a  failure  to  pay  rent  accruing 
after  such  former  breach,  the  latter  claim  did  not  involve  a 
waiver  of  the  former.223 

An  absolute  and  unqualified  demand,  on  the  part  of  the  land- 
lord, for  rent  accruing  after  the  act  of  forfeiture,  has  been  said 
to  involve  a  waiver.224  A  mere  demand  of  rent  in  arrear  is  evi- 
dently not  a  waiver  of  the  right  to  assert  a  forfeiture  for  nonpay- 
ment of  such  rent  in  accordance  with  the  demand.225 

48  Wash.  391,  93  Pac.  906,  ante,  note  222  See  post,  §  194  1  (4). 

97.  223  Toleman   v.   Portbury,  L.  R.   6 

218  Campbell  v.  McElevey,  2  Disn.  Q.  b.  245,  L.  R.  7  Q.  B.  344. 

(Ohio)    574.  224  Per  Parke,  J.,  in  Doe  d.  Nash  v. 

210  See  post,  §  194  1  (3).  Birch,  1  Mees.  &  W.  408;  per  Bram- 

220  Dendy  v.  Nicholl,  4  C.  B.    (N.  -^vell,  J.,  in  Croft  v.  Lumly,  6  H.  L. 

S.)  376;  Alexander  V.  Touhy,  13  Kan.  ^^g    705      ^nd   see  the  remarks   in 

64.    In  Ireland  v.  Nichols,  37  How.  Pr  favor  of  this  view  per  Loomis,  J.,  in 

(N.  Y.)  222,  it  was  decided  that  the  ^^^^   ^    Q^^^.^   47   Conn.    366.     Mc- 

fact  that  the  lessor,  in  an  action  to  ^roskey  v.  Hamilton,  108  Ga.  640,  34 

enforce   a  forfeiture,   asked  for  the  ^     ^    ^^^^   ^^    ^^     ^^    ^^    ^^     ^^ 

appointment   of   a   receiver   to   take  ^,        ^ 

,  ^,  ^  ,         c.„    ,1,.^    rather  adverse  thereto, 

charge  of  the  rents  and  profits,  did 

.  .        ,       „  ^„!,r^,.  225  McCroskey  v.  Hamilton,  108  Ga. 

not  involve  a  waiver. 

2«  Penton  v.  Bamett  [1898]   1  Q.    640.  34   S.  E.   111.  75  Am.   St.  Rep. 
B  276.  79.    It   is  intimated   that  such   de- 


§  194 


UNDER  EXPRESS  CONDITION.  1393 


(d)  Action  against  tenant.  Not  only  does  the  bringing  by  the 
landlord  of  an  action  for  rent,  accruing  after  the  act  of  forfeiture, 
operate  as  a  waiver  of  the  right  to  assert  a  forfeiture,226  but 
the  bringing  of  any  other  action,  which  involves  a  recognition 
of  the  tenancy  as  still  existing,  involves  a  waiver.  So  the  in- 
stitution of  a  statutory  proceeding  to  obtain  possession  for  non- 
payment of  rent  has  been  regarded  as  involving  a  recognition  of 
the  tenancy  as  still  subsisting,  and  as  therefore  operating  as  a 
waiver  of  a  right  to  assert  a  forfeiture  for  a  previous  act  (sn  the 
part  of  the  tenant.227  And  it  has  been  held  that,  by  asking  for  an 
injunction  against  the  continuance  of  certain  acts  in  breach  of  a 
covenant,  the  landlord  waives  a  right  to  re-enter  on  account  of 
such  breach.228 

The  mere  fact  that  an  ejectment  suit  is  based  on  a  breach 
of  two  conditions  in  the  lease  does  not  involve  a  waiver  of  eith- 
er.22o  But  if  the  landlord,  in  making  an  entry,  expressly  states 
that  it  is  on  account  of  the  breach  of  a  particular  condition,  he  can- 
not thereafter,  it  has  been  decided,  claim  a  forfeiture  on  account 
of  the  breach,  prior  thereto,  of  a  different  condition.^^o 

(e)  Notice  to  tenant.  The  action  of  the  landlord  in  giving 
a  regular  notice  to  quit,  in  order  to  terminate  the  tenancy,  is  such 
a  recognition  of  the  continued  existence  of  the  tenancy  as  amounts 
to  a  waiver  of  the  right  to  enforce  a  forfeiture,^^!  and  the  giving 
of  the  notice  necessary  in  order  to  sustain  the  statutory  action 
to  recover  possession  for  nonpayment  of  rent  has  been  also  so 
regarded.232     It  has  been  decided   also  that  where  the  tenant 

mand,  if  complied  with,  would  pre-  sert  a  forfeiture,  cannot  thereafter 

elude  the  assertion  of  a  forfeiture,  obtain  an  injunction. 

226  See  ante,  §  194  i    (1)    (c).  229  Toleman   v.   Portbury,  L.  R.   6 

227  Dockrill  v.  Schenk,  37  111.  App.  Q.  B.   245,  L.  R.  7  Q.  B.  344,  ante, 
44;  Frazier  v.  Caruthers,  44  111.  App.  note   223. 

61"    Nagel   v.  League,   70    Mo.   App.  230  Atkins  v.  Chilson,  50  Mass.    (9 

4gY_  Mete.)  52.     And  see  cases  cited  post, 

22s  Evans    v.    Davis,    10    Ch.    Div.  note  233. 

747;    Chautauqua    Assembly    v.    Al-  231  Doe  d.  Scott  v.  Miller,  2  Car.  & 

iing,  46  Hun  (N.  Y.)   582.     Compare  P.   348;    Godwin  v.  Harris,  71  Neb. 

Linden  v.  Hepburn,   5  N.  Y.  Super.  59,  98  N.  W.  439. 

Ct.   (3   Sandf.)    668,  5  How.  Pr.  188,  232  Dockrill  v.  Schenk,  37  111.  App. 

and  Kramer  v.  Amberg,  53  Hun,  427,  44;  Frazier  v.  Caruthers,  44  111.  App. 

6  N.  Y.   Supp.   303,  where  it  is   de-  61.       But   see   Shermer   v.   Paclello, 

decided  that  the  landlord,  if  he  as-  161  Pa.  69,  28     Atl.  995. 

L.  and  Ten.  88. 


1394  FORFEITURE  OF  LEASEHOLD.  §  194 

has  violated  two  conditions,  tlie  landlord  cannot  enforce  a  for- 
feiture for  one  of  such  violations,  if  he  gives  notice  of  an  intention 
to  enforce  a  forfeiture  for  the  other  violation.^ss 

(f)  Language  recognizing  tenancy.  It  has  been  held  that  a  re- 
cital to  the  effect  that  the  tenancy  is  still  existent,  in  an  instru- 
ment executed  subsequently  to  the  act  of  forfeiture,  shows  a 
waiver,234  as  likewise  does  an  agreement  by  the  landlord  to  grant 
a  new  term  to  the  tenant  after  the  expiration,  by  effluxion  of 
time,  of  the  term,  a  forfeiture  of  which  is  sought. ^-''^  A  consent  by 
the  landlord  to  an  assignment  by  the  lessee  has  also  been  held 
to  involve  a  waiver  of  the  right  to  assert  a  forfeiture  for  a  pre- 
vious act.236 

A  notice  by  the  landlord  to  the  tenant  to  make  repairs  has 
been  regarded  as  showing  an  election  not  to  declare  a  forfeiture 
for  the  previous  failure  to  make  the  repairs,  provided  they  are 
made  on  receipt  of  the  notice. ^^''^ 

g.  Distress,  Since,  ordinarily,  a  distress  can  be  levied  only 
during  the  continuance  of  the  tenancy ,-^8  the  levy  of  a  distress 
by  the  landlord,  whether  for  rent  accruing  before  or  after  the 
act  of  forfeiture,  has  been  regarded  as  involving  a  recognition  of 
the  tenancy  as  still  existing  and  as  so  operating  as  a  waiver.239 

233  Brooks  V.  Rogers,  99  Ala.  433,  this  letter.  The  letter,  not  being 
12  So.  61;  Atkins  v.  Chilson,  50  sent,  would  seem  to  be  out  of  the 
Mass.  (9  Mete.)  52.  See  ante,  at  case  so  far  as  the  tenant  was  con- 
note 229.  cerned,  and  that  it  had  been  written 

234  Green's  Case,  Cro.  Eliz.  3,  would  seem  to  be  immaterial, 
where  the  use  of  the  word  "termor"  238  See  post,  chapter  XXXII.  The 
to  describe  the  person  to  whom  rent  statute  8  Anne,  c.  14,  §§  6,  7,  which 
was  paid  was  regarded  as  involving  allows  distress  within  six  months 
a  recognition  that  he  was  still  the  after  the  termination  of  the  tenancy, 
landlord.  ^^^  ^^^^  decided  not  to  apply  when 

235  Ward  V.  Day,  5  Best  &  S.  359.    the    tenancy   is   terminated   by    for- 
230  Deaton  v.  Taylor,  90  Va.  219,  17    feiture.     Grimwood  v.  Moss,  L.  R.  7 

S.  E.  944.     Here,  however,  the  land-  C.  P.  365;  Kirkland  v.  Briancourt,  6 

lord  not  only  assented  to  the  assign-  Times  Law  R.  441. 
ment  but  also  assured  the  assignee        sso  Pennant's  Case,  3   Coke,   64  b; 

that  the  forfeiture  would  not  be  as-  Doe   d.   Flower  v.   Peck,    1   Barn.   & 

serted.  Adol.  428;  Ward  v.  Day,  4  Best  &  S. 

237  Hasterlik  V.  Olson,  218  111.  411,  337;    Doe    d.    David   v.    Williams,    7 

75    N.    E.    1002.     Here    emphasis    is  Car.  &  P.  322;  Cotesworth  v.  Spokes, 

also  placed  upon  the   fact  that  the  10    C.   B.    (N.   S.)    103;    Dermott   v. 

lessor   had    writ+en   a    letter    assert-  Wallach,    68    U.    S.    (1    Wall.)     61; 

ing  a  forfeiture  but  failed   to  send  Camp    v.  Scott,  47  Conn.  371;   Chase 


§  194 


UNDER  EXPRESS  CONDITION.  1395 


But,  as  in  the  case  of  the  acceptance  of  rent,-^^  the  levy  of  a  dis- 
tress does  not  have  this  effect  when  the  landlord  has  already  insti- 
tuted proceedings  to  recover  possession  of  the  premises  o.n  account 
of  the  act  of  forfeiture,24i  nor  when  it  is  necessary  to  levy  a  dis- 
tress before  the  landlord  can  enforce  a  remedy  given  by  statute 
for  nonperformance  of  a  condition  or  covenant,  as  when  the  stat- 
ute authorizes  an  action  by  him  for  possession  on  nonpayment  of 
rent,  if  no  sufficient  distress  is  to  be  found  on  the  premises.242 

(2)  Delay  in  assertion  of  forfeiture.  The  mere  fact  that  the 
landlord  fails  to  assert  the  right  of  forfeiture  immediately  upon 
the  tenant's  breach  of  condition  should  not,  it  seems,  affect  his 
right  subsequently  to  assert  it,  that  is,  it  should  not  be  regarded  as 
a  waiver.2^3  There  are,  however,  occasional  statements  apparent- 
ly to  the  effect  that  the  right  must  be  asserted  with  the  greatest 
promptitude.2-14 

If  the  landlord,  after  knowledge  of  the  tenant's  act  of  for- 
feiture, delays  to  enforce  the  forfeiture,  and  also  permits  the  lat- 
ter to  make  improvements  upon  the  premises,  he  cannot  there- 
after assert  the  right,  with  the  result  of  depriving  the  tenant  of 
the  benefit  of  the  improvements. ^^s 

V.  Knickerbocker  Phosphate  Co.,  32  ute  the  right  to  retain  possession 
App.  Div.  400,  53  N.  Y.  Supp.  220;  for  three  months  was  held,  in  con- 
Jackson  V.  Sheldon,  5  Cow.  (N.  Y.)  nection  with  other  circumstances,  to 
448;  McKildoe's  Ex'r  V.  Darracott,  13  explain  the  delay  on  the  part  of  the 
Grat.  (Va.)  278.  lessor  in  re-entering  for  a  breach  of 
210  See  ante,  note  211.  condition    involved    in    such    assign- 

241  Grimwood  v.  Moss,  L.  R.  7  C,  ment. 

p.  360.  In  Catlin  v.  Wright,  13  Neb.  558, 

242  Brewer  v.  Eaton,  3  Doug.  230;  14  N.  W.  530,  a  lease  of  a  farm  pro- 
Thomas  V.  Lulham  [1895]  2  Q.  B.  vided  that  the  lessor  might  termin- 
400.  ^te  the  lease  on  the  lessee's  failure 

2-13  See  Doe  d.  Sheppard  v.  Allen,  3  to  furnish  the  lessor's  stock  on  the 
Taunt.  78;  Williams  v.  Vanderbilt,  farm  with  sufficient  food  and  water 
145  111.  238,  34  N.  E.  476,  21  L.  R.  A.  during  the  winter  or  feeding  season, 
489,  36  Am.  St.  Rep.  486;  McKildoe's  and  it  was  held  that  the  lessor  waiv- 
Ex'r  V.  Darracott,  13  Grat.  (Va.)  278.  ed  the  right  to  enforce  a  forfeiture 
244  See  Gradle  v.  Warner,  140  111.  for  the  lessee's  failure  in  this  re- 
123,  29  N.  E.  1118;  Allen  v.  Dent,  72  spect  if  he  delayed  to  do  so  until 
Tenn.  (4  Lea)  676.  the  expiration  of  the  winter  or  feed- 
In  Soper  V.  Littlejohn,  31  Can.  ing  season,  thus  throwing  on  the 
Sup.  Ct.  572,  the  fact  that  one  to  lessee  the  burden  of  caring  for  the 
whom  the  lessee  had  assigned  for  stock  during  the  winter  months. 
the  benefit  of  creditors  had  by  stat-  245  Doe    d.    Sheppard   v.    Allen,    3 


1396  FORFEITURE  OF  LEASEHOLD.  §  194 

After  the  lease  has  come  to  an  end  by  effluxion  of  time,246  or, 
it  seems,  by  force  of  a  special  limitation,^-!'  ^he  landlord  ca::}not 
assert  the  right  of  forfeiture  for  the  purpose  of  precluding  the 
tenant  from  exercising  his  common-law  right  to  take  the  emble- 
ments,248  or  of  preventing  the  latter  from  exercising  a  right, 
expressly  reserved  to  him,  of  removing  the  improvements  made  by 
him.249  And  no  doubt  the  same  principle  would  be  applied  as 
regards  the  exercise  of  any  other  right  which  the  tenant  may  have 
on  expiration  of  the  lease. 

(3)  Acts  inducing  breach  of  condition.  It  may  happen  that 
the  landlord,  by  his  language  or  course  of  conduct,  before  any 
breach  of  condition  by  the  tenant,  in  effect  waives  the  condition, 
or,  in  other  words,  licenses  its  breach.  Such  a  case  is  clearly  dis- 
tinguishable on  principle  from  the  ease  in  which,  after  a  breach 
of  condition,  the  landlord  waives  the  right  to  assert  a  forfeiture 
on  account  thereof.  It  involves  ordinarily  an  application  of  the 
principle  of  estoppel.  For  instance,  if  the  landlord  in  effect 
tells  the  tenant  that  he  may  do  a  certain  act,  which  act  violates 
the  terms  of  the  condition,  he  cannot  thereafter  assert  a  right 
of  forfeiture  because  the  tenant  does  such  act.^^o  On  this  prin- 
ciple it  has  been  held  that,  though  the  lease  provides  for  a  for- 
feiture if  the  tenant  assigns  without  the  written  assent  of  the 
landlord,  the  latter  cannot  assert  a  forfeiture  if  he  orally  assents 
to  an  assignment..25i  ^nd  even  though  the  landlord  does  not  by 
express  language  assent  to  such  act,  if  he  so  conducts  him.self  as 
to  lead  the  tenant  to  believe  that  he  will  not  regard  it  as  a  cause 
of  forfeiture,  and  thus  induces  such  act  by  the  tenant,  it  cannot  be 
asserted  by  him  as  such.^ss 

Taunt.  78  (dictum);  North  Stafford-  248  Johns  v.  Whitley,  3  Wils.  127; 

shire  Steel  &  Iron  Co.  v.  Camoys,  11  Campbell  v.   Baxter,  15  U.  C.  C.  P. 

Jur.    (N.    S.;    pt.   1)    555    (dictum);  42. 

Hume  V.  Kent,  1  Ball  &  B.  554;  Mor-  249  Cheatham    v.    Plinke,    1    Tenn. 

rison   v.   Smith,   90   Md.   76,  41   Atl.  Ch.  576. 

1031;    Garnhart    v.    Finney,    40    Mo.  250  Doe    d.    Henniker    v.    Watt,    8 

449,  93  Am.  Dec.   303;   Benavides  v.  Barn.  &  C.  308. 

Hunt,    79    Tex.    383,    15    S.    W.    396.  251  See  ante,  §  152  h. 

And  see  People  v.  Freeman,  110  App.  2^2  Doe  d.  Knight  v.  Rowe,  2  Car.  & 

Div.  605,  97  N.  Y.  Supp.  343.  P.  246;  Randol  v.  Scott,  110  Cal.  590, 

246  Johns  V.  Whitley,  3  Wils.  127;  42    Pac.    976     (semhle) ;     Moses    v. 
Cheatham  v.  Plinke,  1  Tenn.  Ch.  576.  Loomis,  156  111.  392,  40  N.  E.  952,  47 

247  Campbell  v.  Baxter,  15  U.  C.  C.  Am.  St.  Rep.  194;  Johnson  v.  Doug- 
p_  42.  lass,  73  Mo.  168;  Duffield  v.  Hue,  129 


^  JQ4  UNDER  EXPRESS  CONDITION.  1397 

The  mere  fact  that  the  landlord  has  failed  to  enforce  a  for- 
feiture on  a  previous  breach  of  a  condition,  without  more,  should 
not  be  rer^arded  as  a  license  to  commit  subsequent  breaches 
thereof,  and  it  has  accordingly  been  decided  that  his  failure  to 
enforce  a  forfeiture  for  failure  to  pay  an  installment  of  rent  on 
the  day  on  which  it  was  due  does  not  affect  his  right  to  enforce 
a  forfeiture  for  delay  in  paying  an  installment  subsequently 
falling  due.253  And  the  fact  that,  though  the  rent  was  payable  in 
specific  articles,  the  landlord  accepted,  for  a  number  of  years,  the 
money  value  of  such  articles  in  payment  of  the  installments  of 
rent,  was  held  not  to  preclude  him  from  asserting  a  forfeiture  for 
failure  to  pay  a  subsequent  installment  in  such  articles  rather  than 
in  money .254  But  there  are  occasional  decisions  to  the  effect  that 
the  landlord's  failure,  at  different  periods,  to  enforce  a  forfeiture 
for  one  breach  of  a  condition,  precludes  him  from  doing  so  upon 
a  subsequent  breach,  unless  at  least  he  gives  notice  that  such  will 
be  the  effect  of  a  breach.^ss  Why  an  exercise  of  the  landlord's 
option  not  to  enforce  a  forfeiture  for  breach  of  condition  should 
have  the  effect  of  a  license  to  commit  another  breach  is  by  no 
means  clear. 

Pa  94  18  Atl.  566;  Steiner  v.  Marks,  Gas  Co.  v.  De  Witt,  130  Pa.  235,  18 
172  Pa.  400,  33  Atl.  695;  Hukill  v.  Atl.  724,  5  L.  R.  A.  (N.  S.)  731;  Car- 
Myers,  36  W.  Va.  639.  penter  v.  Wilson,  100  Md.  13,  59  Atl. 

In  Jolinson  V.  Douglass,  73  Mo.  168.  186;     Cogley   v.    Browne,    15    PMla. 

it  was  held  that  if,  on  demand   of  (Pa.)  162. 

rent  the  tenant  told  the  landlord  In  Smith  v.  St.  Philip's  Church, 
that'  he  would  credit  the  rent  on  a  107  N.  Y.  616,  14  N.  E.  825,  it  was 
note  of  the  landlord,  and  the  land-  held  that  where  one  took  a  lease 
lord  made  no  reply,  the  latter  could  for  building  purposes  which  con- 
not  thereafter  assert  a  forfeiture  for  tained  a  condition  against  sublet- 
nonpayment.  It  does  not  appear  ting,  and  built  an  apartment  house 
that  the  tenant,  even  if  misled,  was  on  the  ground  leased,  and  for  sev- 
misled  to  his  prejudice.  eral  years  the  landlord  accepted  the 

253  Robbins  v.  Conway,  92  111.  App.  rent  without  objecting  that  the  les- 

173;  Douglas  v.  Herms,  53  Minn.  204,  see  had  no  right  to  make  leases  of 

54  N.  W.  1112.  apartments  in  the  building,  he  there- 

254Lilley  v.  Fifty  Associates,   101  by  granted  a  license  to  use  and  oc- 

Mass.  432,  3  Am.  Rep.  387.     See  post,  cupy  the  building  as  an  apartment 

note    341.  house.     The  court  also  said  that  "it 

255  Little     Rock     Granite     Co.     v.  is  consistent  with  the  circumstances 

Shall,  59  Ark.  405,  27  S.  W.  562,  27  and    with    fair    dealing   to    construe 

L.   R.  A.  190,  43  Am.   St.   Rep.   38;  the  acts  and  silence  of  the  defend- 

Westmoreland    &    Cambria    Natural  ant  as  an  assent  that  the  somewhat 


;^398  FORFEITURE  OF  LEASEHOLD.  §  194 

Analogous  to  the  case  of  a  waiver  of  the  condition,  or  a  license 
for  its  breach,  is  that  of  the  extension  by  the  landlord  of  the 
time  for  its  performance.  If,  for  instance,  the  landlord  concedes 
to  the  tenant  that  he  need  not  pay  the  rent.^se  or  pay  taxes,^^?  or 
make  repairs,258  until  after  the  stipulated  time,  he  cannot  claim  a 
forfeiture  because  the  rent  or  taxes  are  not  paid,  or  the  repairs 
not  made,  until  such  time.  This  is  what  is  technically  known  as 
a  "suspension"  of  the  condition. 

(4)  Continuing  and  recurring  breaches.  Reference  is  some- 
times made  to  a  "continuing  breach"  of  a  condition,  or  to  a 
condition  which  is  susceptible  of  a  "continuing  breach,"  it  being 
said  that  in  such  case  a  waiver  applies  only  to  past  breaches,  and 
does  not  affect  the  landlord's  right  to  enforce  a  forfeiture  for  a 
subsequent  breach.259  The  expressio.n  "continuing  breach"  does 
not,  however,  seem  particularly  appropriate  to  all  classes  of  cases 
which  arise  in  this  connection.  Frequently  the  expression  "re- 
curring breaches"  would  seem  to  be  more  appropriate,  as  when 
the  condition  calls  for  the  performance  not  of  one  single  act, 
but  of  a  series  of  acts,  as  occasions  arise  therefore.^^o  In  the  ease 
of  a  condition  to  make  repairs,  for  instance,  different  repairs 
become  necessary  at  different  times,  and  it  seems  somewhat  of  a 
misnomer  to  speak  of  the  successive  failures  to  do  these  acts  as 
constituting  one  single  continuing  breach.  The  question  in  all 
this  class  of  cases  is  whether,  not  the  breach,  but  the 
condition,     is     continuous,     that     is,     whether     the     condition 

peculiar  interest  created  by  the  let-  256  Sauer  v.  Meyer,  87  Cal.  34,  25 

ting  of  the  apartments  from  time  to  Pac.  153. 

time   for  brief   periods   was   not  an  257  Manice  v.  Millen,  26  Barb.   (N. 

underletting  or  parting  with  any  in-  y.)    41. 

terest  in  the  demised  premises  with-  258  Doe    d.    Rankin   v.    Bindley,    4 

in  the  meaning  of  the  covenant."  Barn.  &  Adol.  84. 

In  Whitehead  v.  Bennett,  9  Wkly.  259  See  e.  g.,  Doe  d.  Ambler  v. 
Rep.  620.  Kindersley,  V.  C,  regarded  woodbridge,  9  Barn.  &  C.  376;  Doe  d. 
the  acceptance  of  rent  for  several  gaker  v.  Jones,  5  Exch.  498;  Pen- 
years  without  objection  to  a  breach  ^^^  ^  Barnett  [1898]  1  Q.  B.  277. 
of  condition  to  work  the  mining  ,^^^  ^^^  ^^^  remarks  of  Tracy,  J., 
property  in  question  as  such  an  ac-  .^  ^  ^  ^^^^^^^  ^^  ^  ^  ^^^^ 
quiescense  on  the  part  of  the  land- 

lord  that  he  could  not  assert  a  for-  43  Am.  Rep.  185,  in  regard  to  the  ex- 

feiture    without    first    giving    notice  pression    "continuing    cause    of    for- 

and  also  time  within  which  to  pre-  feiture." 
pare  to  resume  operations. 


§  194  UNDER  EXPRESS  CONDITION.  1399 

is  such  that  a  single  breach  thereof  exhausts  the  condi- 
tion, or  whether  a  continuance  or  recurrence  of  the  same 
state  of  things  as  that  which  caused  a  breach  in 
the  first  place  will,  after  this  first  breach  has  been  waived,  cause 
another  breach  of  the  condition  for  which  forfeiture  may  be  en- 
forced. The  distinction  between  the  two  classes  of  conditions, 
the  continuous  and  noncontinuous,  may  be  illustrated  as  fol- 
lows: In  the  case  of  a  condition  to  make  repairs  or  improve- 
ments within  a  certain  time,  or,  as  it  would  usually  occur, 
a  covenant  to  that  efi^ect,  accompanied  by  a  condition  of  re-entry 
in  case  of  breach  of  the  covenant,  it  is  evident  that,  after  the 
teaiant  has  once  broken  the  covenant  or  condition  by  failing 
to  make  repairs  or  improvements  within  the  stipulated  time,  there 
can  be  no  further  breach.^^i  On  the  other  hand,  if  the  tenant 
agrees  generally  to  repair,  there  is  a  breach  of  the  covenant  or 
condition  so  long  or  so  often  as  he  fails  to  make  any  necessary 
repairs,  and  in  such  case  there  is  a  continuing,  or  recurring, 
breaeh.2S2  go  in  the  case  of  a  covenant  to  keep  the  premises  in- 
sured, there  is  a  breach  so  long  or  so  often  as  the  premises  are  not 
insured.2*53  And  in  case  the  condition  is  to  keep  a  way  open,^^* 
to  keep  trees  planted  on  the  premises,^^^  or  to  refrain  from  using 
the  premises  for  certain  specified  purposes,26o  there  is  a  breach  so 
long  or  so  often  as  the  tenant  leaves  the  way  unopened,  leaves 
trees  unplanted,  or  uses  the  premises  for  the  purposes  named, 

26iMcGlynn  v.  Moore,  25  Cal.  384,  205  Bleecker    v.    Smith,    13    Wend. 

85  Am.  Dec.  133.     See  Jacob  v.  Down  (N.   Y.)    530.     So   in   the  case   of  a 

[1900]  2  Ch.  156.  covenant   to   keep   land    in  meadow. 

2(52  Doe  d.  Baker  v.  Jones,  5  Exch.  Ainley  v.  Balsden,  14  U.  C.  Q.  B.  535. 

498;   Coward  v.  Gregory,  L.  R.  2  C.  2gg  Doe  d.  Ambler  v.  Woodbridge, 

P.  153;   Jacob  v.  Down   [1900]  2  Ch.  9  Barn.  &  C.  376;  Farwell  v.  Easton, 

156;  Penton  V.  Barnett  [1898]  1  Q.  B.  63    Mo.    446;    Mulligan    v.    Hollings- 

276.  worth,   99   Fed.    216;    Granite    Bldg. 

263  Doe  d.  Muston  v.  Gladwin,  6  Q.  Ass'n  v.  Greene,  25  R.  I.  48,  54  Atl. 
B.  953;  Doe  d.  Flower  v.  Peck,  1  792.  For  other  instances  of  a  con- 
Barn.  &  Adol.  428;  Price  v.  Wor-  tinning  condition,  see  Jones  v.  Dur- 
wood,  4  Hurl.  &  N.  512.  rer,  96  Cal.  95,  30  Pac.  1027   (Condi- 

264  Jackson  v.  Allen,  3  Cow.  (N.  tion  as  to  disposition  of  crops  and 
Y.)  220;  Gluck  V.  Elkan,  36  Minn.  80,  other  produce);  Alexander  v.  Hod- 
30  N.  W.  446  (Condition  requiring  ges,  41  Mich  691,  3  N.  W.  187  (Con- 
lessee  to  keep  stairway  open  and  dition  that  lessee  comply  with  all 
free  from  rubbish).  laws   and   ordinances). 


2400  FORFEITURE  OF  LEASEHOLD.  §  194 

respectively,  and,  in  each  of  these  cases,  the  fact  that  the  landlord 
has  done  some  act  which  involves  a  waiver  of  the  right  to  enforce 
a  forfeiture  for  the  previous  breach  of  condition  by  the  tenant 
does  not  preclude  him  from  enforcing  a  forfeiture  if  the  tenant 
fails  subsequently  to  perform  the  condition. 

A  condition  of  re-entry  in  case  the  lessee  fails  to  perform 
his  covenant  to  pay  taxes  is  continuous,  it  has  been  considered, 
in  the  sense  that  a  waiver  of  a  breach  by  failure  to  pay  certain 
taxes  will  not  preclude  a  forfeiture  for  failure  to  pay  taxes  subse- 
quently assessed,  while  the  mere  continuance,  after  the  waiver, 
of  the  failure  to  pay  the  taxes  assessed  before  the  waiver,  does  not 
authorize  a  forfeiture.^^"^ 

A  condition  against  assigning  or  subletting  is,  in  its  nature, 
capable  of  repeated  or  recurring  breaches,  and  it  has  been 
decided  that  the  fact  that  one  breach  of  such  a  condition  is 
waived,  by  the  acceptance  of  rent  or  otherwise,  does  not  preclude 
the  landlord  from  enforcing  a  forfeiture  for  a  subsequent 
breach.-^s  There  is,  however,  one  decision  to  the  contrary,269  in 
terms  based  upon  the  technical  rule  that  a  license  to  make  an  as- 
signment destroys  a  condition  against  assignment,^'^''  thus  extend- 
ing this  rule  to  the  case  of  the  waiver  of  a  breach  caused  by  a 
previous  assignment.^'^i 

It  has  been  held  that  when  there  is  a  condition  against  sub- 
letting, or  permitting  any  person  other  than  the  lessee  to  occupy 
the  premises,  and  the  lessee  sublets,  there  is  not  a  continuing 
breach  merely  because  the  sublessee  continues  in  occupation  for 
the  term  of  the  sublease,  and  that  consequently  acts  of  waiver 
during  that  time  preclude  the  lessor  from  thereafter  asserting 
a  right  of  forfeiture.2'^2  j^j^^  i\iq  game  principle,  that  there  is  no 
continuing  or  recurring  breach  if  the  lessee,  having  sublet,  is 
not  in  a  condition  to  control  the  occupation  or  use  of  the  premises, 

267  Conger  v.  Duryee,  90  N.  Y.  594,  Ex'r  v.  Darracott,  13  Grat.  (Va.)  278. 
43  Am.  Rep.  185.  ^co  Murray    v.    Harway,    56    N.    Y. 

268  Doe    d.    Boscowen    v.    Bliss,    4    337. 

Taunt.   735;    Doe  d.  Griffith   v.  Prit-  270  See  ante,  §  152  1. 

chard,  5  Barn.  &  Adol.  765,  per  Pat-  271  See  ante,  §  152  1,  note  201. 

teson,  J.;  Walker  v.  Wadley,  124  Ga.  272  Goodright  v.  Davids,  Cowp.  803; 

275,      52      S.      E.      904;      Farr      v.  Walrond  v.  Hawkins,  L.  R.  10  C.  P. 

Kenyon,  20  R.  I.  376,  39  Atl.  241.  39  ^42;  Ireland  v.  Nichols,  46  N  Y.  413; 

L.  R.  A.  773.     See  Bleocker  v.  Smith,  McKildoe's    Ex'r    v.    Darracott,    13 

13  Wend.    (N.   Y.)    530;    McKildoe's  Grat.  (Va.)  278. 


§  194 


UNDER  EXPRESS  CONDITION.  1401 


was  applied  when  the  lessee  covenanted  not  to  permit  a  particular 
use  of  the  premises,  and,  his  sublessee  having  begun  such  use, 
the  original  lessor  accepted  rent  from  the  lessee,  the  lessor 
being  regarded  as  precluded  from  enforcing  a  forfeiture  on  ac- 
count of  the  continuance  of  the  forbidden  use  by  the  sublessee 
for  the  balance  of  his  term.^^^ 

In  England  there  is  not  infrequently  a  general  covenant  by  the 
teJ2ant  to  repair,  and  also  a  covenant  by  him  to  repair  on  notice 
from  the  laxidlord,  and  it  has  been  decided  that,  by  a  notice  to 
repair  within  a  certain  period,  the  breach  of  the  general  covenant 
to  repair  is  waived,  so  that,  though  the  lease  provides  for  a  for- 
feiture on  breach  of  any  covenant,  there  is  no  ground  for  for- 
.  feiture  till  this  period  has  elapsed.274  A  notice  to  repair  "  forth- 
with, "^^s.  276  however,  or  "in  accordance  with  the  covenants  of  the 
lease,  "277  has  been  held  not  to  involve  a  waiver  of  the  general 
covenant. 

j.  Assertion  and  enforcement  of  forfeiture.  At  common  law, 
an  actual  re-entry  was  ordinarily  necessary  in  order  to  terminate 
an  estate  of  freehold  for  breach  of  a  condition  subsequent,  it  be- 
ing considered  that,  since  the  estate  commenced  by  a  formal  act, 
livery  of  seisin,  it  could  terminate  only  by  an  act  of  equal  formali- 
ty  278  In  the  case  of  a  term  of  years,  however,  since  this  did  not 
commence  by  livery  of  seisin,  a  re-entry  was  not  absolutely  neces- 
sary, and  the  landlord's  mere  assertion  of  a  forfeiture  was  suffi- 
cient to  revest  the  property  in  him.279  But  when  the  lease  pro- 
vided that,  upon  a  certain  default  by  the  tenant,  the  landlord 
might  "re-enter,"  a  re-entry  was,  it  seems,  under  the  older  Eng- 
lish practice,  regarded  as  necessary. ^s^ 

The  requirement   of  re-entry  was,  under  the   old  practice   in 
ejectment,  satisfied  by  the  tenant's  entry  into  the  consent  rule 

273  Griffin  v.  Tomkins,  42  Law  T.  218a,    and    authorites    cited    1    Tif- 
(N.    S.)    359.     But   see    remarks    of  fany,  Real  Prop.  p.  180. 
Bramwell,  J.,  in  Lawrie  v.  Lees,  14  279  Co.   Litt.    214    b;    Browning   v. 
Ch.  Div.  249.  Beston,  1  Plowd.  135,  136. 

274  Doe    d.    Moreeraft   v.    Meux,    4  280  Baylis  v.  Le  Gros,  4  C.  B.   (N. 
Barn.  &  C.  606.  S.)   537;  Jones  v.  Carter,  15  Mees.  & 

275.  27«i  Roe   d.   Goatly   v.    Paine,    2  W.    718,    per    Parke,    B.;    Arnshy   v. 

Camp.  520.  Woodward,  6  Barn.  &  C.  519;  Liddy 

277  Few  V.  Perkins,  L.  R.  2  Exch.  v.  Kennedy,  L.  R.   5  H.  L.  134,  per 
92.  Lord  Westbury. 

278  See  Litt.  §  351;  Co.  Litt.  214  b, 


1402  FORFEITURE  OF  LEASEHOLD.  §  194 

in  such  an  action  brought  by  the  landlord,  this  involving  a  confes- 
sion by  him  of  the  landlord's  entry .-^^  Tlie  fictions  in  ejectment 
have  now  been  abolished  in  England,  but  an  actual  re-entry 
does  not  seem  to  be  regarded  as  necessary,  provided  an  aetlMi 
to  recover  possession  is  brought  by  the  landlord,  even  though 
the  lease  expressly  gives  a  right  of  "re-entry"  for  breach  of  con- 
dition.282  When  the  lease  provides  that  it  is  to  be  void  or  to 
come  to  an  end  upon  a  default  by  the  tenant,  a  mere  declaration 
by  the  landlord  of  his  option  to  assert  the  forfeiture,  if  communi- 
cated to  the  tenant,  would  seem,  under  the  common-law  author- 
ities, sufficient  to  terminate  the  tenancy .^^^ 

In  this  country  the  decisions  but  seldom  suggest  any  distinc- 
tion in  this  regard  between  a  provision  that,  upon  breach  of  con- 
dition, the  landlord  may  re-enter,  and  one  that,  in  such  case,  the 
lease  shall  become  void.284  Occasionally  the  courts  speak  of  a 
''re-entry"  as  being  the  proper  mode  of  enforcing  the  forfeiturCj^^fi 
but  it  is  questionable  whether  by  this  is  meant  any  more  than 
that  the  tenancy  continues  till  tlie  forfeiture  is  in  some  way  as- 
serted.2S6     In  other  cases  it  is  stated  that  an  actual  entry  is 

281  Little  V.  Heaton,  2  Ld.  Raym.  re-entry    is    necessary    if    the    lease 

750,  1  Salk.  259;  Goodright  v.  Cator,  provides  for  re-entry,  and  otherwise 

2    Doug.    477;    Jones    v.    Carter,    15  not.     And     in    Ocean    Grove    Camp 

Mees.  &  W.  718;  Matthews  v.  Ward,  Meeting  Ass'n  v.   Sanders,   68  N.  J. 

10  Gill  &  J.  (Md.)  443.  Law,   631,  54  Atl.  448,  the  fact  that 

2S2  Ward  v.  Booth,  10  Times  Law  the  instrument  of  lease  contained  a 
R.  446;  Grimwood  v.  Moss,  L.  R.  7  provision  that  the  lease  shall  be  "at 
C.  P.  360;  Kilkenny  Gas  Co.  v.  Som-  an  end"  on  nonpayment  of  rent  was 
erville.  2  L.  R.  Ir.  192;  Sergeant  v.  held  to  justify  judgment  for  the 
Nash  [1903]  2  K.  B.  304.  As  be-  landlord  in  ejectment,  though  there 
fore  stated,  in  England  and  some  of  was  no  proof  that  there  was  no  suffi- 
the  states,  an  action  of  ejectment  is,  cient  distress  on  the  premises  so  as 
by  express  statutory  provision,  made  to  bring  it  within  the  local  statute 
the  equivalent  of  a  re-entry  in  some  (ante,  note  164),  though  such  proof, 
cases,  when  the  forfeiture  claimed  it  is  said,  is  necessary  when  there 
is  on  account  of  the  nonpayment  of  is  "a  mere  right  of  re-entry  for  non- 
rent.     See  ante,  at  notes  163,  164.  payment  of  rent." 

283  See  authorities  cited  ante,  2R5  See  Gage  v.  Smith,  14  Me.  466; 
note  279.  In  Jones  v.  Carter,  15  Shattuck  v.  Lovejoy,  74  Mass.  (8 
Mees.  &  W.  718,  this  question  is  ex-  Gray)  204;  Robey  v.  Front,  7  D.  C. 
pressly  left  undetermined.  81;   Holman  v.  DeLin,  30  Or.  428,  47 

284  In  Guffy  y.  Hukill,  34  W.  Va.  Pac.  708. 

49.  11  S.  E.  754,  8  L.  R.  A.  759,  26        28g  See  ante,  at  note  86. 
Am.  St.  Rep.  901,  it  is  said  that  a 


§  194 


UNDER  EXPRESS  CONDITION. 


1403 


not  necessary,  and  that  a  clear  assertion,  by  word  or  act,  of  the 
landlord's  intention  that  the  tenancy  shall  come  to  an  end,  is 
Buf!icient.28"  A  reletting  by  the  landlord  to  another  person  has 
occasionally  been  regarded  as  a  sufficient  declaration  of  such  an 
intention.288 

Actual  re-entry  is  not  necessary  in  any  case,  even  in  that  of 
a  freehold  lease,  if  the  lessor  is  already  in  possession.-'^^  And 
the  action  of  the  landlord  in  inducing  the  person  in  possession, 
whether  a  subtenant,^^*^  or  a  stranger  who  has  entered  in  the 


287  Bowman  v.  Foot,  29  Conn.  331; 
Read  v.  Tuttle,  35  Conn.  26,  95  Am. 
Dec.  21G;  Cheney  v.  Bonnell,  58  111. 
268  ("Forfeiture  must  be  formally 
and  clearly  declared") ;  Walker  v. 
Engler,  30  Mo.  130;  Alexander  v. 
Hodges,  41  Mich.  691,  3  N.  W.  187 
("A  demand  at  such  a  time  and 
place  that  if  complied  with  posses- 
sion would  be  at  once  secured  is  all 
that  can  possibly  be  needed") ;  Wills 
V.  Manufacturers'  Natural  Gas  Co., 
130  Pa.  222,  18  Atl.  721,  5  L.  R.  A. 
603;  Guffy  v.  Hukill,  34  W.  Va.  49, 
11  S.  E.  754,  8  L.  R.  A.  759,  26  Am. 
St.  Rep.  901.  It  is  so  assumed  in 
Updegraff  v.  Lesem,  15  Colo.  App.  297, 
62  Pac.  342;  McCroskey  v.  Hamil- 
ton, 108  Ga.  640,  34  S.  E.  Ill,  75  Am. 
St.  Rep.  79.  S.  Liebmann's  Sons 
Brew.  Co.  v.  Lauter,  73  App.  Div. 
183,  76  N.  Y.  Supp.  748;  Mayer  v. 
Clarke,  129  111.  App.  424,  appear  to 
be  contra.  In  Cannon  v.  Wilbur, 
30  Neb.  777,  47  N.  W.  85,  it  is  said 
that  a  "reasonable  notice"  of  an  in- 
tention to  declare  a  forfeiture  is 
necessary.  Here  it  was  decided  that 
if  the  landlord  obtained  possession 
from  a  subtenant  after  default  with- 
out having  first  given  such  notice, 
and  excluded  the  original  tenant,  he 
was  liable  in  damages  as  for  an  evic- 
tion. It  is  not  made  plain  whether 
the  court  means  that  both  a  "reason- 
able notice"  and  also  a  declaration  of 
forfeiture  are  necessary. 


In  Updegraff  r.  Lesem,  15  Colo. 
App.  297,  62  Pac.  342,  supra,  it  was 
decided  that  one  joint  lessor  could 
not  make  a  declaration  of  forfeiture 
on  behalf  of  the  others  unless  spec- 
ially authorized.  In  McCrosky  v. 
Hamilton,  108  Ga.  640,  34  S.  E.  Ill, 
75  Am.  St.  Rep.  79,  supra,  it  was 
decided  that  an  agent  of  the  lessor, 
authorized  to  declare  a  forfeiture, 
could  do  it  though  a  subagent,  a 
servant. 

2S8  Allegany  Oil  Co.  v.  Bradford 
Oil  Co.,  21  Hun,  26;  Id.,  86  N.  Y.  638; 
Rinfret  v.  Morrisey  (R.  I.)  69  Atl. 
763  (semble);  Guffy  v.  Hukill,  34 
W.  Va.  49,  11  S.  E.  754,  8  L.  R.  A. 
759,  26  Am.  St.  Rep.  901.  But  not  if 
the  second  lease  is  expressly  made 
subject  to  the  first.  Schaupp  v.  Hu- 
kill, 34  W.  Va.  375,  12  S.  E.  501. 
And  see  Kreutz  v.  McKnight,  53  Pa. 
319. 

289  Allegany  Oil  Co.  v.  Bradford 
Oil  Co.,  21  Hun,  26;  Id.,  86  N.  Y.  638; 
Ray  V.  Western  Pennsylvania  Nat- 
ural Gas  Co.,  138  Pa.  576,  20  Atl. 
1065,  12  L.  R.  A.  290,  21  Am.  St. 
Rep.  922;  Sheaffer  v.  Shealfer,  37 
Pa.  525;  Maxwell  v.  Todd,  112  N.  C. 
677,  16  S.  E.  926;  Guffy  v.  Hukill, 
34  W.  Va.  49,  11  S.  E.  754,  8  L.  R. 
A.  759,  26  Am.  St.  Rep.  901. 

2i>o  Baylis  v.  LeGros,  4  C.  B.  (N.  S.) 
537. 


1404 


FORFEITURE  OF  LEASEHOLD. 


§104 


tenant's  absence,^^!  to  accept  a  lease  from  him,  has  been  regarded 
as  the  equivalent  of  a  re-entry. 

A  re-entry  being,  as  above  indicated,  the  recognized  mode,  by 
the  common-law  authorities,  for  the  assertion  of  a  right  of  for- 
feiture for  breach  of  condition,  it  seems  clear  that,  at  the  present 
time,  the  landlord  may  so  re-enter  without  resorting  to  a  judicial 
proceeding  to  recover  possession.292  The  right  of  re-entry  is, 
however,  in  some  jurisdictions,  subject  to  the  limitation  that  it 
must  be  peaceable  in  character,293  this  according  with  the  rule 
there  prevailing  as  to  the  right  of  the  landlord  to  take  posses- 
sion by  force  upon  the  expiration  of  the  term-^^^.  295  jjj  others 
the  re-entry  would  be  effective  even  though  forcible. 


291  O'Hare  v.  McCormick,  30  U.  C. 
Q.  B.  567. 

292  That  he  has  the  right  to  enter 
peaceably,  see  Winn  v.  State,  55  Ark. 
360,  18  S.  W.  375;  Wetzel  v.  Meran- 
ger,  85  111.  App.  457;  Wright  v. 
Everett,  87  Iowa,  697,  55  N.  W.  4; 
Abrahams  v.  Tappe,  60  Md.  317;" 
Metropolitan  Land  Co.  v.  Manning, 
98  Mo.  App.  248,  71  S.  W.  696;  Geer 
V.  Boston  Little  Circle  Zinc  Co.,  126 
Mo.  App.  173,  103  S.  W.  151;  Losch 
V.  Pickett,  36  Kan.  216,  12  Pac.  822 
(May  remove  lessee's  chattels  in  his 
absence) ;  Peacock  &  Hunt  Naval 
Stores  Co.  v.  Brooks  Lumber  Co.,  96 
Ga.  542,  23  S.  B.  835;  Smith  v.  De- 
troit Loan  &  Bldg.  Ass'n,  115  Mich. 
340,  73  N.  W.  395,  39  L.  R.  A.  410, 
69  Am.  St.  Rep.  575;  Alexander  v. 
Griswold,  17  N.  Y.  Supp.  522;  Marsh 
V.  Bristol,  65  Mich.  378,  32  N.  W. 
645.  In  Jackson  v.  Elsworth,  20 
Johns.  (N.  Y.)  180,  it  seems  to  be 
1  bought  that  an  action  of  ejectment 
is  necessary.  The  authorities  there 
cited  do  not  support  such  a  view. 

In  Cockerline  v.  Fisher,  140  Mich. 

95    103  N.  W.  522,  the  fact  that  the 

• 
landlord  by  artifice  induced  the  ten- 
ant  to   leave  the  premises,   and   so 
was    enabled    peaceably    to    re-enter 
in  his  absence,  was  held  not  to  ren- 


der his  re-entry  illegal.  Compare 
Lasserot  v.  Gamble  (Cal.)  46  Pac. 
917,  post,  note  293. 

293  Winn  V.  State,  55  Ark.  360,  18 
S.  W.  375;  Kerr  v.  O'Keefe,  138  Cal. 
415,  71  Pac.  447;  Goshen  v.  People, 
22  Colo.  270,  44  Pac.  503;  Peacock  & 
Hunt  Naval  Stores  Co.  v.  Brooks 
Lumber  Co.,  96  Ga.  542,  23  S.  E.  835; 
Thiel  V.  Bull's  Ferry  Land  Co.,  58 
N.  J.  Law,  212,  33  Atl.  281;  Hubner 
V.  Feige,  90  111.  208;  Briggs  v.  Roth, 
28  111.  App.  314;  Graham  v.  Wom- 
ack,  82  Mo.  App.  618;  Spencer  v. 
Commercial  Co.,  30  Wash.  520,  71 
Pac.  53. 

Lasserot  v.  Gamble  (Cal.)  46  Pac. 
917  is  to  the  effect  that  obtaining 
possession  by  having  the  tenant  ar- 
rested on  some  criminal  charge  and 
then  taViing  advantage  of  his  con- 
finement and  the  momentary  ab- 
sence of  his  servant  constituted  a 
forcible  detainer  within  the  statute. 
Compare  Cockerline  v.  Fisher,  140 
Mich.  95,  103  N.  W.  522,  ante,  note 
292. 

The  lease  may,  it  has  been  de- 
cided, stipulate  against  liability  for 
the  use  of  force  in  removing  the  ten- 
ant on  default.  Howe  v.  Frith 
(Colo.)    95   Pac.    603. 

204,  295  See  post,  §  216. 


§  194  UNDER  EXPRESS  CONDITION.  1406 

No  notice  from  the  landlord  to  the  tenant  is,  it  seems,  necessary 
to  validate  the  former 's  re-entry  for  breach  of  condition,^^^  unless 
the  right  of  re-entry  is  expressly  conditioned  on  the  giving  of 
notice.^^''  In  New  York  there  is  a  specific  provision  for  a  notice 
of  fifteen  days  prior  to  a  re-entry  or  action  to  recover  possession, 
when  the  right  of  re-entry  is,  by  the  lease,  expressly  conditioned 
upon  a  default  in  rent  and  a  lack  of  sufficient  distress  on  the 
premises,  the  intention  being,  in  view  of  the  abolition  of  distress, 
to  substitute  the  requirement  of  notice  for  that  of  insufficiency 
of  distress.2f8  This  statutory  requirement  of  notice  has  been 
held  to  apply  only  when  the  lease  expressly  requires  an  insuffi- 
ciency of  distress  to  authorize  a  re-entry  for  nonpayment  of 
rent,-^^  and  that  such  a  requirement  exists  in  one  clause  of  the 
lease  does  not  preclude  a  re-entry  without  notice  under  another 
clause. ^"^o 

In  New  Hampshire  it  is  provided  that  notice  to  quit  at  the  end 
of  seven  days  shall  be  equivalent  to  an  entry  for  condition 
broken,'^^!  and  such  notice  need  not  state  that  it  is  given  on  ac- 
count of  breach  of  condition.^os  if  the  tenant  fails  to  leave  at 
the  time  specified  in  the  notice  the  landlord  may  enter,  it  is  said, 
provided  he  commits  no  breach  of  the  peace,  and  may  remove  the 
tenant's  goods.'^*'^ 

In  case  the  landlord,  instead  of  making  a  re-entry,  resorts 
to  a  judicial  proceeding  to  recover  possession  on  breach  of  con- 

296  Apparently  to  the  effect  that  Little  Circle  Zinc  Co.,  126  Mo.  App. 
no    notice    is    necessary    is    Den    d.    173,  103   S.  W.  151. 

Bray  v.  McShane,  13  N.  J.  Law    (1  29.S  Code    Civ.    Proc.    §    1505.     See 

J.      S.      Green)      35;      Comegys     v.  Van  Rensselaer  v.  Snyder,  13  N.  Y. 

Russell,      175      Pa.      166,      34      Atl.  (3   Kern.)    299;    Main   v.   Green,   32 

657.     And  see  Whitney  v.  Swett,  22  Barb.  (N.  Y.)  448. 

N.  H.  10,  53  Am.  Dec.  228.     In  Can-  2»9  Hosford    v.    Ballard,    39    N.    Y. 

non  V.  Wilbur,  30  Neb.  777,  47  N.  W.  147;    Cruger  v.   McLaury,   41   N.   Y. 

85,  a  notice  is  reijarded  as  necessary.  219. 

297  See  Muskett  v.  Hill,  5  Bing.  N.  ^^'^  Van  Rensselaer  v.  Jewett,  2  N. 
C.  6S4;  Smith  v.  Blaisdell,  17  Vt.  199.  ^-  ^^  Comst.)  135;  Martin  v.  Rector, 

118  N.  Y.  476,  23  N.  E.  893,  16  Am. 


It   has    been    decided    that    if    the 
lease    requires    notice    of    forfeiture 


St.  Rep.  771;    Garner  v.  Hannah,  13 

N.  Y.  Super.  Ct.  (6  Duer)  262. 
by  mail,  but  does  not  name  any  par-        30^  p^^^    g,.    ^g^^^  ^    g^g^  g.  ^ 

ticular  length  of  notice,  the  lessor  302  Russell  v.  All'ard,  18  N.  H.  222. 
may  re-enter  immediatly  after  send-  303  Whitney  v.  Swett,  22  N.  H.  10, 
ing     the     notice.     Geer     v.     Boston    53  Am.  Dec.  228. 


j^40«  FORFEITURE  OF  LEASEHOLD.  §  194 

dition,  tlie  action  of  ejectment,  or  its  statutory  equivalent,  is  or- 
dinarily the  proijer  form  of  proceeding.  In  some  jurisdictions, 
however,  a  summary  proceeding  is  available  for  this  purpose.^o^ 

While  a  court  of  equity  will  not  ordinarily  declare  or  enforce 
a  forfeiture,^*^^  it  has  been  decided  that  a  landlord  may  there 
obtain  such  relief  on  account  of  the  breach  of  a  condition,  when 
possession  and  control  of  the  property  has  been  taken  by  that 
court  through  its  receiver.^*^^ 

It  has  been  held  that  the  landlord  cannot  enforce  a  condition 
as  to  part  of  the  premises,  and  waive  it  as  to  the  balance,^^"  and 
this  seems  to  accord  with  the  common-law  rule  that  a  condition 
shall  not  be  apportioned.^os  It  has,  however,  been  decided,  in 
another  state,  that  one  having  the  leasehold  interest  in  part  of  the 
premises  cannot,  in  ejectment  against  him  to  enforce  the  condition 
as  to  that  part,  assert  in  defense  that  the  landlord  did  not  seek 
to  enforce  it  against  another  part,  in  the  possession  of  another 
tenant.309 

k.  Effect  of  enforcement  of  forfeiture.  The  effect  of  the  en- 
forcement of  a  forfeiture  is  to  terminate  the  tenancy,  and,  ordi- 
narily, the  rights  and  obligations  connected  therewith.^io  There- 
after, for  instance,  the  tenant  cannot  usually  assert  a  right  to  re- 
move fixtures  annexed  by  him  to  the  premises,^!!  nor  assert  a 
right  to  emblements.312    j^j^i  n  has  been  decided  that,  when  the 

304  See  post,  §  274  b.  Law    Rep.    1327,    91    S.    W.    714,    a 

305  Pomeroy,  Equity  Jurisprudence,  clause  that  in  case  the  lessee  con- 
§§  459,  460.  That  an  injunction  tinued  in  possession  after  the  ex- 
against  the  tenant's  use  of  the  prem-  piration  of  the  term  or  after  for- 
ises  after  breach  of  a  condition  is  feiture  he  should  hold  in  accord  with 
not  the  landlord's  proper  remedy,  the  terms  of  the  lease  was  given  the 
see  Kramer  v.  Amberg,  53  Hun,  427,  effect,  apparently,  of  making  the  les- 
6  N.  Y.  Supp.  303.  see  a  tenant  of  the  lessor   for  the 

300  Gunning  v.   Sorg,  214   111.   616,  original    term,    even    after    re-entry 

73  N.  E.   870.  for     condition     broken.       How     the 

307  Ocean     Grove    Land     Ass'n    v.  term  could  be  forfeited  and  yet  still 

Berthall,   62  N.   J.   Law,  88,  40  Atl.  exist   in    the    lessee   is   not   entirely 

779.  clear. 

30R  See  ante,  note  181.  sii  See  post,  §  242  d.     But  one  who 

309  Main  v.  Green,  32  Barb.  (N.  has  sold  articles  to  the  tenant,  re- 
Y.)  448,  33  Barb.  136.  See  Stuyve-  taining  title  in  himself,  can  remove 
sant  V.  Grissler,  12  Abb.  Pr.  (N.  them.  "Webster  v.  Bates  Mach.  Co., 
S.)    6.  64  Neb.   30G,   89   N.  W.   789. 

310  In   Marshall   v.   Davis,   28   Ky.  312  See  post,  §  251  d.     It  has  been 


§  194 


UNDER  EXPRESS  CONDITION.  1407 


statute  makes  the  service  of  a  declaration  in  ejectment  equivalent 
to  a  re-entry,  the  tenant  cannot  claim  the  crops,  even  though  they 
were  severed  by  him  before  the  judgment  in  such  action  in  favor  of 
the  landlord,  the  possession  obtained  by  the  landlord  under  the 
judgment  relating  back  to  the  date  of  the  service  of  the  declara- 
tion.313  It  has  been  decided  in  one  state  that  one  to  whom  the 
tenant  has  sold  the  crops  before  any  default  stands  in  a  better  po- 
sition than  the  tenant  in  this  regard,  and  may  claim  them,  even 
though  not  actually  severed,  as  against  the  landlord  re-entering 
for  a  forfeiture,3i4  while  elsewhere  it  was  held  that  a  mortgagee 
of  the  crops  has  no  greater  rights  than  the  tenant  himself  and 
cannot  claim  them  as  against  the  landlord  in  such  case,^!^  a  view 
which  seems  more  in  accordance  with  the  generally  accepted  rules 
as  to  the  effect  of  a  forfeiture. 

A  subtenant  is,  ordinarily  at  least,  entitled  to  emblements  upon 
the  termination  of  his  interest  by  reason  of  an  act  of  forfeiture 
on  the  part  of  the  principal  tenant,  although  the  latter  is  not 
so  entitled.316  But  no  such  right  exists  in  favor  of  the  subtenant, 
it  has  been  decided,  if  he  took  his  sublease  and  sowed  the  crop 
after  the  service  of  a  declaratian  in  an  action  by  the  principal 
landlord  to  enforce  the  forfeiture,  such  service  being,  by  statute, 
equivalent  to  a  re-entry .^^"^ 

By  the  enforcement  of  the  forfeiture,  the  same  estate  becomes 
revested  in  the  lessor,  or  his  transferee,  as  was  vested  in  the 
lessor  at  the  time  of  making  the  lease,3i8  and  his  rights  take  pre- 
cedence of  all  mesne  charges  and  incumbrances.^!^  So  a  mort- 
gage,22o  or  other  lien,32i  arising  or  created  since  the  making  of 

held  that  the  fact  that  the  landlord  (Md.)  139;  Samson  v.  Rose,  65  N.  Y. 

denied  the  tenant's  right  to  harvest  411. 

a  crop  and  that  he  repaired  a  fence        sit  Samson  v.  Rose,  65  N.  Y.  411. 

does  not  show  a  re-entry,  so  as  to        sis  Co.  Litt.  202  a. 

pre'-liide  the  tenant  from  thereafter        sia  Bac.  Abr.,  Conditions  (O,  4). 

taking    the    crop.     See     Somers    v.        320  Abrahams    v.    Tappe,    60    Md. 

Loose,  127  Mich.  77,  86  N.  W.  386.  317;    Crandall  v.   Sorg,  99  111.  App. 

313  Samson  v.  Rose,  65  N.  Y.  411.  22. 

314  Nye  V.  Patterson,  35  Mich.  413;  321  Williams  v.  Vanderbilt,  145  111. 
Carney  v.  Mosher,  97  Mich.  554,  56  238,  34  N.  E.  476,  21  L.  R.  A.  489,  36 
N.  W.  935.  Am.  St.  Rep.  486;  Mills  v.  Matthews, 

315  Gregg  V.  Boyd,  69  Hun,  588,  23  7  Md.  315;  Gable  v.  Preachers'  Fund 
N.  Y.  Supp.  918.  Soc,  59  Md.  455;  Lenderking  v.  Ros- 

3i6Bevans  v.  Briscoe,  4  Har.  &  J.    enthal,  63  Md.  28,  52  Am.  Rep.  495. 


1408  FORFEITURE  OF  LEASEHOLD.  §  I94 

the  lease,  is  absolutely  divested.  The  interest  of  one  claiming  as 
subtenant  under  the  lessee  or  under  an  assignee  of  the  lessee  is 
also  divested  by  the  assertion  of  the  forfeiture.322 

It  w^as  decided  in  England,  under  the  old  practice  in  eject- 
ment, that,  after  the  rendition  of  a  judgment  for  the  landlord 
in  such  an  action  brought  to  enforce  a  forfeiture,  the  tenant  w^as 
to  be  considered,  in  point  of  law,  as  a  trespasser  from  the  day 
of  the  demise  laid  in  the  declaration,  and  that  therefore  he  had, 
at  an  intervening  day,  no  interest  in  the  crops  on  v^^hieh  an  ex- 
ecution against  the  tenant  could  then  be  validly  levied.^ss  On 
a  like  theory,  since  the  abolition  of  the  fictions  in  ejectment,  an 
execution  levied  on  the  crops  after  the  date  of  the  landlord's  re- 
entry, or  of  whatever  act  on  his  part  might  be  regarded  as  equiva- 
lent thereto,  would  be  nugatory  as  against  the  landlord.  It 
would  seem,  indeed,  that  the  crops  being,  until  severed,  a  part  oF 
the  land,  a  re-entry  by  the  landlord  would  take  precedence  of  an 
execution  which  may  have  been  levied  at  any  time  previous  to 
such  re-entry,  unless  the  levy  is  to  be  regarded  as  a  constructive 
severance. 2-* 

After  a  re-entry  under  a  provisioji  that,  on  default,  the  lessor 
might  re-enter  and  repossess  and  enjoy  the  premises  as  of  his 
former  estate,  the  tenant  cannot,  it  has  been  decided,  claim  pay- 
ment for  improvements  under  a  stipulation  in  the  lease  for  such 
payment  ' '  at  the  expiration  of  the  term. '  '^^s 

There  are  in  New  York  somewhat  early  decisions  to  the  effect 
that,  if  the  landlord  takes  possession  after  the  tenant  has  vacat- 
ed, with  rent  in  arrear,  and  the  landlord,  or  one  claiming  under 
him,  thereafter  holds  possession  for  a  number  of  years,  it  will 
be  presumed,  in  favor  of  the  latter 's  title,  that  he  re-entered  under 
a  clause  of  re-entry  in  the  lease.^-^     At  the  present  day,  pre- 

But    a    forfeiture,    so    called,    by  Ir.   318,  where  such  a  view  is  inti- 

agreement,      without     any      ground  mated,  but  the  decision  was  finally 

therefor,   cannot    divest   the   lien   of  based  on  the  fact  that  the  proceed- 

an     execution     against     the     lessee  ing  was  under  the  statute  to  recover 

(Farnum  v.  Hefner,  79  Cal.  575,  21  possession   for  nonpayment  of  rent, 

Pac.   955,  12  Am.  St.  Rep.  174),  or,  and  not  at  common  law  to  enforce 

presumably  any  other  lien.  a  forfeiture  for  breach  of  condition. 

322  See  ante,  at  notes,  187,  188.  32.5  Bates    v.     Johnston,    58    Hun, 

323  Hodgson  V.  Gascoigne,  5  Barn.  528,  12  N.  Y.  Supp.  403;  Id.,  126  N. 
&  AJd.   88.  Y.  681,  28  N.  E.  249. 

324  See  Russell  v.  Moore,  8  L.  R.  326  in     Jackson     v.    Demaxest,    2 


§  194 


UNDER  EXPRESS  CONDITION.  1409 


sumably,  in  such  a  case,  the  title  of  the  la.ndlord  to  the  premises, 
free  from  any  rights  in  the  tenant,  would  be  supported  upon  the 
theory,  not  of  a  presumption  of  re-entry,  but  of  a  surrender  by 
operation  of  law.327 

A  provision  that  on  re-entry  the  subleases  should  "belong  to" 
the  head  landlord  has  been  held  not  to  create  the  relation  of 
landlord  and  tenant  between  him  and  the  sublessees.328 

The  effect  of  the  enforcement  of  a  forfeiture  of  the  tenant's 
interest,  as  terminating  the  liability  for  rent,  and  the  operation 
of  the  occasional  stipulations  looking  to  the  continuance  of  the 
tenant's  liability  in  that  respect  in  spite  of  the  forfeiture,  have 
been  previously  discussed.^^^ 

1.  Relief  against  forfeiture — (1)  General  rule.  As  a  general 
rule,  courts  of  equity  will  oiot  grant  relief  from  forfeiture  for  a 
cause  other  than  the  non-payment  of  a  sum  of  money,33o  j^  -tj^e  ab- 
sence of  fraud,  accident,  surprise  or  mistake.  So  relief  has  been 
refused  when  the  asserted  forfeiture  was  for  breach  of  a  covena*nt 
not  to  assicrn  nor  underlet  without  the  landlord's  consent,^^^ 
not  to  permit  the  existence  of  a  way  over  the  land,332  to  repair 
the   premises,^^^   to   make   improvements,^^^    to   refrain    from   a 

Gaines  (N.  Y.)  382,  which  was  not  a  szs -Williams  v.  Michigan  Cent.  R. 
case  of  a  lease,  properly  speaking,  Co.,  133  Mich.  448,  95  N.  W.  708,  103 
but  of  a  conveyance  in  fee  with  a  Am.  St.  Rep.  458. 
clause  of  re-entry  for  nonpayment  329  See  ante,  §  182  j. 
of  rent,  the  grantee  vacated,  and  the  330  See  Gregory  v.  Wilson,  9  Hare, 
grantor  then  sold  to  one  who  occu-  683;  Hill  v.  Barclay,  18  Ves.  56; 
pied  fourteen  years,  and  a  valid  re-  Nokes  v.  Gibbon,  3  Drew.  681;  Bar- 
entry  was  presumed.  In  Jackson  v.  row  v.  Isaacs  [1891]  1  Q.  B.  417; 
Stewart,  6  Johns.  (N.  Y.)  34,  a  case  Sheets  v.  Selden,  74  U.  S.  (7  Wall.) 
of  a  lease  for  999  years,  a  re-entry  416. 

was  presumed  after  a  lapse  of  twen-  331  wafer  v.  Mocato,  9  Mod.  112; 
ty-two  years  from  the  landlord's  re-  Hill  v.  Barclay,  18  Ves.  Jr.  56;  Bar- 
sumption  of  possession.  In  Jack-  row  v.  Isaacs  [1891]  1  Q.  B.  417; 
son  V.  Walsh,  3  Johns.  (N.  Y.)  226,  Easton  Tel.  Co.  v.  Dent  [1899]  1  Q. 
possession  for  nine  years,  and  in  B.  835;  Roberts  v.  Geis,  2  Daly  (N. 
Jackson  v.  Elsworth,  20  Johns.  (N.  Y.)  535;  Sheets  v.  Selden,  74  U.  S. 
Y.)     180,    for    ten    years,    was    held  (7  Wall.)   416. 

insufficient  to  raise  a  presumption  of  332  Descarlett   v.    Dennett,   9   Mod. 

re-entry;   and  in  Garrett  v.  Scouten,  22. 

3  Denio    (N.  Y.)    334,  it  was  recog-  333  Hill  v.  Barclay,  18  Ves.  Jr.  56; 

nized  that  mere  lapse  of  time,  un-  Gregory    v.    Wilson,    9    Hare,    683; 

accompanied  by  a  change  of  posses-  Bracebridge    v.     Buckley,    2     Price, 

sion,  raised  no  such  presumption.  200;  Job  v.  Banister,  2  Kay  &  J.  374. 

327  See  ante,  §  190  c.  834  Nokes  v.  Gibbon,  3  Drew.  681. 

L.  and  Ten.  89. 


1410  FORFEITURE  OF  LEASEHOLD.  §  I94 

particular  use  of  the  preniises,335  and  to  insure.336  There  are, 
however,  occasional  decisions  in  which  the  courts  have  shown  a 
disposition  to  relieve  against  a  forfeiture  for  failure  to  repair  or 
improve,  in  view  of  the  particular  circumstances  of  the  case.^^T 
So  in  one  ease  it  was  held  that  relief  would  be  given  against  a 
forfeiture  for  delay  in  making  improvements,  it  appearing  that 
the  delay  was  not  willful,  that  the  lessee  had  made  preparations 
to  carry  on  the  work,  that  no  demand  was  made  for  greater  haste, 
and  that  no  injury  resulted  to  the  lessor  from  the  delay,  and  it 
further  appearing  that  the  requirement  that  the  work  be  done 
within  a  certain  time  was  imposed  in  order  to  obtain  satisfactory 
security  for  the  payment  of  the  rent,  and  that  this  was  promptly 
paid,338  In  another  case,  on  the  theory  that  equity  will  relieve 
in  case  of  a  forfeiture  involving  a  hardship  on  the  tenant,  if  com- 
pensation can  be  made,  it  was  held  that,  though  tlie  landlord 
was  given  a  right  of  re-entry  in  case  the  tenant  failed  to  make 
certain  improvements,  and  he  actually  re-entered  for  that  cause, 
the  tenant  was  entitled  to  a  specific  performance  of  the  lessor's 
agreement,  contained  in  the  instrument  of  lease,  to  convey  the 
premises  to  the  lessee  on  payment  of  a  sum  named.^^^ 

(2)  Fraud,  mistake,  accident  and  surprise.  What  circum- 
stances will  constitute  such  fraud,  mistake,  accident  or  surprise 
as  will  justify  a  court  of  equity  in  granting  relief  does  not  clearly 
appear  from  the  decisions.  Occasionally  the  courts  have  asserted 
the  view  that  if  the  landlord  has,  by  his  conduct,  induced  the 
tenant  to  believe  that  a  strict  performance  of  the  covenant  or 
condition  will  not  be  insisted  on,  an  attempt  on  his  part  to  en- 
force the  forfeiture  involves  a  fraud,  entitling  the  tenant  to 
equitable  relief.^^*'     By  other  cases,  as  before  stated,  such  action 

335  Macher  v.  Foundling  Hospital,  465,  45  N.  E.  933,  57  Am.  St.  Rep. 
1  Ves    &  B.  188.  472.     Relief    against    forfeiture    for 

336  Reynolds  v.  Pitt,  19  Ves.  Jr.  the  purpose  of  obtaining  specific 
134-  Rolfe  V.  Harris,  2  Price,  206,  performance  of  a  covenant  to  con- 
note* "White  V.  Warner,  2  Mer.  459;  vey  was  refused  when  the  term  had 
Thompson  v.  Guyon,  5  Sim.  65.  expired  by  lapse  of  time  before  trial 


337  Hack  V.  Leonard,  9  Mod.  91 
Sanders  v.  Pope,  12  Ves.  Jr.  282 
Bargent    v.    Thomson,    4    Giff.    473 


of    the    proceeding   for    relief.     Cov- 
entry V.  McLean,  21  Ont.  App.  176. 
340  Horton    v.   New   York   Cent.   & 


Bamford  v.  Creasy,  3  Giff.  675.  H.  R.  R.  Co..  12  Abb.  N.  C.   (N.  Y.) 

3nRHaf;ar  v.   Buck,   44   Vt.    285,    8  30;  Thropp  v.  Field,  26  N.  J.  Eq.  (11 

Am.   Rpp.    368.  C.  E.  Green)    82. 
83oLundin  v.  Schoeffel,  167  Mass. 


§  194 


UNDER  EXPRESS  CONDITION.  1411 


on  the  part  of  the  landlord  is  regarded  rather  as  a  waiver  of  the 
condition.341  So  far  as  such  a  state  of  facts  may  furnish  grounds 
for  equitable  relief,  it  seems  that  it  might  be  regarded  as  a  case 
of  surprise  rather  than  of  fraud. 

The  action  of  the  landlord  in  eluding  the  tenant's  efforts  to  pay 
rent  when  due,  followed  hy  an  action  to  enforce  a  forfeiture  for 
nonpayment,  presents  a  case  of  fraud,  and  equity  will  relieve  in 
such  case.^'i^ 

Eelief  has  been  accorded  as  for  mistake  induced  by  the  land- 
lord when,  after  notifying  the  tenant  to  repair  within  six  months, 
in  accordance  with  a  covenant  by  the  tenant  to  repair  within  that 
length  of  time  after  notice,  the  parties  entered  upon  negotiations 
looking  to  a  surrender  of  the  lease,  and  it  was  decided  that  a 
forfeiture  would  not  be  allowed  until  six  months  had  elapsed,  ex- 
clusive of  the  time  during  which  the  negotiations  were  pending.^^a 
And  relief  was  given,  on  the  ground  of  accident  and  mistake, 
against  a  forfeiture  for  failure  to  insure,  when  the  tenant 's  agent 
sought  to  renew  the  insurance,  but  the  insurer  made  the  policy 
payable  to  a  creditor  of  the  lessee  instead  of  to  the  la>ndlord,  as 
required  by  the  lease,  and  neither  the  tenant  nor  the  agent 
knew  of  this  change,  and  both  intended  in  good  faith  to  comply 
with  the  provision  of  the  lease  in  this  respect.^^^  Upon  the  same 
ground,  relief  was  given  against  a  forfeiture  for  breach  of  a 
condition  against  making  such  a  noise,  while  preparing  the  prem- 
ises for  occupation,  as  to  disturb  performances  in  the  landlord's 
theatre  on  the  adjoining  premises,  where  the  tenant's  employee, 
while  testing  the  wall,  though  told  to  be  careful  as  to  noise,  drove 
a  chisel  through  the  wall  for  about  a  minute,  it  not  having  oc- 

841  See  ante,  §  194  1  (3).  cient  time  for  its  importation,  and  a 

In  Lilley  v.  Fifty  Associates,  101  threatened  re-entry  for  nonpayment 

Mass.  432,  it  was  decided  that  where  of  rent  would  be  relieved  against  on 

the  yearly  rent  reserved  in  a  lease  the  ground,  as  stated,   that  the   at- 

for  a  thousand  years  was  "ten  tons  tempt  to  enforce  the  forfeiture  was 

of  Russia  Old  Sables  iron,"  and  the  unjust  and  inequitable. 

equivalent  had  been  accepted  in  cash  342  Young  v.  Ellis,  91  Va.   297,  21 

for   forty   years,   and    for   six   years  S.  E.  480. 

such    iron    had    not    been    imported  343  Hughes  v.  Metropolitan  R.  Co., 

for  the  market,  a  notice  dated  De-  2  App.  Cas.  439. 

cember    12th,   that   rent   due   March  344  Mactier    v.    Osborn,    146    Mass. 

1st   must  be  paid   in  iron,  was  un-  399,  15  N.  E.  641,  4  Am.  St.  Rep.  323. 

reasonable,    this    not    giving    suffi- 


1412  FORFEITURE  OF  LEASEHOLD.  |  I94 

curred  to  him  that  a  performance  was  going  on  at  the  time.^^s 
But  where  a  breach  of  a  covenant  against  subletting  without  con- 
sent was  due  to  forgetfulness  on  the  part  of  the  tenant's  agent 
that  the  landlord's  assent  was  required,  the  court  refused  to 
grant  relief,  for  the  reason  either  that  this  was  not  a  ''mistake" 
within  the  meaning  of  the  rule,  or  that,  if  a  mistake,  it  was  due 
to  negligence  for  which  the  tenant  was  responsible.^^^  Relief  on 
the  ground  of  accident  and  surprise  was  given  in  one  case  against 
a  forfeiture  for  nonrepair  within  three  months  after  notice,  where 
it  appeared  that,  out  of  twenty-two  items  of  repair,  twenty  had 
been  proceeded  with  and  fourteen  completed,  that  the  tenant  had 
honestly  endeavored  to  make  the  repairs,  and  that  they  had,  in 
part,  been  delayed  by  the  weather.^^"^ 

(3)  Nonpayment  of  money.  In  a  court  of  equity,  a  clause  of 
re-entry  for  nonpayment  of  rent  is  regarded  as  intended  only 
to  secure  the  payment  of  the  rent,  and  such  a  court  will,  ordinarily 
at  least,  upon  the  payment  of  rent  and  of  costs  and  expenses, 
relieve  against  the  forfeiture  and  continue  the  tenant  in  the  pos- 
session.348  The  right  of  the  tenant  to  such  relief  in  equity,  appar- 
ently already  well  established,^^^  was  recognized  and  confirmed 
by  the  statute  of  4  Geo.  2,  c.  28,  §§  3,  4,  which  imposed  certain  con- 
ditions as  to  the  payment  into  conrt,  by  the  tenant  seeking  relief, 
of  the  amount  of  the  rent  claimed  and  of  the  costs  in  the  eject- 
ment suit.350    This  statute  also  required  that  a  bill  for  equitable 

s4-5Lundin  v.  Schoeffel,  167  Mass.  Co.  v.  Wakefield,  72  Wis.  204,  39  N. 

465,  45   N.  B.   933,   57  Am.  St.  Rep.  W.   136,   1  L.  R.  A.   178;    Sheets   v. 

472.  Selden,  74  U.  S.   (7  Wall.)  416, 

3^6  Barrow  v.  Isaacs  [1S91]  1  Q.  B.  In  Fleming  v.  Fleming  Hotel  Co., 

417.  69  N.  J.  Eq.  S^^ei  Atl.  157,  it  was 

3*7  Bargent  v.  Thomson,  4  Giff.  473,  held    that,    a    receiver    having    been 

per    Stuart,    V.    C.     And    see    Bam-  appointed  for  the  lessee,  the  equity 

ford  V.  Creasy,  3  Giff.  675.  court  would  not  grant  a  petition  of 

348  Wadman    v.    Calcraft,    10    Ves.  the  lessor  seeking  a  forfeiture  of  the 

Jr.  67;  Howard  v.  Fanshawe  [1895]  lease  until  it  appeared  that  the  re- 

2   Ch.    581;    Abrams   v.   Watson,   59  ceiver  was  unable   or   unwilling  to 

Ala.    524;    Wilson   v.   Jones,   64   Ky.  pay  the  rent. 

(1   Bush)    173;    Mactier   v.    Osborn,  349  See    Taylor   v.   Knight,   4    Vin. 

146  Mass.  399,  15  N.  B.  641,  4  Am.  Abr.,  Chancery    (Y)    pi.   31;    Doe  d. 

St.  Rep.  323;  Hagar  v.  Buck,  44  Vt.  Jersey  v.    Smith,   7  Price,   281,    326. 

285,  8  Am.  Rep.  368;  Horton  v.  New  350  See   Bowser  v.   Colby,   1   Hare, 

York  Cert.  R.  Co.,  12  Abb.  N.  C.  30,  109;   Howard  v.  Fanshawe   [1895]  2 

102   N.   Y.    697;    Sunday   Lake  Min  Ch.  581. 


»   jg^  UNDER  EXPRESS  CONDITION.  1413 

relief  be  filed  within  six  months  after  the  execution  on  the  judg- 
ment in  ejectment,  a  failure  to  do  this  barring  all  relief,  other 
than  by  writ  of  error.  The  above  statute  also  provided  that  if 
the  tenant  at  any  time  before  trial  in  the  ejectment  should  pay 
or  tender  the  rent  and  costs,  all  further  proceedings  in  the 
ejectment  should  cease.  Even  before  this  statute,  it  had  been  the 
practice  of  the  court  of  law  in  which  the  ejectment  was  pending 
thus  to  relieve  the  tena^nt  upon  payment  of  the  rent  at  any  time 
before  exeeution,^"  and  the  effect  of  the  statute  was  to  restrict 
such  relief  in  the  ejectment  suit  to  the  time  before  trial.^ss 

The  fact  that  the  statute  4  Geo.  2,  c.  28,  above  referred  to, 
provides  in  terms  for  relief  only  when  the  landlord's  right  of 
re-entry  is  enforced  by  action  of  ejectment,  has  been  regarded  as 
not  excluding  relief  when  the  landlord,  instead  of  maintaining 
ejectment,  makes  an  actual  re-entry  on  the  premises.s^sa 

In  a  number  of  states  there  are  statutory  provisions  enabling 
the  tenant  to  obtain  relief  from  a  forfeiture  for  nonpayment  of 
rent  by  paying  the  rent  and  costs,  either  in  the  proceeding  brought 
to  enforce  the  forfeiture,  or  by  a  separate  proceeding  in  equity .^sa 
The  right  of  the  tenant  to    obtain    a    stay  of  the  former  pro- 

sBiGregg'sCase,  2  Salk.  59G;  Phil-  rent   and   costs,  or   mortgagee   may 

lips  V    Doelittle,  8  Mod.  345;  Smith  protect  his  interest  by  paying  rent, 

V    Parks    10  Mod.  383;   Goodtitle  v.  costs     and     charges     within     three 

Holdfast',  2  Strange,  900.  months   after   judgment  for   posses- 

352  See  Roe  d.  West  v.  Davis,  7  sion) ;  Neiv  Jersey,  2  Gen.  St.  p. 
East  363-  Doe  d.  Harris  v.  Masters,  1916,  §§  7,  8  (Lessee  or  person  claim- 
2  Barn   &  C   490.  i^S  under  him  may  file  bill  in  equity 

352a  Howard    v.    Fanshawe    [1895]  for   relief,   but   not   more   than   six 

2  f-,^    gg-j^  months    after    execution.     Same    as 

353  7Z?tnots,  Kurd's  Rev.  St.  1905,  c.  English  statute);  New  Yorlc  Code 
80  §  4  (May  pay  rent  in  arrear  and  Civ.  Proc.  §  1508  (Substantially 
costs  before  judgmen/  or  before  ex-  same  as  Minnesota) ;  North  Carolina 
ecution  of  writ  of  posi^ession.  or  may  Revisal  1905,  §  2007  (Tenant  may 
obtain  relief  within  six  months  by  tender  or  pay  into  court,  during  the 
bill  in  equity) ;  Minnesota  Rev.  action,  the  rent  and  costs) ;  Oregon, 
Laws  1905  §  3328  (At  any  time  be-  Bell.  &  C.  Codes,  §  338  (Substantial- 
fore  possession  delivered  to  plain-  ly  same  as  North  Carolina);  Yir- 
tiff  on  recovery  by  him,  tenant  may  ginia  Code  1904,  §§  2796,  2800  (Ten- 
be  restored  to  possession  on  paying  ant  or  his  mortgagee  may  pay  in- 
rent,  interest  and  costs);  Missouri  terest  and  costs,  or  file  a  bill  in 
Rev'  St  1899,  §§  4120,  4122  (Tenant  equity  for  relief  within  twelve 
may  put  an  end  to  proceedings  by  months) ;  West  Virginia  Code  1906, 
tendering  or  paying  into  court  the  §§  3410-3413  (Same). 


1414  FORFEITURE  OF  LEASEHOLD.  §  194 

eeeding  by  the  making  of  such  payment  has  been  recognized  even 
without  reference  to  any  statute,  in  this  country  as  well  as  in 
Sngland.354  A  tender  of  the  rent  will  be  as  effectual  to  entitle  the 
tenant  to  relief  as  would  payment,  provided,  it  seems,  the  tender 
is  kept  good.2^' 

The  court  may  occasionally  refuse  to  relieve  against  a  for- 
feiture even  for  nonpayment  of  rent.  For  instance,  relief  will  not 
be  given  in  case  of  forfeiture  for  nonpayment  of  rent,  if  the 
tenant  has  been  guilty  of  breach  of  other  covenants  for  which  a 
right  of  re-entry  is  given,  and  against  which  equity  Avill  not 
relieve,356  nor  if  the  restoration  of  the  tenant  to  the  undisturbed 
possession  of  the  premises  will  endanger  the  rights  of  the  land- 
lord,^^'^  nor  if  the  landlord  or  other  parties  interested  cannot  be 
put  in  the  same  position  as  before.^^^  And  in  one  case,  where  re- 
lief was  sought  after  the  expiration  of  the  term,  in  order  that  the 
tenant  might  avail  himself  of  a  covenant  for  renewal,  it  was 
decided  that  even  if  equity  would  ever  relieve  after  the  expira- 
tion of  the  term,  it  would  not  do  so  in  that  case,  as  there  were 
circumstances  of  fraud  which  would  preclude  enforcement  of 
such  covenant.^^^ 

While  it  is  ordinarily  necessary  that  the  tenant,  in  order  to 
obtain  relief  from  forfeiture  for  nonpayment  of  rent,  should  pay 
or  tender  to  the  landlord  the  rent  due,  or  pay  it  into  court,^^° 

SI54  Atkins  v.  Chilson,  52  Mass.  (11  Bowser  v.  Colby,  1  Hare,  109;  Wad- 
Mete.)     112;     Planters'    Ins.    Co.    v.  man  v.  Calcroft,  10  Ves.  Jr.  67. 
Dlggs,     67     Tenn.     (8    Baxt.)     563;  35- Sunday  Lake  Mln.  Co.  v.  Wake- 
Abrams  v.  Watson,  59  Ala.  524,  and  field,  72  Wis.   204,  39  N.   W.  136,  1 
ante,  note  351.  L.  R.  A.  178. 

355  Chapman  v.  Kirby,  49  111.  211;  S58  stanhope  v.  Haworth,  3  Times 
North  Chicago  St.  R.  Co.  v.  Le  Grand  Law  R.  34. 

Co.,  95  111.  App.  435;   Burnes  v.  Mc-        359  Coventry    v.    McLean,    21    Ont. 

Cubbin,    3    Kan.    222,    87    Am.    Dec.  App.    176.     Compare    ante,    at    note 

468'    Lewis  v.  City  of  St.  Louis,  69  339.     See,  also,  as  to  circumstances 

Mo.  595;   City  of  Carondolet  v.  Wol-  under   which    equity   might    not    re- 

fert,  39  Mo.  305;   Wacholz  v.  Gries-  lieve,  citations  in  note  to  Maginnis 

graber,  70  Minn.  220,  73  N.  W.  7.     In  v.   Knickerbocker   Ice  Co.,  69  L.   R. 

the  last  cited  case  it  was  held  that  A.  at  p.  833.     This  note  contains  a 

the  landlord  was  liable  in  damages  full    collection    of    authorities    upon 

If  he  forcibly   dispossessed  the  ten-  the      subject      of     equitable      relief 

ant    after    tender    of    the    rent,    al-  against  forfeiture  of  an  estate. 
though   he  was,   under  the   statute,        sco  o'Mahony  v.  Dickson,  2   Schor 

entitled  to  be  restored  to  possession,  ales  &  L.  400. 

356  Nokes  V.  Gibbon,  3  Drew.  693; 


§  194 


UNDER  EXPRESS  CONDITION.  1415 


this  was  in  one  case  dispensed  with  where  the  landlord  was  in- 
debted to  the  tenant  in  more  than  the  amount  of  the  arrears  of 
rent,36i  and  in  another  where  the  dealings  between  the  parties 
were  so  complicated  that  an  account  could  not  be  taken  at  law, 
and  the  tenant  filed  a  bill  in  equity  for  an  accounting  and  to  have 
the  balance  applied  on  the  rent.^^^ 

In  several  cases  relief  has  been  given  against  forfeiture  for  non- 
payment of  taxes,  on  the  theory  that  the  clause  of  re-entry  is, 
as  in  the  case  of  the  rent,  intended  merely  to  secure  payment.^^^'"' 
Relief  has,  however,  been  refused  when  the  tenant  had  allowed  the 
taxes  for  several  years  to  be  in  arrear,  the  property  had  been 
sold  for  taxes,  and  he  had  failed  to  redeem  from  the  sale.^e^  And 
generally,  it  appears,  he  is  not  entitled  to  relief  after  the  land  has 
been  sold  for  taxes,  in  the  absence  at  least  of  a  showing  that  he 
allowed  the  property  to  go  to  sale  through  accident  or  mistake.^os 
The  fact  that  the  tax  sale  might,  upon  investigation,  prove  to  be 
invalid,  does  not  give  him  a  right  to  relief  in  such  a  case.^sa 

A  court  having  jurisdiction  of  the  parties  may  give  relief,  even 
though  the  premises  are  situated  in  another  state,  and  it  can  con- 
sequently not  put  the  tenant  in  possession.^sT 

(4)     Persons  in  favor  of  and  against  whom  relief  given.  Relief 

361  Abrams  v.  Watson,  59  Ala.  524.  the  landlord  owed  the  tenant  more 

And  see  Sheets  v.  Selden,  74  U.  S.  than  the  amount  of  the  rent. 

(7  Wall.)   416,  where  it  is  said  that  362  O'Connor  v.  Spaight,  1  Schoales 

the  tenant  should  have  tendered  the  &  L.  305.     And  see  Beasley  v.  Darcy. 

difference  between  the  rent  due  and  2  Schoales  &  L.  403. 

what    he    claimed    to    be    due    from  363  Giles  v.  Austin,   62  N.  Y.  4S6; 

the   landlord.     But   in   O'Mahony   v.  Garner  v.  Hannah,  13  N.  Y.  Super. 

Dickson,  2  Schoales  &  L.  400,  it  was  Ct.   (6  Duer)   262;   Planters  Ins.  Co. 

decided  that  if  the  question  of  the  v.    Diggs,    67   Tenn.    (8   Baxt.)    563; 

accounts  is  not  too  complicated  to  be  Abrahams    v.    Tappe,     60    Md.     317 

tried  at  law,  and  consequently  could  (semble);   Buckley  v.  Beigle,  8  Ont. 

be   brought    forward    in   the    action  85. 

of  ejectment  to  enforce  the  forfeic-  sei  Bacon  v.  Park,  19  Utah,  246,  57 

ure,  a  bill  did  not  lie  by  the  tenant  Pac.   28. 

for  an  account  and  to  be  restored  to  365  Gordon      v.      Richardson,      185 

possession     on     payment     of     what  Mass.   492,  70  N.  E.  1027,   69  L.  R. 

might  appear  due,  but  that  he  must  A.  867. 

bring  the  rent  and  costs  into  court.  see  Kann  v.  King,  204  U.  S.  43,  27 

And  in  Faylor  v.  Brice,  7  Ind.  App.  Sup.  Ct.  213. 

551,  34  N.  E.  833,  it  was  decided  that  367  Sunday  Lake  Min.  Co.  v.  Wake- 

a  forfeiture  for  nonpayment  of  rent  field,  72  Wis.  204,  39  N.  W.  136,  1  L. 

was  not  prevented  by  the  fact  that  R.  A.  178. 


1416  FORFEITURE   OF  LEASEHOLD.  §  194 

may  be  granted  in  favor  of  an  assignee  of  the  original  lessee, 
whether  the  assignment  is  absolute  or  by  way  of  mortgage,368  and 
also  in  favor  of  a  subtenant,^*'^  but  a  subtenant  apart  cannot  ob- 
tain relief  as  to  his  part  only,  but  he  must  pay  all  the  arrears  of 
rent  due  on  the  whole  premises.^""  A  creditor  of  the  tenant,  hav- 
ing a  judgment  lien  against  the  property,  has  also  been  granted 
relief  against  a  forfeiture  incurred  by  the  tenant.^ '^^ 

Relief  may  be  granted  against  one  to  whom  the  lessor  has  trans- 
ferred the  reversion  after  the  act  of  forfeiture,  to  the  same  ex- 
tent as  against  the  lessor  himself,  since  the  rights  of  the  tenant 
in  this  regard  cannot  be  affected  by  such  a  transfer.^'^^ 

It  has  been  held  that  under  a  statute  giving  a  right  of  redemp- 
tion to  a  mortgagee  of  the  leasehold  as  well  as  to  the  tenant, 
and  providing  that  he  must  exercise  this  right  within  six  months 
after  execution  on  the  judgment  in  ejectment,  the  six  months 
does  not  begin  to  run  against  a  mortgagee  upon  a  merely  nominal 
execution  of  the  writ  by  notification  to  the  tenant,  without  any 
open  and  notorious  change  of  possession.^^s 

S68  Doe  d.  Whitfield  v.  Roe,  3  under  a  statute,  but  the  court  ex- 
Taunt.  40-2;  Newbolt  v.  Bingham,  72  pressed  the  opinion  that  the  lessor 
Law  T.   (N.  S.)   S52.  had  a  common-law  right  thereto. 

369  Berney  v.  Moore,  2  Ridg.  App.  872  Abrams  v.  Watson,  59  Ala.  524; 
310.  Hagar  v.    Buck,   44   Vt.   285,   8  Am. 

370  Webber  v.  Smith,  2  Vern.  103.  Rep.  368. 

371  Corning  v.  Beach,  26  How.  Pr.  873  Newell  v.  Whigham,  102  N.  Y. 
(N.  Y.)  289.     The  relief  was  granted  20,  6  N.  E.  673. 


CHAPTER  XX. 

NOTI€E  TO  QUIT. 

§  195.     General  -^cmsiderations. 

196.  Particular  classes  of  tenancies. 

a.  Tenancy  for  years. 

b.  Tenancy  at  ■will. 

c.  Periodic  tenancies. 

d.  Tenancy  at  sufferance. 

197.  Waiver  or  modification  of  requirement. 

198.  By  and  to  whom  notice  to  be  given. 

199.  Form  and  language  of  notice. 

200.  Date  of  termination  of  notice. 

201.  Computation  of  period  of  notice. 

202.  Waiver  of  defects. 

203.  Service  of  notice. 

204.  Effect  of  giving  of  notice. 

205.  Withdrawal  or  waiver  of  notice. 

§  195.     Greneral  considerations. 

The  expression  "notice  to  quit"  refers  to  the  notice  which  is, 
by  law,  in  certain  cases,  necessary  to  be  given  by  one  party  to 
the  relation  of  landlord  and  teoiant,  to  the  other  party  thereto, 
in  order  that  the  tenancy  may  be  terminated.^  Though  the  ex- 
pression in  form  would  properly  apply  only  to  a  notice  by  the 
landlord  to  the  tenant,  since  the  tenant  cannot  well  notify  the 
landlord  "to  quit"  premises  which  are  in  the  former's  possession, 
it  is  nevertheless  applied  to  a  notice  by  the  tenant  of  his  inten- 
tion to  quit  the  possession. 

In  a  number  of  states  there  is  a  statutory  provision  authorizing 
the  landlord  to  terminate  the  tenancy,  upon  the  tenant's  default 
in  the  payment  of  rent,  by  giving  him  a  notice  of  a  prescribed 

1  As  to  the  nature  of  a  notice  to   Bellman,  4  Exch.  Mv.  201. 
quit,  see  the  opinions  in  Ahearn  v. 


1418  NOTICE  TO  QUIT.  §  I95 

number  of  days  to  that  effect.  The  subject  of  such  notice,  in 
effect  to  enforce  a  forfeiture  for  the  tenant's  default,  is  considered 
elsewhere. 2 

A  notice  to  quit  is  also  to  be  distinguished  from  the  demand  for 
possession  which,  by  the  common  law,  the  landlord  must  give,  in 
tlie  case  of  a  tenancy  at  will,  unless  he  has  otherwise  determined 
the  will,  before  bringing  an  action  of  ejectment.^  Likewise,  it 
is  to  be  distinguished  from  the  notice  or  demand  for  possession 
which  is  ordinarily,  by  statute,  required  as  a  condition  prece- 
dent to  the  maintenance  by  the  landlord  of  the  statutory  proceed- 
ing to  recover  possession  at  the  end  of  the  term,'*  and  which  is 
frequently  referred  to  as  a  "notice  to  quit." 

The  notice  necessary  to  be  given  by  the  landlord  or  the  tenant, 
in  order  to  exercise  an  option,  expressly  given  by  the  lease,  to  ter- 
minate the  tenancy  before  the  end  of  the  term  named,  has  been 
previously  referred  to.^  Occasionally  the  instrument  of  lease 
contains  a  provision  for  a  renewal  upon  the  giving  of  a  certain 
notice  by  the  tenant,  or  for  an  extension  of  the  term  in  the  absence 
of  a  notice  to  the  contrary  from  one  party  or  the  other.  Such  a 
notice  will  be  considered  in  connection  with  stipulations  for  re- 
newal.® 

There  is  no  necessity  of  a  notice  to  quit,  ordinarily,  unless  the 
relation  of  landlord  and  tenant  exists  between  the  parties.  A 
mere  trespasser  cannot  claim  such  a  notice,'''  and  so  one  who  enters 
as  tenant  cannot  assert  a  right  to  a  notice  from  a  person  claiming 
by  title  paramount,  he  being  a  mere  trespasser  as  to  such  person.'^" 

2  See  post,  §  274   d    (4).  *  See  post,   §  274  a    (3). 

3  See   ante,   §   13   b,   at  notes   403-        b  See  ante,  §  12  e  (4),  f, 
405.     The   courts  do  not   always  so        e  See  post,  §   223. 

distinguish  however.     See  e.  g.,  Den  ^  Kilburn  v.  Ritchie,  2  Cal.  145,  56 

d.  Mackey  v.  Mackey,  2  N.   J.  Law  Am.    Dec.    326;    Petty   v.   Malier,   54 

(1  Penning.)    400;   Chicago,  B.  &  Q.  Ky.    (15   B.   Mon.)    606;    Jackson   v. 

R.  Co.  V.  Knox  College,  34  111.  195;  Rogers,   1    Johns.   Cas.    (N.  Y.)    33; 

Murray   v.   Armstrong,   11   Mo.    209,  Jackson  v.   Robinson,   4   Wend.    (N. 

47  Am.  Dec.  151;    Bedford  v.  McBl-  Y.)    436;   Jackson  v.  Deyo,  3  Johns, 

herron.   2   Serg.   &   R.    (Pa.)    48,   in  (N.  Y.)  422,  3  Am.  Dec.  509;   Doe  d. 

which   cases,  by  the  statement  that  Borden   v.   Bell,    53   N.   C.    (8   Jones 

the  tenant   is    entitled   to  notice  to  Law)    294;    Neppach   v.    Jordan,    15 

quit  before  the  bringing  of  an  actioii  Or.   308,  14  Pac.  353;    Doe  v.   John- 

against    him    for    possession    is    ap-  ston,  2  McLean,  323,  Fed.   Cas.   No. 

parently  meant   that  a  demand  for  3,958. 

possession  must  be  first  made.  7a  Keech  v.  Hall,  1  Doug.  21;  Doe 


196 


TENANCY  FOR  YEARS. 


141? 


And  a  mere  licensee  or  servant  is,  usually  at  least,  not  entitled 

to  notice.^ 

§  196.     Particular  classes  of  tenancies. 

a.  Tenancy  for  years.  At  common  law  a  notice  to  quit  is 
unnecessary  in  order  to  terminate  a  tenancy  for  years  at  the  ex- 
piration of  the  term  named  in  the  lease,  each  party  being  charged 
with  knowledge  of  the  time  of  such  expiration.^  In  a  number 
of  states  it  is  expressly  provided  by  statute  that  no  notice  shall 
be  necessary  to  terminate  such  a  tenancy  at  the  time  named  in  the 
lease.io     In  a  few  states,  however,  the  statutes  seem  to  require 


d.  Pietland  v.  Hilder,  2  Barn.  & 
Adol.  782;  Roosevelt  v.  Hungate,  110 
111.  595;  Locke  v.  Coleman,  18  Ky. 
(2  T.  B.  Mon.)  12,  15  Am.  Dec.  118; 
Thackray  v.  Cheeseman,  18  N.  J. 
Law  (3  Har.)  1;  Eberwine  v.  Cook, 
74  Ind.  377. 

8  Doe  d.  Hughes  v.  Derry,  9  Car.  & 
P.  494;  Mayhew  v.  Suttle,  4  El.  & 
Bl.  347;  Aldin  v.  Latimer  Clark, 
Muirhead  &  Co.  [1894]  2  Ch.  437, 
448;  Wilson  v.  Tavener  [1901]  1  Ch. 
578;  Johns  v.  McDaniel,  60  Miss. 
486;  Messerly  v.  Mercer,  45  Mo.  App. 
327;  Doyle  v.  Gibbs,  6  Lans.  (N.  Y.) 
180;  Jackson  v.  Sample,  1  Johns. 
Cas.  (N.  Y.)  231.  In  Lowe  v.  Adams 
[1901]  2  Ch.  598,  it  was  held  that 
to  terminate  a  right  of  shooting  over 
land,  an  "incorporeal  hereditament," 
held  under  a  yearly  rent,  a  six 
months'  notice  was  not  necessary, 
but  merely  a  reasonable  notice. 

9  Cobb  V.  Stokes,  8  East,  358;  Mes- 
senger V.  Armstrong,  1  Term  R.  53; 
Canning  v.  Fibush„77  Cal.  196,  19 
Pac.  376;  Hihn  v.  Mangenberg,  89 
Cal.  268,  26  Pac.  968;  McKissick  v. 
Ashby,  98  Cal.  422,  33  Pac.  729;  Wal- 
ker V.  Ellis,  12  111.  470;  Secor  v. 
Pestana,  37  111.  525;  Pierson  v.  Tur- 
ner, 2  Ind.  123;  Hamit  v.  Lawrence, 
9  Ky.  (2  A.  K.  Marsh.)  366;  Stock- 
well  V.  Marks,   17   Me.   455,   35  Am. 


Dec.  266;  Preble  v.  Hay,  32  Me.  456; 
Dorrell  v.  Johnson,  34  Mass.  (17 
Pick.)  266;  Engels  v.  Mitchell,  30 
Minn.  122,  14  N.  W.  510;  Waldo  v. 
Jacobs,  152  Mich.  425,  15  Det.  Leg.  N. 
316,  116  N.  W.  371;  Young  v.  Smith, 
28  Mo.  65,  75  Am.  Dec.  109;  Mastin 
V.  Metzinger,  99  Mo.  App.  613,  74  S. 
W.  431;  Williams  v.  Mershon,  57  N. 
J.  Law,  242,  30  Atl.  619;  Allen  v. 
Jaquish,  21  Wend.  (N.  Y.)  628;  Cox 
V.  Sammis,  57  App.  Div.  173,  68  N. 
Y.  Supp.  203;  Den  d.  Stedman  v. 
Mcintosh,  26  N.  C.  (4  Ired.  Law) 
291,  42  Am.  Dec.  122;  McGregor  v. 
Rawle,  57  Pa.  184;  Ashhurst  v.  East- 
ern Pennsylvania  Phonograph  Co., 
166  Pa.  357,  31  Atl.  116;  Logan  v. 
Herron,  8  Serg.  &  R.  (Pa.)  459. 

In  Weller  v.  Carnew,  29  Out.  400, 
it  is  decided  that  an  express  stip- 
ulation for  such  a  notice,  in  the 
case  of  a  tenancy  for  years,  is  in- 
valid. But  see  Wilcox  v.  Montour 
Iron  &  Steel  Co.,  147  Pa.  540,  23  AtL 
840,  where,  on  a  construction  of  par- 
ticular language  looking  to  a  pos- 
sible renewal  from  year  to  year 
and  providing  for  a  notice  to  quit, 
the  latter  provision  was  held  to  ap- 
ply to  the  original  term  as  well  as 
to  the  renewal  tenancy. 

10  Arizona  Rev.  St.  1901.  §  2694; 
Colorado,  Mills'  Ann.  St.  §  1976;  Dis- 


1420                                            NOTICE  TO  QUIT.                                          §  196 

a  notice  in  order  to  terminate  the  tenancy  at  tlie  end  of  the  term, 
even  though  the  duration  thereof  is  clearly  defined  by  the  lease.^* 
If  a  tenancy  for  years  is  to  terminate  upon  some  contingency, 
that  is,  if  there  is  a  "special"  or  "conditional"  limitation  to  J  tat 
effect,  the  tenancy  terminates  upon  the  happening  of  such  con- 
tingency, without  any  notice  by  one  party  to  the  other.12     Such, 

triet  of  ColumUa  Code  1901,  §  1218;  exceeding  in  any  case  three  months 
nUnois,  Kurd's  Rev.  St.  1905,  c.  80,  before  the  end  of  the  term).  See, 
§  12  (see  Knecht  v.  Mitchell,  67  111.  also,  Wolfer  v.  Hurst,  47  Or.  156, 
86);  Indiana,  Burns'  Ann.  St.  1901,  80  Pac.  419,  82  Pac.  20,  construing 
§  7094;  lowaCo6.Q  1897,  §  2991;  Kan-  the  Oregon  statute  in  this  respact. 
SOS  Gen,  St.  1905,  §  4059;  Kentucky  In  Reccius  v.  Columbia  Finance  & 
St.  1903,  §  2293;  Mississippi  Code  Trust  Co.,  27  Ky.  Law  Rep.  880,  86 
1906,  §  2882;  Missouri  Rev.  St.  1899,  S.  W.  1113,  a  tenant  from  month  to 
§  4111;  Oklahoma  Rev.  St.  1903,  §  month  is  regarded  as  a  tenant  tor 
3328;  South  Carolina  Cvf.  Code  1902,  a  month  for  the  purpose  of  the  ap- 
§  2415;  Virginia  Code  1904,  §  2785;  plication  of  such  a  statute. 
Washington  Ball.  Ann.  Codes  &  St.  In  Pennsylvania  the  courts  some- 
§  4570;  West  Virginia  Code  1906,  §  times  speak  as  if  a  notice  to  quit 
3398,  were  necessary  to  terminate  a  ten- 
11  Delaware  Rev.  Code  1893,  p.  866,  ancy  for  years,  the  notice  to  be 
§  4  (If  notice  to  quit  not  given  by  given  three  months  before  the  ex- 
landlord  or  tenant,  in  case  of  a  piration  of  the  tenancy.  But  the 
term  of  one  or  more  years,  three  notice  thus  referred  to  is  that  re- 
months  before  the  end  of  the  term,  quired  by  Act  Dec.  14,  1863,  as  a 
lease  renewed  for  another  year.  At  condition  precedent  to  a  proceeding 
page  772,  summary  proceedings  are  to  recover  possession,  which  the 
authorized  against  the  tenant  pro-  statute  requires  to  be  given  three 
vided  the  landlord  gives  three  months  before  the  end  of  the  terra, 
months'  notice  before  end  of  term).  See  Rich  v.  Keyser,  54  Pa.  86,  93 
See  Thomas  v.  Black,  8  Houst.  Am.  Dec.  675;  Snyder  v.  Carfrey,  54 
(Del.)    507,   18  Atl.  771;    Bonsall  v.  Pa.  90. 

McKay,   1   Houst.    (Del.)    520;    Rob-  12  Scott  v.   Willis,   122    Ind.    1,22 

erts  V.  Grubb,  5  Houst.    (Del.)    461.  N.  E.  786;   Clark  v.  Rhodes,  79  Ind. 

lOinois,  Hurd's  Rev.  St.  1905,  c.  80,  342;    People   v.    Schackno,   48   Barb. 

§  6  (Tenancies  less  than  one  year).  (N.  Y.)  551;  Den  d.  Stedman  v.  Mc- 

See  Dunne  v.   Trustees   of  Schools,  Intosh,  26  N.  C.  (4  Ired.  Law)   291, 

S9  111.  578.    Missouri  Rev.  St.  1899,  42  Am.  Dec.  122;  Sprague  v.  Quinn, 

§  4110   (One  month's  notice  in  case  108  Mass.  553;   Doe  d.  Waithman  v. 

of  tenancy  for  le^  than  one  year);  Miles,   1    Starkie,   181;    Doe   d.   Col- 

Rhode  Island  Gen.  Laws  1896,  c.  269,  naghi  v.  Bluck,  8  Car.  &  P.  464.     See 

§  4   (Tenants  by  parol  for  any  term  ante,   §  12  d. 

less   than   a  year  shall  quit  at  the  In  Babcock  v.  Albee,  54  Mass.  (13 

end  of  the  term  upon  notice  in  writ-  Mete.)    273,   it  was   decided  that  if 

iBg    from    the    landlord    given    at  a    landlord,    after    terminating    the 

least  half  the  period  of  the  term,  not  tenancy  by  notice,   told   the  tenant 


.  ^qq  tenancy  at  will.  1421 

for  instance,  is  the  ease  when  the  tenancy  is  to  cease  upon  the  ces- 
sation of  the  use  of  the  premises  for  a  certain  purpose,!^  or  upon 
the  termination  of  the  relation  of  employer  and  employee  between 
the  parties.! 4  But  occasionally,  as  before  stated,!^  there  is  an 
option  in  the  landlord  or  tenant  to  terminate  the  tenancy,  at 
any  time,  or  at  a  time  or  on  a  contingency  named,  and  any  re- 
quirement of  the  lease  as  to  a  notice  of  the  exercise  of  such  an 
option  must  be  strictly  complied  with.ie  Even  when  ther3  is  no 
provision  as  to  notice  of  the  exercise  of  the  option,  the  tena,nt  has 
been  held  to  be  entitled  to  a  reasonable  notice  thereof  before 
being  compelled  to  vacate.^'' 

b.  Tenancy  at  will.  By  the  English  cases  it  has  always  been 
assumed  that  a  tenancy  at  will  may  be  terminated  immediately 
by  notice,  without  allowing  the  tenant  any  period  of  time  between 
the  receipt  of  the  notice  and  the  time  for  him  to  quit  thereunder,is 
though  his  right  to  re-enter  for  the  purpose  of  securing  crops 
planted  by  him,  and  also  his  right  to  enter,  within  a  reasonable 
time  after  the  termination  of  the  tenancy,  in  order  to  remove  his 
goods,  have  always  been  recognized.i^  Iq  this  country,  likewise, 
Tt  has  not  infrequently  been  decided  that  the  landlord  may  de- 
mand immediate  possession.20     Iq  gome  jurisdictions,  however, 

that    lie    miglit    remain    "a    while       is  See  ante,  §  12  e,  f. 

longer,"    till   he   could    sell    off   his       is  See  ante,  §§  12  e   (4),  12  f.  at 

goods,  this  made  the  tenant  one  at    notes   265-270. 

sufferance,  or  it  constituted  a  demise       17  Shaw  v.  Hoffman,  25  Mich.  162. 

for  a  term,  understood  by  the  parties    And  see  Goodright  v.  Richardson,  3 

to  be  fixed  by  the  purnose  to  be  ac-    Term  R.  462. 

complished,  in  neither  of  which  is  See  Doe  d.  Tomes  v.  Chamber- 
cases  was  the  tenant  entitled  to  a   laine,  5  Mees.  &  W.  14;  Doe  d.  Hull 

new    notice.     It    may    be    remarked    v.  Wood,  14  Mees.  &  W.  6S2;  Doe  d. 

that  he  could  not  have  been  a  ten-    Price  v.  Price,  9  Bing.  356. 

ant  at  sufferance,  since  his  contin-        19  See   post,    §    251   c    (3),   255   a, 

ued   possession   was  by   permission,    note  21. 

As  to  regarding  him  as  a  tenant  for        20  Blatchley  v.   Coles,   6  Cola   82; 

a  term,  see  ante,  §  12  c  (2)   (b).  Herrell  v.  Sizeland,  81  111.  457;  Cross 

13  Horner  v.  Leeds,  25  N.  J.  Law  v.  Campbell,  89  111.  App.  489;  Peters 
(1  Dutch.)  106;  Creech  v.  Crockett,  v.  Balke,  170  111.  304,  48  N.  E.  1012; 
59  Mass.   (5  Cush.)  133.  Sullivan  v.  Enders,  33  Ky.  (3  Dana) 

i4Hackett  v.  Marmet  Co.,  3  C.  C.  66;  Grant  v.  White,  42  Mo.  285; 
A.  76,  52  Fed.  268,  17  L.  R.  A.  804;  Moore  v.  Boyd.  24  Me.  242;  Withers 
Marmet  Co.  v.  Archibald,  37  W.  Va.  v.  Larrabee,  48  Me.  570;  Johnson  v. 
77S  17  S.  E.  299;  Grosvenor  v.  Johnson,  13  R.  I.  467;  Den  d.  Ham- 
Henry,  27  Iowa,  269.  phries   v.   Humphries,   25   N.   C.    (3 


1422 


NOTICE  TO  QUIT. 


§196 


the  courts  have  regarded  this  rule  as  bearing  with  undue  harsh- 
ness on  the  tenant,  and  have  required  some  notice  before  the  land- 
lord can  demand  posseosion.21  Occasionally  it  has  been  said  that 
six  months '  notice  is  necessary,  on  the  theory,  which  is  now  gener- 
ally repudiated,22  that  all  tenancies  at  will  are  to  be  regarded  as 
tenancies  from  year  to  year.^s  In  other  cases  the  length  of  notice 
necessary  is  regarded  as  dependent  on  the  particular  circum- 
stances of  the  case,  rendering  a  greater  or  less  time  requisite  for 
the  proper  removal  of  the  tenant's  crops  and  other  property.^-' 
"In  a  number  of  states  there  are  statutory  provisions  expressly 


Ired.   Law)    362;    Den   d.   Howell   v. 
Howell,  29  N.  C.   (7  Ired.  Law)   496. 

21  Cody  V.  Quarterman,  12  Ga.  386; 
Sloat  V.  Rountree,  87  Ga.  470,  13  S. 
E.  637  (semble).  In  Rich  v.  Bol- 
ton, 46  Vt.  84,  14  Am.  Rep.  615,  it 
is  said  (per  Redfield,  J.)  that, 
though  six  months'  notice  is  not 
necessary  as  in  the  case  of  tenan- 
cies from  year  to  year,  a  reasonable 
notice  is  necessary,  and,  "where 
emblements  are  ■  in  question,  such 
notice  as  shall  protect  the  tenant  in 
his    rights." 

In  Massachusetts  the  decisions 
previous  to  the  passage  of  the  stat- 
ute as  to  the  necessity  of  notice 
were  not  in  entire  harmony.  Ellis 
V.  Paige,  18  Mass.  (1  Pick.)  43; 
Coffin  V.  Lunt,  19  Mass.  (2  Pick.)  71, 
and  note;  Howard  v.  Merriam,  59 
Mass.  (5  Cush.)  563.  And  see 
Leavitt  v.  Leavitt,  47  N.  H.  329. 
And  this  was  likewise  the  case  in 
New  York.  See  Ja.ckEon  v.  Bryan,  1 
Johns.  322;  Phillips  v.  Covert,  7 
Johns.  1;  Jackson  v.  Laughhead,  2 
Johns.  75;  Jackson  v.  Green,  4  Johns. 
186;  Jackson  v.  Miller,  7  Cov^.  747; 
Lamed  v.  Hudson,  60  N.  Y.  102.  In 
the  latter  state  the  courts  seem,  be- 
fore the  statute,  to  have  tended  to 
regard  a  tenancy  at  will  as  a  ten- 
ancy from  year  to  year,  for  the  pur- 
pose of  notice  at  least. 


22  See  ante,  §  14  b  (2)   (c). 

23  Clark  v.  Smith,  25  Pa.  137;  Den 
d.  McEowen  v.  Drake,  14  N.  J.  Law 
(2  J.  S.  Green)  523;  Squires  v.  Huff, 
10  Ky.  (3  A.  K.  Marsh.)  17.  The 
opinion  of  Putnam,  J.,  in  Ellis  v. 
Paige,  18  Mass.  (2  Pick.)  71,  note,  11 
Am.  Dec.  146,  cites  several  authori- 
ties, from  the  Year  Books  down,  to 
the  effect  that  a  six  months'  notice 
is  necessary,  but,  as  shown  by  Red- 
field,  J.,  in  Rich  v.  Bolton,  46  Vt.  84, 

14  Am.  Rep.  615,  these  appear  to 
have  all  been  cases  of  a  holding 
from  year  to  year,  or  to  have  in- 
volved merely  the  question  of  em- 
blements. 

24  In  Amsden  v.  Floyd,  60  Vt.  386, 

15  Atl.  332,  it  is  said:  "A  tenant 
has  the  right  to  a  reasonable  time 
to  vacate  the  premises,  depending 
upon  the  circumstances  of  the  case. 
Under  a  lease  of  agricultural  lands, 
he  may  be  entitled  to  emblements, 
and  can  remain  long  enough  after 
the  lease  determines  to  gather  the 
crops  that  he  has  sown,  which  may 
be  for  the  greater  part  of  the  year. 
In  a  lease  of  buildings,  the  tenant, 
when  the  lease  ends,  may  have  noth- 
ing in  them,  and  so  would  need  no 
time  to  vacate  them;  in  a  case  like 
the  one  at  bar,  where  the  premises 
are  used  for  storing  heavy  machin- 
ery, the  lessee  should  have  reason-. 


196 


TENANCY  AT  WILL. 


1423 


requiring  a  notice  of  a  certain  length  in  order  to  terminate  a  ten- 
ancy at  will,  the  period  named  being  ordinarily  either  one  or 
three  months,^^  with  a  provision,  occasionally,  that  if  the  rent 
is  payable  at  intervals  less  than  the  period  named  for  the  notice, 
the  notice  shall  be  of  the  length  of  such  intervals.^^^  Some  of  the 
statutes  are  so  phrased  as  to  require  a  notice  to  be  given  only  by 
the  landlord,  thus  by  implication  authorizing  the  tenant  to  ter- 
minate the  tenancy  immediately,  without  formal  notice,  as  at  com- 
mon law,^'''  while  others  expressly  provide  for  notice  by  either 
party  desiring  to  terminate  the  tenancy .^s 

In  two  states  the  statutes  provides  that  the  tenant  shall  quit 


able  time  to  procure  other  accomoda- 
tions, and  remove  his  property.  A 
case  might  arise  where  it  would  be 
necessary  to  erect  buildings;  store- 
houses might  be  plenty  in  the  vicin- 
ity, or,  there  might  be  none.  No 
rule  can  be  laid  down  to  apply  to 
all  cases."  See,  to  the  same  effect, 
Wheeler  v.  Wheeler,  77  Vt.  177,  59 
Atl.   842. 

2^  California  Civ.  Code,  §  789  (One 
month) ;  Colorado,  Mills'  Code,  § 
1976  (Three  days) ;  Delaware  Rev. 
Code  1893,  p.  773  (Three  months)  ; 
District  of  Cohimbia  Code  1901,  § 
1220  (Thirty  Days);  Georgia  Code 
1895,  §  3133  (Two  months'  notice  by 
landlord;  one  month's  notice  by  ten- 
ant);  Idaho  Civ.  Code  1901,  §  2373 
(One  month);  Indiana,  Burns'  Ann. 
St.  1901,  §  7088  (One  month);  Iowa 
Code  1897,  §  2991  (Thirty  days); 
Kansas  Gen.  St.  1905,  §  4054  (Thirty 
days) ;  Ilaine  Rev.  St.  1903,  c.  93, 
§  2  (Thirty  days);  Massachusetts 
Rev.  Liws  1902,  c.  129,  §  12  (Three 
months);  Michigan  Comp.  Laws 
1897,  §  9257  (Three  months) ;  ilfm- 
nesota  Rev.  Laws  1905,  §  3332 
(Three  months) ;  Missouri  Rev.  St. 
1899,  §  4110  (One  month)  ;  Montana 
Rev.  Codes  1907,  §  4502  (One 
month) ;    New  Jersey  Acts   1903,   c. 


13,  §  3  (Three  months) ;  Neio  York 
Real  Prop.  Law,  §  198  (Thirty 
days) ;  North  Dakota  Rev.  Code 
1905,  §  4782  (One  month);  Okla- 
homa Rev.  St.  1903,  §  3323  (One 
month) ;  Oregon,  Bell.  &  C.  Codes,  § 
5390  (Three  months);  South  Dakota 
Rev.  Civ.  Code,  §  2G2  (One  month); 
Wisc07isin  Rev.  St.  1898,  §  2183  (One 
month). 

26  See  statutes,  above  cited,  of 
Iowa,  Kansas,  Massachusetts,  Michi- 
gan,  Minnesota,  Oregon,  Wisconsin. 

27  See  statutes,  above  cited,  of 
California,  Indiana,  Missouri,  Mon- 
tana, New  York,  North  Dakota,  Okla- 
homa, South  Dakota. 

28  See  statutes,  above  cited,  of 
Delaware,  District  of  Columbia, 
Iowa,  Kansas,  Maine,  Massachusetts, 
Michigan,  Minnesota,  Oregon,  Wis- 
consin. Also  Whitney  v.  Gordon,  55 
Mass.  (1  Cush.)  266;  Walker  v.  Fur- 
bush,  65  Mass.  (11  Cush.)  366,  59 
Am.  Dec.  148;  Batchelder  v.  Batchel- 
der,  84  Mass.  (2  Allen)  105;  Thomas 
V.  San  ford  Steamship  Co.,  71  Mo. 
548;  Huntingdon  v.  Parkhurst,  87 
Mich.  38.  49  N.  W.  597,  13  L.  R.  A. 
83,  24  Am.  St.  Rep.  146;  Sanford  v. 
Johnson,  24  Minn.  172,  applying  such 
a  provision. 


1424  NOTICE  TO  QUIT.  §  196 

on  notice  in  writing  from  the  landlord  upon  "the  day  named 
therein,  "29  and  such  a  statute  has  been  construed  as  requiring 
not  a  "reasonable"  notice,  but  a  notice  of  a  day  merely.^^  In 
these  states  it  is  also  provided  that  the  tenant  may  terminate  the 
tenancy  "by  notice  in  writing  in  the  same  manner  as  the  lessor, "^i 
in  effect  requiring  such  a  notice  from  the  tenant  in  case  he  de- 
sires to  terminate.^2 

In  construing  the  statutes  requiring  a  notice  of  a  certain  length 
to  terminate  a  tenancy  at  will,  the  courts  of  two  or  three  states 
have  decided  that  they  require  a  notice  to  terminate  the  tenancy 
in  those  eases  only  in  which,  at  common  law,  the  owner  or  the 
tenant,  desiring  to  terminate  the  tenancy,  could  do  so  by  merely 
indicating  his  will  to  that  effect,  either  by  an  express  notice  or 
by  doing  acts  upon  the  land  of  such  a  character  as  to  show  his 
will,  and  that  a  tenancy  at  will  may,  as  before  the  statute,  be  ter- 
minated by  acts  which  effect  such  termination,  not  because  they 
indicate  a  wish  to  terminate  the  tenancy,  but  because  they  are 
regarded  as  inconsistent  with  the  continued  existence  of  such 
a  tenancy .23  In  other  words,  the  statute  "is  limited  to  the  case 
of  determining  the  will,  and  terminating  the  tenancy,  by  the  act 
of  the  party  desirous  of  doing  so,"  while  it  "leaves  all  other 
cases  of  determining  the  estate  by  act  of  law,  as  they  stood  be- 
fore. "^^  Accordingly  it  has  been  decided  that,  in  spite  of  such 
a  statute,  the  tenancy  is  terminated,  without  previous  notice,  by 
the  act  of  the  landlord  in  conveying  or  leasing  the  land,^^  and  this 
though  the  conveyance  or  lease  is  merely  colorable,  made  for  the 
purpose   of   avoiding  the   statute.^e     Likewise,   it   may   be   ter- 

29  New  Hampshire  Pub.   St.  1901,  apply  to  a  tenancy  at  will  arising 

c.  246,  §  2;  Rhode  Island  Gen.  Laws  under  the  provisions  of  the  statute 

1896    c.  269,  §  1.  of  frauds  of  that  state.     See  Esty  v. 

sopayton   v.    Sherburne,   15   R.  I.  Baker,  50  Me.  325,  79  Am.  Dec.  616; 

213    2  Atl.  300.  Seavey  V.  Cloudman,  90  Me.  536,  38 

31  Neto   Hampshire   Pub.   St.  1901,  Atl.    540,   commenting  on   Young  v. 
c.  246,  §  6;  Rhode  Island  Gen.  Laws  Young,  36  Me.  133. 

1896  c.  269,  §  5.  st  Howard  v.  Merriam,  59  Mass.  (5 

32  Chapman  v.   Tiffany,   70   N.   H.    Cush.)    563. 

249    47  Atl.  603.  ss  Howard  v.  Merriam,  59  Mass.  (5 

33  Howard  v.  Merriam,  59  Mass.  (5    Cush.)   563;   Seavey  v.  Cloudman,  90 
Cush.)   563;   Seavey  v.  Cloudman,  90    Me.  536,  38  Atl.  540. 

Me.  536,  38  Atl.  540;  Leavitt  v.  Lea-  so  Curtis  v.  Galvin,  83  Mass.  (1 
vitt,  47  N.  H.  329.  In  Maine  it  Allen)  215;  Dunshee  v.  Grundy,  81 
seems  that   a    different   rule   would    Mass.   (15  Gray)   314. 


§  196 


TENANCY  AT  WILL. 


1425 


m mated,  without  notice,  by  the  act  of  the  tenant  in  transferring 
his  interest,37  or  in  asserting  a  title  adverse  to  that  of  the  land- 
lord's And  the  death  of  either  party  will,  under  this  view,  no 
doubt  terminate  the  tenancy  immediately,  as  at  common  law.'^ 
But  the  tenancy  is  not  terminated  by  the  act  of  the  tenant  in 
relinquishing  possession  without  the  statutory  notice.'*^  It  has  oc- 
casionally been  stated,  without  reference  being  made  to  the 
statutory  requirement  of  notice,  that  the  burning  of  the  building 
on  the  premises  would  effect  a  termination  of  the  tenancy.^i 
The  statutory  requirement  of  notice  does  not  apply,  it  has  been 
held,  if  it  is  expressly  stipulated  that  the  tenancy  shall  terminate 
upon  a  certain  contingency,  subjecting  it  to  a  "special  limita- 
tion. "^2 


37  Cooper  V.  Adams,  60  Mass.  (6 
Gush.)  87;  King  v.  Lawson,  98  Mass. 
309. 

38  Applet-Oil  V.  Ames,  150  Mass.  34, 
22  N.  E.  69,  5  L.  R.  A.  206.  And  see 
Simpson  v.  Applegate,  75  Cal.  342, 
17  Pac.  237,  7  Am.  St.  Rep.  177; 
Amick  V.  Brubaker,  101  Mo.  473, 
14  S.  W.  627. 

39  See  Seavey  v.  Cloudman,  90  Me. 
536,   38   Atl.   540. 

40  Taylor  v.  Tuson,  172  Mass.  145, 
51  N.  E.  462;  Batchelder  v.  Batchel- 
der,  84  Mass.  (2  Allen)   105. 

41  In  O'Brien  v.  Cavanaugh,  61 
Mich.  368,  28  N.  W.  127,  1  Am.  St. 
Rep.  589.  it  is  said,  without  discus- 
sion, that  "the  tenancy  ceased  when 
the  property  was  destroyed  and  the 
tenant  ousted."  There,  however, 
the  contest  was  not  between  the 
owner  and  the  tenant.  In  Gould  v. 
Thompson,  45  Mass.  (4  Mete.)  224, 
a  purchaser  took  possession,  and 
afterwards,  the  building  having 
been  burned,  he  vacated  the  prem- 
ises, refused  to  accept  a  conveyance, 
and  sued  to  recover  payments  made 
by  him,  and  it  was  held  that  a  ten- 
ancy at  will  was  created  by  his  per- 


missive possession  and  that  this  was 
terminated,  the  facts  constituting 
"decisive  evidence  of  the  determ- 
ination of  his  will  at  the  time  of  the 
fire,  and  notice  thereof  to  the  own- 
er." 

42Hollis  V.  Pool,  44  Ky.  (3  Mete.) 
350;  Corby  v.  McSpadden,  63  Mo. 
App.  648;  McGee  v.  Gibson,  40  Ky. 
(1  B.  Mon.)  105  (semble).  As 
where  the  letting  was  to  endure  so 
long  as  the  tenant  kept  a  barber 
shop  on  the  premises  (Creech  v. 
Crockett,  59  Mass.  [5  Cush.]  133) 
or  kept  a  good  school  (Ashley  v. 
Warner,  77  Mass.  [11  Gray]  43). 
In  the  latter  case  there  was  a  letting 
by  two  tenants  in  common,  and  the 
restriction  above  recited  was  im- 
posed by  only  one  of  them.  See, 
also,  ante,  §  13  b   (5). 

A  provision,  in  the  case  of  a  lease 
at  will,  that  rent  shall  be  payable 
monthly  in  advance,  does  not  make 
the  tenancy  subject  to  a  special  lim- 
itation, terminating  the  tenancy  on 
nonpayment  of  rent  in  advance. 
Elliott  V.  Stone,  66  Mass.  (12  Cush.) 
174;  Sprague  v.  Quinn,  108  Mass. 
555. 


L.  and  Ten.  90. 


1426  NOTICE  TO  QUIT.  |  196 

Tlie  requirement  of  notice  may  be  waived,^^  as  when  the  par- 
ties expressly  agree  that  one  or  the  other,  or  both,  may  terminate 
the  tenancy  without  any  notice,^'*  or  there  may  be  an  express 
stipulation  for  a  notice  of  a  length  greater  or  less  than  that  named 
in  the  statute.-*^  And,  in  spite  of  the  statute,  the  parties  may 
terminate  the  tenancy  by  agreement  between  themselves  at  any 
time,  accompanied  by  a  relinquishment  and  acceptance  of  pos- 
session,46  this  being  in  technical  effect  a  surrender. 

In  one  state  the  courts  have  refused  to  construe  a  statute,  re- 
quiring notice  to  terminate  the  tenancy,  as  applying  only  to  a 
termination  by  direct  act  of  the  party  and  not  to  a  termination 
"by  act  of  the  law,"  and  have  decided  that  a  transfer  by  the 
owner  will  not  terminate  the  tenancy  without  the  statutory  no- 
tice.^^  In  favor  of  this  view  is  the  fact  that  the  landlord  is  thereby 
prevented  from  terminating  the  tenancy  without  notice  by  a 
merely  colorable  transfer. 

The  fact  that  a  tenant,  in  a  suit  against  him  by  the  la^ndlord 
to  recover  possession,  asserts  that  he  had  a  term  of  years  which 
has  not  yet  expired,  has  been  held  not  to  preclude  him  from  also 

43  See  post,  §  197.  In  Betz  v.  Max-  tenant  may  terminate  the  lease  at 
well,  48  Kan.  142,  29  Pac.  147,  it  any  time"  does  not  dispense  with 
was  decided  that  the  recovery  by  notice.  Paget  v.  Electrical  Engin- 
the  landlord  of  a  judgment  for  the  eering  Co.,  82  Minn.  244,  84  N.  W. 
rent  accruing  for  one  rent  period  (a  SOO.  And  see  Batch  elder  v.  Batch- 
month)  after  knowledge  of  the  ten-  elder,  84  Mass.  (2  Allen)  105. 
ant's  relinquishment  of  possession  45  May  v.  Rice,  108  Mass.  150,  11 
and  after  commencement  of  the  ac-  Am.  Rep.  328;  B.  Roth  Tool  Co.  v. 
tion  for  rent,  together  with  the  col-  Champ  Spring  Co.,  93  Mo.  App.  530, 
lection  of  such  judgment,  involved  67  S.  W.  967;  Den  d.  Humphries  v. 
a  waiver  of  the  statutory  require-  Humphries,  25  N.  C.  (3  Ired.  Law) 
ment   of   a   thirty    days'    notice.     In  362    (semble). 

this  case,  however,  the  tenancy  was  46  Forbes   v.    Smiley,    56  Me.    174; 

apparently    a    tenancy    from    month  Cooper  v.  Adams,  60  Mass.  (6  Cush.) 

to  month,  rather  than  a  tenancy  at  87;   Farson  v.  Goodale,  90  Mass.   (8 

will.  Allen)    202. 

44  Lane  v.  Ruhl,  94  Mich.  474,  54  47  German  State  Bank  v.  Herron, 
N.  W.  175  (semble)  ;  Sullivan  v.  Ill  Iowa,  25,  82  N.  W.  430.  This 
Enders,  33  Ky.  (3  Dana)  66.  So  case  applies  in  terms  to  a  termina- 
■wiiere  it  was  agreed  that  the  ten-  tion  by  transfer  by  the  landlord, 
ant  might  leave  "at  pleasure  and  but  by  implication  it  applies  to  pre- 
at  a  moment's  notice."  Davis  v.  vent  a  termination  of  the  tenancy 
Murphy,  126  Mass.  143.     But  it  has  in  any  way  without  notice. 

been  held  that  %  prwTlsion  that  "the 


§  198  PERIODIC  TENANCIES.  1427 

asserting  that,  if  he  is  merely  a  tenant  at  will  as  claimed  by  the 
landlord,  he  is  entitled  to  a  notice  to  quit.^^ 

c.  Periodic  tenancies.  The  English  rule,  that  a  notice  of  half 
a  year  is  necessary  in  order  to  terminate  a  tenancy  from  year  to 
year,  has  ordinarily  been  adopted  in  this  country,  in  the  absence 
of  a  statutory  provision  o.n  the  subject.'*^  In  a  number  of  the 
states  the  length  of  the  notice  is  fixed  by  statutory  enactment, 
it  varying  from  one  to  six  months. ^^    And  in  perhaps  two  states 

48  Simons  v.  Detroit  Twist  Drill  quired,  and  whether  a  notice  is 
Co.,  136  Mich.  592,  99  N.  W.  862.  reasonable  is  for  the  jury.     Jones  v. 

49  Doe  d.  Flower  v.  Darby,  1  Term  Spartanburg  Herald  Co.,  44  S.  C.  526, 
R.   159;    Wilkinson  v.   Calvert,   3  C.  22  S.  E.  731. 

P.  Div.  360;   Hunt  v.  Morton,  18  111.  ^o  Colorado,    Mills'    Code,    §    1976 

75;  Morehead  v.  Watkyns,  44  Ky.  (5  (Three      months);    Illinois,    Kurd's 

B.  Mon.)    229;    Den  d.  McEowen  v.  Rev.  St.  c.  80.  §  5  (Sixty  days.     See 

Drake,  14  N.  J.  Law  (2  J.  S.  Green)  Streit  v.  Fay,  230  111.   319,  82  N.  E. 

523;     Hall    v.    Myers,    43    Md.    446;  648,  120  Am.  St.  Rep.  304) ;  7«(Ztana, 

Pugsley  v.  Aiken,  11  N.  Y.  (1  Kern.)  Burns'  Ann.  St.  1901,  §  7090   (Three 

494;  Den  d.  Jones  V.  Willis,  53  N.  C.  months);    Kansas    Gen.    St.    1905,    § 

(8  Jones  Law)  430;  Barlow  v.  Wain-  4055  (Thirty  days) ;  Michigan  Comp. 

Wright,  22  Vt.   88,  52  Am.  Dec.  79;  Laws  1897,  §  9257    (One  year,  expir- 

Critchfield  v.  Remaley,  21  Neb.  178,  ing  at  any  time) ;   Mississippi  Code 

31  N.  W.  687;   Brown  v.  Kayser,  60  1906,    §    2882    (Two    months);    Mis- 

Wis.  1,  18  N.  W.  523.  souri   Rev.    St.    1899,    §   4109    (Sixty 

In  England  the  rule  is  that  if  the  days) ;   Neiv  Jersey  Acts  1903,  c.  13, 

tenancy  is  one  that  can  be  ended  on  §  3  (Three  months) ;  North  Carolina 

one  of  the  regular  feast  or  quarter  Revisal  1905,  §   1984    (One  month); 

days     (Christmas,    Lady    day.    Mid-  Oklahoma    Rev.    St.    1903,    §    3324; 

summer    day    and    Michaelmas),    a  2?7iO(?e  JsJan(Z  Gen.  Laws  1896,  c.  269, 

notice   is   sufficient  if  given  on  the  §  3   (Three  months) ;   West  Virginia 

preceding  feast  day,  though  the  in-  Code  1906,  §  3398   (Three  months); 

terval  be  less  than  half  a  year,  this  Virginia   Code    1904,   §   2785    (Three 

being    regarded    as    a    "customary"  months    if   premises   within   city  or 

half    year.     See    Roe    d.    Durant    v.  town,    and    six    months    if   without. 

Doe,  6  Bing.  574;  Doe  d.  Bedford  v.  See  Baltimore  Dental  Ass'n  v.  Ful- 

Kightley,  7  Term  R.  63;   Howard  v.  ler,  101  Va.  627,  44  S.  E.  771). 

Wemsley,    6    Esp.    53;    Doe    d.    Mat-  in  Minnesota  the  statutory  provi- 

thewson  v.  Wrightman,  4  Esp.  5;  Doe  sion    (Rev.  Laws  1905,  §  3332)   that 

d.  Harrop  v.  Green,  Esp.  198;  Morg-  estates   at   will   may   be   determined 

an  V.  Davles,  3  C.  P.  Div.  260.  by    either    party   by    three   months' 

In    South   Carolina,   where   a   ten-  notice   in  writing  for  that  purpose, 

ancy   "looks  to  the  end  of  the   cal-  given   to  the  other  party,  and  that 

endar  year  for  its  termination"  (see  when   the  rent  reserved   is   payable 

post,  note  154),  a  reasonable  notice  at  periods  of  less  than  three  months 

before   the   end    of   the   year   is   re-  the    time    of    such    notice    shall    be 


1428 


NOTICE  TO  QUIT. 


^196 


there  are  decisions  to  the  effect  that  no  notice  to  terminate  the 
tenancy  at  the  end  of  any  year  is  necessary  to  enable  the  land- 
lord to  maintain  summary  proceedings  against  the  tenant  to  re- 
cover possession.^! 


sufficient  if  it  be  equal  to  the  in- 
terval between  the  times  of  payment, 
is  regarded  as  applj'ing  to  estates 
from  year  to  year  and  other  periodic 
tenancies.  See  Hunter  v.  Frost,  47 
Minn.  1,  49  N.  W.  327;  Grace  v. 
Michaud,  50  Minn.  139,  52  N.  W.  390. 
So  in  Oregon  a  tenancy  from  year 
to  year  is  apparently  regarded  as 
within  the  statutory  requirement  as 
to  notice  to  terminate  tenancies  at 
will.  Roseblat  v.  Perkins,  18  Or. 
156,  22  Pac.  598,  6  L.  R.  A.  257.  But 
a  different  construction  was  put  on 
the  Wisconsin  statute.  Brown  v. 
Kayser,  60  Wis.  1,  18  N.  W.  523. 

In  Washington  the  forcible  detain- 
er statute  making  guilty  of  unlaw- 
ful detainer  a  tenant  for  an  indefi- 
nite time,  with  monthly  or  other 
periodic  rent  reserved,  who  contin- 
ues in  possession  after  the  end  of 
such  period,  if  the  landlord  served 
notice  on  him  twenty  days  before 
the  end  of  such  period,  would  seem, 
according  to  the  construction  placed 
upon  the  statute  in  the  case  of  a 
tenancy  from  month  to  month  (see 
post,  note  54),  to  require  only  twen- 
ty days'  notice  to  terminate  a  ten- 
ancy from  year  to  year. 

In  Pennsylvania  the  three  months' 
notice  previous  to  the  end  of  the 
year,  necessary  to  support  a  pro- 
ceeding to  recover  possession  (post, 
§  274  a  [3]),  appears  to  be  regarded 
as  also  sufficient  to  terminate  the 
tenancy.  See  Dumn  v.  Rothermel, 
112  Pa.  272,  3  Atl.  800. 

ei  In  Connecticut  it  was  held  that 
the  English  requirement  of  half  a 
year's   notice   is   superseded  by   the 


local  statute  giving  a  landlord,  "in 
every  case  of  holding  over  a  right, 
and  the  remedy,  to  regain  pcssossion 
in  thirty  days,"  the  view  being,  ap- 
parently, that  a  tenant  from  year  to 
year,  remaining  in  possession  after 
the  end  of  one  or  more  years,  holds 
over  within  the  statute.  Larkin  v. 
Avery,  23  Conn.  304.  The  present 
statute  in  that  state  as  to  summary 
proceedings  provides  for  only  ten 
days'  notice,  and,  applying  the  prin- 
ciple of  the  above  decision,  no  fur- 
ther notice  is  necessary,  presum- 
ably, to  terminate  a  tenancy  from 
year  to  year.  In  other  jurisdictions 
the  courts  have  not  thus  regarded 
the  summary  proceeding  statute  as 
intended  to  change  the  length  of 
notice  necessary  to  terminate  a  peri- 
odic tenancy. 

In  New  York  there  is  no  express 
statutory  provision  as  to  notice  in 
the  case  of  a  tenancy  from  year  to 
year  and  it  has  been  decided  that 
the  landlord  may  remove  the  tenant 
by  summary  proceedings,  without 
previous  notice,  at  the  end  of  any 
year.  Nichols  v.  Williams,  8  Cow. 
(N.  Y.)  13;  Park  v.  Castle,  19  How. 
Pr.  (N.  Y.)  29.  The  latter  case  says 
that  the  rule  may  be  different  when 
such  a  tenancy  is  created  by  a  writ- 
ten lease.  In  Prouty  v.  Prouty,  5 
How.  Pr.  (N.  Y.)  81,  it  is  decided 
thai  such  a  tenancy  is  a  tenancy  at 
will  within  the  statute  requiring  one 
month's  notice.  In  Pugsley  v.  Aik- 
in,  11  N.  Y.  (1  Kern.)  494",  it  is  said, 
without  any  qualification,  that  six 
incnths'  notice  is  necessary,  and  it 
is  so  stated  in  1  McAdam,  Landl.  & 


§  196 


PERIODIC  TENANCIES. 


1429 


In  the  case  of  a  tenancy  from  quarter  to  quarter,  month  to 
month,  or  week  to  week,  a  notice  of  a  quarter,  a  month,  or  a 
week,  respectively,  is  ordinarily  regarded  as  necessary  to  ter- 
minate it.^2  In  a  number  of  states  the  length  of  the  notice  neces- 
sary in  such  cases  is  prescribed  by  statute,  the  statute  occa- 
sionally referring  in  terms  to  a  tenancy  from  quarter  to  quarter,^^ 
month  to  month,^^  or  week  to  week,^^  and  sometimes  being  so 


Ten.  (3d  Ed.)  605.  In  Peer  v. 
O'Leary,  8  Misc.  350,  28  N.  Y.  Supp. 
687,  there  is  a  dictum  that  one 
month's  notice  is  necessary.  In 
Adams  v.  Cohoes,  127  N.  Y.  175,  28 
N.  E.  25,  the  court  apparently  re- 
gards the  tenancy  there  in  question 
as  a  tenancy  "from  year  to  year," 
and  yet  holds  that  the  tenancy 
"terminates  at  a  fixed  period,"  and 
that  therefore  no  notice  is  neces- 
sary. 

In  Arizona,  by  statute  (Rev.  St. 
1901,  §  2694),  a  tenancy  from  year  to 
year  terminates  at  the  end  of  each 
year  unless   expressly   extended. 

52  Steffens  v.  Earl,  40  N.  J.  Law, 
128,  29  Am.  Rep.  214;  Baker  v. 
Kenny,  69  N.  J.  Law,  180,  54  Atl.  526; 
Anderson  v.  Prindle,  23  Wend.  (N. 
Y.)  616;  People  v.  Darling,  47  N.  Y. 
666;  McDevitt  v.  Lambert,  80  Ala. 
536,  2  So.  438;  Stewart  v.  Murrell, 
65  Ark.  471,  47  S.  W.  130,  67  Am. 
St.  Rep.  942;  Gunn  v.  Sinclair,  52 
Mo.  327;  Prickett  v.  Ritter,  16  111. 
96;  Creighton  v.  Sanders,  89  111.  543; 
Hollis  V.  Burns,  100  Pa.  206,  45  Am. 
Rep.  379;  Currier  v.  Perley,  24  N. 
H.  219. 

In  England  it  has  been  decided 
that  a  month's  notice  is  necessary 
in  the  case  of  a  tenancy  from 
month  to  month.  Doe  d.  Parry  v. 
Hazell,  1  Esp.  94;  Beamish  v.  Cox, 
16  L.  R.  Ir.  270.  458.  In  the  case  of 
a  weekly  tenancy,  while  there  are 
dicta  to  the  effect  that  a  week's  no- 


tice is  necessary,  it  seems  doubtful 
whether  a  less  notice,  provided  it  be 
reasonable,  may  not  be  sufficient. 
See  Jones  v.  Mills,  10  C.  B.  (N.  S.) 
788;  Harvey  v.  Copeland,  30  L.  R. 
Ir.  412;  Bowen  v.  Anderson  [1894] 
1  Q.  B.  164. 

53  District  of  ColumMa  Code, 
§  1219  (Thirty  days);  Mississippi 
Code,  1906,  §  2882  (One  month,  in 
case  of  holding  by  half  year  or  quar- 
ter year). 

Mills'  Code  Colo.  §  1976,  providing 
that  a  six  months'  tenancy  may  be 
terminated  by  a  notice  of  one  month, 
presumably  means  a  tenancy  from 
six  months  to  six  months,  since  the 
same  section  expressly  provides  that 
no  notice  shall  be  required  when  the 
term  "is  by  contract  to  end  at  a 
time  certain." 

^i  Arizona  Rev.  St.  1901,  §  2694 
(Ten  days);  Colorado,  Mills'  Ann. 
St.  1S91,  §  1976  (Ten  days); 
Delatoare  Rev.  Code  1893,  p.  866  (One 
month) ;  District  of  ColumMa  Code 
1901.  §  1219  (Thirty  days);  Illinois, 
Kurd's  Rev.  St.  1905,  c.  80,  §  6 
(Thirty  days,  semble) ;  Mississippi 
Code  1906,  §  2882  (One  week.  See 
Wilson  V.  Wood,  84  Miss.  728,  36  So. 
G09);  Missouri  Rev.  St.  1899,  §  4110 
(One  month) ;  Nevada  Comp.  Laws 
1900,  §  3827  (Ten  days);  New 
Jersey  Acts  1903,  c.  13,  §  3  (One 
month);  North  Carolina  Revisal 
1905,  §  1984  (Seven  dnys)  ;  Virginia 
Code    1904,    §    2785    (Thirty    days). 


1430                                           NOTICE  TO  QUIT.                                          §  19^ 

framed  as  to  apply  to  any  periodic  tenancy,  or  to  any  such  ten- 
See,  as  to  the  Kentucky  statute,  Rec-  strued  as  applying  to  a  tenancy  from 
cius  V.  Columbia  Finance  &  Trust  month  to  month  (Simpson  v.  Mas- 
Co.,  27  Ky.  Lav/  Rep.  8S0,  86  S.  W.  son,  11  Misc.  351,  32  N.  Y.  Supp.  136; 
1113;  Pulliam  v.  Sells,  30  Ky.  Law  Miller  v.  Lowe,  14  Ann.  Cas.  343,  86 
Rep.  456,  99  S.  W.  289.  N.  Y.  Supp.  16).     Judge  McAdam  ap- 

There  are  occasional  decisions  and  pears  to  accept  this  construction, 
dicta  in  New  York  to  the  effect  that  See  1  McAdam,  Landl.  &  Ten.  (3d 
no  notice  is  necessary  to  terminate  Ed.)  105,  109.  On  the  other  hand, 
a  tenancy  from  month  to  month,  it  has  been  held  that  the  statute  was 
See  opinion  of  McAdam,  J.,  in  Gil-  passed  for  the  benefit  of  tenants 
foyle  V.  Cahill,  18  Misc.  68,  41  N.  Y.  only,  and  did  not  dispense  with  the 
Supp.  29;  Decker  v.  Sexton,  19  Misc.  necessity  of  one  month's  notice 
59,  43  N.  Y.  Supp.  167;  People  v.  from  the  landlord  (Hungerford  v. 
Darling,  47  N.  Y.  666;  Geiger  v.  Wagoner,  5  App.  Div.  590,  39  N.  Y. 
Braun,  6  Daly  (N.  Y.)  506.  And  see  Supp.  369),  the  effect  of  which  view 
cases  cited  ante,  §  14  c  (1),  note  507.  would  appear  to  be  to  confine  the 
Compare  the  cases  cited  ante,  §  14  application  of  the  statute  to  tenan- 
c  (1),  note  506,  to  the  effect  that  cies  for  a  term  of  one  month.  The 
one  month's  notice  is  necessary.  In  statute,  it  has  been  held,  does  not 
Hoffman  v.  Van  Allen,  3  Misc.  99,  22  require  notice  to  be  served  on  a  sub- 
N.  Y.  Supp.  369,  it  is  said  that  "as-  tenant  as  well  as  a  tenant  (Decker 
suming  that  notice  be  not  requisite  v.  Sexton,  19  Misc.  59,  43  N.  Y.  Supp. 
in  simple  tenancies  from  month  to  167),  and  does  not  apply  when  the 
month"  it  is  necessary  when  it  is  a  tenant  himself  terminates  the  ten- 
letting  from  month  to  month  "so  ancy  (Hoske  v.  Gentzlinger,  87  Hun, 
long  as  the  rent  is  paid,"  since  these  3,  33  N  Y.  Supp.  747).  The  notice 
words  "make  the  term  indefinite."  must  warn  the  tenant  that  if  he 
No  explanation  is  given  of  the  dis-  fails  to  remove  at  the  time  named 
tinction  asserted.  summary  proceedings  will  be  begun 

In  New  York,  by  Laws  1882,  c.  303,  against  him.     Folz  v.  Shalow,  16  N. 

amended  by  Lav/s  1889,  c.  357,  it  is  Y.  Supp.  942. 

provided  that  no  "monthly  tenant"  In  Washington  the  statute  (2  Ball, 
shall  be  removed  in  New  York  or  Ann.  Codes,  §  5527,  subd.  2)  mak- 
Brooklyn  unless  "within  five  days  ing  guilty  of  unlawful  detainer  a 
before  the  expiration  of  the  term"  tenant  for  an  indefinite  time  with 
the  landlord  serves  notice  on  the  monthly  or  other  periodic  rent  re- 
tenant.  The  intention  of  the  framer  served,  who  continues  in  possession 
of  this  law,  Judge  McAdam,  appears  after  the  end  of  any  such  month  or 
to  have  been  to  protect  the  tenant  period,  in  cases  where  the  landlord, 
in  case  of  a  lease  for  one  month  (see  more  than  twenty  days  prior  to  the 
1  McAdam.  Landl.  &  Ten.  [3d  Ed.]  end  of  such  month  or  period,  shall 
108),  and  the  use  of  the  word  have  served  a  notice  requiring  him 
"term"  would  tend  to  show  such  to  leave  at  the  end  of  the  month,  is 
an  intention,  but  the  expression  regarded  as  making  a  twenty  days' 
"monthly    tenancy"    has    been    con-  notice  sufficient  in  order  to  terminate 


.  ^gg  PERIODIC    TENANCIES.  1431 

ancy  measured  by  periods  less  than  a  year.^s 

The  obligation  to  give  notice  is,  at  common  law,  reciprocal,  the 
tenant  being  bound  to  give  it,  as  well  as  the  landlord,  if  he  de- 
ft tenancy  from  month  to  month,  case  the  notice  shall  be  held  to 
Yesler  Estate  v.  Orth,  24  Wash.  483,  terminate  the  tenancy  at  the  end 
64  Pac  723-  Teater  v.  King,  35  of  a  period  equal  in  time  to  that 
Wash  138  76  Pac.  688.  The  word  in  which  the  rent  is  made  payable, 
"more"  as' used  in  said  statute  does  See  Huntington  v.  Parkhurst  87 
not  add  any  additional  time  to  the  Mich.  38,  49  N.  W.  597  13  L.  R.  A. 
twenty  days,  but  merely  designates  83,  24  Am.  St.  Rep.  146);  Minnesota 
the  complete  expiration  of  that  num-  Rev.  Laws  1905,  §  3332  (When  rent 
her  of  days.  McGinnis  v.  Genss,  25  reserved  at  periods  of  less  than 
wash.  490,  65  Pac.  755.  three    months,    the    time    of    notice 

^^  Delaware  Rev.  Code  1893,  P.  shall  be  equal  to  the  interval  be- 
866  (One  week);  Mississivpi  Code  tween  the  times  of  payment  See 
1906  §§  2882,  2544  (One  week);  Grace  v.  Michaud,  50  Mmn.  139,  5i 
2Jortn  Carolina  Revisal  1905,  §  1984  N.  W.  390);  Mississipvi  Code  1906, 
(Two  days)  §  2882   (One  month's  notice  shall  be 

56  Indiana,  Burns'   Ann.    St.   1901,    given  where  the  holding  is  by  the 
§   7090    (In  all  tenancies  which,  by   half    year    or   quarter    year);    l^ew 
agreement  of  the  parties,  express  or    Hampshire  Pub.  St.  1901,  c.  246,  §  3 
implied,  are,  from  one  period  to  an-    (If   the    rent    is   payable   more   f re- 
other    of   less    than   three    months'    quently  than  once  in  three  months, 
duration    a  notice   equal  to   the  in-    thirty  days'  notice  shall  be  sufficient, 
terval  between  such  periods  shall  be    and   three   months'   notice  shall    be 
suff-cient);    Kansas    Gen.    St.    1905,    sufficient  in  all  cases) ;  I^et.  /er«ey 
§  4054   (Thirty  days'  notice  "before    2  Gen.  St.  p.  1921,  §  29  (In  all  cases 
either  party  can  terminate  tenancy    where  any  tenant  entitled  to  notice 
from  one  period  to  another  of  three    three  months  shall  be  sufficient) ;    2 
months  or  less.     But  where  rent  is    Gen.    St.    p.   1924,    §    37    (Where   no 
reserved  payable  at  intervals  of  less    term  is  agreed  upon,  and  the   rent 
than  thirty  days,  the  length  of  notice    is  payable  monthly,   so  long  as  the 
need  not  be  greater  than  such  inter-    tenant  pays  the  rent  agreed  it  shall 
val")-  OfcZaT^oma  Rev.  St.  1903,  §  3323   be  unlawful  for  the  landlord  to  dis- 
(Same  as  Kansas);  Michigan  Comp.    possess  the   tenant   before    the   first 
Law.    1897     §    9257    (When   rent    is    day    of    April    succeeding   the_  corn- 
payable  at  periods  of  less  than  three    mencement  of  such  letting,  without 
months,  the  time  of  notice  is   suffi-    giving    the    tenant    three     months 
cient    if    equal    to    the    interval    be-    notice   to    quit);    Washington    B^U. 
tween    times    of    payment,    and    it,  Ann.    Codes    &    St.    §    4569    (When 
shall   not   be   void   because   it   men-    premises    rented    for    an    indefinite 
tions  a   day  for  the  termination  of    time  with  monthly  or  other  periodic 
the    tenancy    not    corresponding    to    rent  reserved,  such  tenancy  shall  be 
the  conclusion  or  commencement  of    terminated     by     written     notice    of 
any  such  period;    but  in  any   such    thirty  days  or  more). 


1432  NOTICE  TO  QUIT.  §  196 

sires  to  terminate  the  tenancy.^'''  The  statutes  above  referred 
to  likewise  orditnarily  require  notice  to  be  given  by  the  tenant 
as  well  as  the  landlord.  Where,  however,  a  statute  provided 
only  for  notice  to  the  tenant  from  the  landlord,  it  was  held  that 
the  landlord  had  no  right  to  a  notice  from  the  tenant,  it  being 
considered  that  the  common-law  requirement  of  notice  to  the  land- 
lord was  entirely  superseded  by  the  statutory  provision  as  to 
notice.^s  Likewise,  in  one  state  it  has  been  decided,  without  any 
statutory  enactment  bearing  on  the  subject,  that  no  notice  is 
necessary  on  the  part  of  the  tenant  to  terminate  the  tenancy.^^ 

The  common-law  rule,  in  regard  to  the  length  of  notice  neces- 
sary to  terminate  a  periodic  tenancy,  may  be  superseded  by  aJi 
express  agreement  in  this  regard,^*^  and  a  statutory  provision 
on  the  subject  would  no  doubt  likewise  yield  to  any  contract  be- 
tween the  parties.^i 

d.  Tenancy  at  sufferance.  A  tenant  at  sufferance  would  seem, 
by  the  very  nature  of  the  case,  not  entitled  to  notice  to  quit, 
since  otherwise  the  effect  would  be  to  enable  a  tenant  for  a  fixed 
term,  by  wrongfully  holding  over,  to  acquire  a  right  to  a  notice 
to  which  otherwise  he  is  not  entitled,  and  that  such  is  the  law  has 
been  frequently  recognized.^2     Jq  some  states,  however,  the  legis- 

57  A.  G.  Rhodes  Furniture  Co.  v.  Taunt.  555;  Dixon  v.  Bradford  & 
Weeden,  108  Ala.  252,  9  So.  318;  Dist.  R.  Servants'  Coal  Supply  Soc. 
Pugsley  V.  Aikin,  11  N.  Y.  (1  Kern.)     [1904]    1  K.  B.  444. 

494;   Tanton  v.  Van  Alstine,  24  111.  ei  See  post,  §  197. 

App.  405;  Donahue  v.  Chicago  Bank  62  Dewson  v.  St.  Clair,  14  U.  C.  Q. 

Note  Co.,  37  111.  App.  552;  Roberson  B.   97;    Burns  v.  McAdam,  24  U.  C. 

V.    Simons,    109    Ga.    360,    34    S.    B.  Q.    B.    449;    McLeren    v.   Benton,   73 

604;  Hall  v.  Wadsworth,  28  Vt.  410;  Cal.  329,  14  Pac.  879,  2  Am.  St.  Rep. 

Hanks  v.  Workmaster   (N.  J.  Law)  814;  Lee  Chuck  v.  Quan  Wo  Chong, 

66  Atl.  1097;   Buck  v.  Lewis,  46  Mo.  91  Cal.  196,  19  Pac.  376;   Jackson  v. 

App.  227;  Hall  v.  Myers,  43  Md.  446;  Parkhurst,    5  Johns.    (N.    Y.)    128; 

Currier  v.  Perley,  24  N.  H.  219,  228;  Willis  v.  Harrell,  118  Ga.  906,  45  S. 

Morehead  v.  Watkyns,  44  Ky.   (5  B.  E.  794;    Reed  v.  Reed,   48  Me.  388; 

Mon.)    229.  Evans  v.   Reed,   71  Mass.    (5  Gray) 

58  Nelson  v.  Ware,  57  Kan.  670,  47  308,  66  Am.  Dec.  368;  Hildreth  v. 
Pac.    540.  Conant,    51    Mass.    (10    Mete.)    298; 

59  Brown  v.  Brightly,  17  Phila.  Peter?  v.  Balke,  170  111.  304,  48  N. 
(Pa.)  252.  See  Milling  v.  Becker,  E.  1012;  Wamsganz  v.  Wolff,  86  Mo. 
96  Pa.  182;  Hollis  v.  Burns,  100  Pa.  App.  205;  Guthman  v.  Vallery,  51 
206,  45  Am.  Rep.  379.  Neb.  824,  71  N.  W.  734,  66  Am.  St. 

60  King  V.  Eversfleld  [1897]  2  Q.  Rep.  475;  Lithgow  v.  Moody,  35  Me. 
B.  475;  Doe  d.  Pitcher  v.  Donovan,  1    214    (semble);    Moore  v.  Moore,  41 


§  196 


TENANCY  AT  SUFFERANCE. 


143v 


lature  has  undertaken  to  provide  that  a  tenancy  at  sufferance 
can  be  terminated  only  after  notice  of  a  month  or  more,  placing 
it,  for  this  purpose,  in  the  same  category  as  a  tenancy  at  will,^^ 


N.  J.  Law,  515;  Moore  v.  Smith,  56 
N.  J.  Law,  446,  29  Atl.  159;  Howard 
V.  Carpenter,  22  Md.  10;  Anderson 
V.  Brewster,  44  Ohio  St.  576,  9  N.  E. 
683;  Rich  v.  Keyser,  54  Pa.  86,  93 
Am.  Dec.  675;  Blocker  v.  McClen- 
don,  6  Ind.  T.  481,  98  S.  W.  166.  It 
is  sometimes  provided  by  statute 
that  no  notice  shall  be  necessary  to 
terminate  a  tenancy  at  sufferance. 
Indiana,  Burns'  Ann.  St.  1901,  § 
7094;  Kansas  Gen.  St.  1905,  §  4059. 
No  demand  for  possession  is  nec- 
essary before  suit,  as  in  the  case  of 
a  tenancy  at  will.  Doe  d.  Roby  v. 
Maisey,  8  Barn.  &  C.  767;  Howard  v. 
Carpenter,   22   Md.   10. 

The  occasional  statements  in  the 
Massachusetts    cases    to    the    effect 
that  a   tenant   at   sufferance   is    en- 
titled to  a  notice  and  sufficient  time 
thereafter    to    remove    before    legal 
proceedings  are  begun   against  him 
to  recover  possession  apparently  all 
refer  to  cases  in  which  a  tenancy  at 
will  had  been  terminated  by  a  con- 
veyance   by    the    landlord,    and    the 
notice  referred  to  is  merely  of  the 
making    of    this     conveyance.     See 
Hooton  v.  Holt,  139  Mass.  54,  29  N. 
E.  221;  Lash  v.  Ames,  171  Mass.  487, 
50  N.    E.    996;    Pratt  v.   Farrar,    92 
Mass.     (10     Allen)     519;     Clark    v. 
Wheelock,   99   Mass.   14;    Arnold   v. 
Nash,    126    Mass.    397:     Wardell    v. 
Etter!  143  Mass.  19,  8  N.  E.  420.     See 
ante,  §  13  b  (4)    (a). 

es  Kentucky  St.  1903,  §  2326; 
Michigan  Comp.  Lavv^s  1897,  §  9257 
(Three  months) ;  Missouri  Rev.  St. 
1899,  §  4110  (One  month);  New 
York  Real  Prop.  Law,  §  ms  (Thirty 
days) ;    Oregon,   Bell.  &  C.  Codes,  § 


5390     (Three    months) ;     Wisconsin 
Rev.  St.  1898,  §  2183  (One  month). 

District  of  Columbia  Code  1901,  § 
1221,  provides  that  a  tenancy  by  suf- 
ferance may  be  terminated   at   any 
time  by  a  notice  in  writing  from  the 
landlord  to  the  tenant  to  quit,  or  by 
such  notice  from  the  tenant  to  the 
landlord  of  his  intention  to  quit  on 
the  thirtieth   day    after   the  day   of 
the    service    of    notice.     In    Rhode 
Island,   likewise,   the    statute    (Gen. 
Laws  1896,  c.  269,  §  1)  provides  that 
a  tenant  at  sufferance  shall  quit  up- 
on notice  in  writing  from  the  lessor 
or  owner  at  the  day  named  therein, 
and  the  effect  of  this  provision,   in 
connection  with  one  that  "the  time 
agreed  on  in  a  definite  letting  shall 
be    the     time    of    the    termination 
thereof  for  all  purposes"  (section  6), 
has  been  stated  to  be  "to  secure  to 
every  person  holding  over  after  the 
expiration    of    an    estate    which    he 
has  rightfully  eome  into  possession 
of  by  act  of  party,  unless  he  be  a 
lessee   for   a   definite  term,   a  clear 
opportunity  to  leave  it  without  suit 
for  his  ejectment   by  requiring  the 
owner  or  lessor  to  give  him  notice 
to   quit  as  prescribed  before  bring- 
ing   any    such    suit    against    him." 
Johnson  v.  Donaldson,  17  R.  I.  107, 
20  Atl.  242.    It  was  in  this  case  de- 
cided that,  after  sale  under  a  mort- 
gage, the  mortgagor's  grantee  was  a 
tenant     at     sufferance     entitled     to 
notice   to   quit  before   suit   to   eject 
him. 

In  Massachusetts,  at  one  time,  a 
statute  existed  requiring  a  notice  to 
terminate  a  tenancy  at  sufferance, 
but  this  was  repealed.     See  Kinsley 


1434 


NOTICE  TO  QUIT. 


§  196 


and  these  enactments  have  given  the  courts  considerable  trouble. 
For  the  purpose  of  avoiding  a  construction  of  these  statutes  which 
would  give  a  tenant  Avrongfully  holding  over  the  right  to  such  a 
notice  before  he  could  be  turned  out,  the  courts  have  occasionally 
adopted  the  statement,  made  by  Coke  and  Blackstone,  that  a 
tenancy  at  sufferance  arises  from  the  laches  of  the  la.ndlord,  and 
have  declared  that,  for  the  purpose  of  the  statute  at  least,  one 
holding  over  is  not  a  tenant  at  sufferance  unless  and  until  the 
landlord  has  been  guilty  of  laches  in  failing  to  take  measures  to 
oust  him,  and  they  go  so  far  as  to  say  that  the  circumstances 
must  be  such  as  to  evince  an  assent  by  the  owner  to  the  tenant's 
continued  occupancy.'^'* 

However  sound  and  necessary  these  decisions  may  have  been 
as  constructions  of  the  particular  statutes,  they  are,  if  considered 
as  statements  of  the  qualities  of  a  common-law  tenancy  at  suffer- 
ance, entirely  unsupported  by  authority.  The  statement  that  the 
tenancy  arises  from  the  laches  of  the  landlord  originated  in  a 


V.  Ames,  43  Mass.  (2  Mete.)  29.  And 
the  provision  of  the  New  Jersey  stat- 
ute (Acts  1898,  c.  228,  §  109)  re- 
quiring a  notice  of  three  months  to 
terminate  a  tenancy  by  sufferance 
before  a  judgment  for  dispossession 
shall  be  ordered  (see  Guvenator  v. 
Kenin,  66  N.  J.  Law,  114,  48  Atl. 
1023)  was,  it  spems,  repealed  by 
Acts  1901,  c.  39,  and  Acts  1903,  c.  13, 
§§  1.  2,  providing  that  "any  lessee  or 
tenant  at  will  or  at  sufferance"  may 
be  removed  by  the  district  court 
when  any  such  person  shall  hold 
over  and  continue  in  possession 
"after  the  expiration  of  his  or  her 
term,  and  after  demand  made  and 
notice  in  writing  given  for  deliver- 
ing the  possession  thereof." 

G4  Rowan  V.  Lytle,  11  Wend.  (N. 
Y.)  616;  Moore  v.  Morrow.  28  Cal. 
551;  Meno  v.  Hoeffel,  46  Wis.  282.  1 
N.  W.  31.  See  Eldred  v.  Sherman, 
81  Wis.  182,  51  N.  W.  441. 

There  is  a  full  discussion  of  the 
construction  of  such  a  statute  in  Al- 


len V.  Carpenter,  15  Mich.  25,  in 
which  the  court  was  divided  as  to 
its  meaning.  In  a  later  case  (Ben- 
fey  V.  Congdon,  40  Mich.  283)  the 
court  says  that  it  does  not  know 
what  the  statute  means,  but  that  it 
does  not  give  a  tenant  holding  over 
a  right  to  notice  to  quit.  And  see 
Kunzie  v.  Wixom,  39  Mich.  384,  33 
Am.  Rep.  403.  To  the  same  effect, 
that  such  a  statute  does  not  require 
a  notice  in  order  to  oust  a  tenant 
holding  over  his  term,  see  Irvine  v. 
Scott,  85  Ky.  260,  3  S.  W.  163.  In 
Jjivingston  v.  Tanner,  14  N.  Y.  (4 
Kern.)  64,  it  was  held  that  such  a 
statute,  requiring  a  montb's  notice 
to  terminate  a  tenancy  at  sufferance, 
did  not  apply  where  a  purchaser  of 
a  life  estate  remained  in  possession 
after  the  death  of  the  cestui  que  vie. 
since  another  statute  provided  that 
any  person  having  a  life  estate  who 
held  over  without  permission  should 
be  adjudged  a  trespasser. 


§  197  WAIVER  OR  MODIFICATION  OF  REQUIREMENT.  1435 

dictum  in  a  case  of  the  time  of  Coke,  where  it  was  introduced  for 
a  particular  purpose  f^  and  the  view  that  the  tenancy  exists  only 
in  case  of  an  implied  assent  by  the  landlord  to  the  holding  ignores 
the  primary  and  peculiar  feature  of  such  a  tenancy,  distinguishing 
it  from  every  other  tenancy,  that  it  is  wiihout  the  landlord's  as- 
sent. 

§  197.    Waiver  or  modification  of  requirement. 

The  notice  to  quit  which  might  otherwise  be  necessary  may  be 
dispensed  with  by  express  stipulation.*^^  Likewise,  the  parties 
may  provide  for  a  notice  of  a  length  different  from  that  which  is 
ordinarily  necessary,  either  greater  or  less.^^  But,  it  seems,  such 
provision  must  not  be  repugnant  to  the  nature  of  the  tenancy, 
as,  for  instance,  by  requiring,  in  the  case  of  a  tenancy  from  year 
to  year,  a  notice  of  over  a  year.^^s  And  a  provision  precluding 
the  landlord,  in  the  case  of  such  a  tenancy,  from  terminating  it 
by  notice,  would,  it  seems,  be  void,  or  it  would  have  the  effect  of 
making  the  tenancy  one  for  life.^^ 

It  has  in  England  been  decided  that  a  notice,  which  is  not  of 
the  length  required  by  law  or  named  in  the  lease,  cannot  be  ren-. 
dered  effective  to  terminate  the  tenaxicy  by  the  recipient's  ac- 
quiescence therein,  upon  its  receipt,  or  even  by  his  express  verbal 
assent  thereto,  since  this  would,  in  effect,  involve  a  termination 
of  the  tenancy  by  an  agreement  constituting  in  law  a  surrender, 
and  a  surrender  must  be  in  writing,  when  not  by  operation  of 

65  Sir  Moil  Finch's  Case,  2  Leon.  D.  C.  (2  Mackey)  450;   May  v.  Rice, 

134.     See  ante,  §  15  a,  note  550.  108  Mass.  150,  11  Am.  Rep.  328;    B. 

60  Betliell  V.  Blencowe,  3  Man.  &  Roth  Tool  Co.  v.  Champ  Spring  Co.. 
G.  119;  In  re  Threlfall,  16  Ch.  Div.  93  Mo.  App.  530,  67  S.  W.  967. 
274;  King  v.  Eversfield  [1897]  2  Q.  es  See  Tooker  v.  Smith,  1  Hurl.  & 
B.  475;  Sullivan  v.  Bnders,  33  Ky.  N.  732,  and  Weller  v.  Carnew,  29 
(3  Dana)  66;  Davis  v.  Murphy,  126  Ont.  400,  ante,  note  9.  But  the  par- 
Mass.  143;  Wilke  v.  Campbell,  5  Pa.  ties  may  agree  that  a  periodic  ten- 
Super.  Ct.  618;  Connors  v.  Clark,  79  ancy  shall  be  terminated  by  a  notice 
Conn.  100,  63  Atl.  951.  It  is  so  ex-  expiring  at  any  particular  time 
pressly  provided  by  D.  C.  Code  1901,  named.  See  post,  note  166. 
§  1236.  09  Doe    d.    Warner    v.    Browne,    8 

G7  Doe    d.    Pitcher    v.    Donovan,    1  East,     165;     Cheshire     Lines     Com- 

Taunt.     555;     Crowley    v.    Vitty,    7  rnittee  v.  Lewis  &  Co.,  50  Law  J.  Q. 

Exch.  319;  Doe  d.  Peacock  v.  Raffan,  b.  121. 
6  Esp.  4;  Waggaman  v.  Bartlett,  13 


1436 


NOTICE  TO  QUIT. 


§  197 


law.'"'  There  is  one  ease  in  this  country  which  appears  to  sup- 
port this  view,'^!  but  there  are  at  least  dicta  to  the  effect  that  one 
party  may  waive  the  requirement  of  notice  from  the  other  party 
to  terminate  the  tenancy J^  Occasionally  the  requirement  of  no- 
tice is  said  to  be  waived  when  the  landlord  accepts  possession 
of  the  premises  from  the  tenant,'^^  ]yyj^  jn  g^eh  a  case  there  is  in 
reality  a  surrender  by  operation  of  law  which  terminates  the 
tonancyJ^ 

The  requirement  of  notice  to  the  tenant  is  dispensed  with  in 


70  Johnstone  v.  Hudlestone,  4  Barn. 
&  C.  922;  Bessell  v.  Landsberg,  7 
Q.  B.  638;  Doe  d.  Huddleston  v. 
Johnston,  McClel.  &  Y.  141.  ., 

71  Lewis  V.  Scanlan,  3  Pen.  (Del.) 
238,  50  Atl.  58.  In  Smith  v.  Smith, 
62  Mo.  App.  596,  it  is  decided  that 
a  verbal  agreement  dispensing  with 
the  written  notice  required  by  stat- 
ute  is   nugatory. 

72  Davis  V.  Murphy,  126  Mass.  143; 
Whitney  v.  Gordon,  55  Mass.  (1 
Gush.)  266;  Graham  v.  Anderson,  3 
Har.  (Del.)  364;  Farson  v.  Goodale, 
90  Mass.  (8  Allen)  202.  Compare 
Sander  v.  Holstein  Commission  Co., 
118  Mo.  App.  29,  121  Mo.  App.  293, 
99  S.  W.  12,  where  it  was  held  that 
the  landlord's  acts  did  not  show  a 
waiver  of  written  notice  from  the 
tenant. 

In  Eimermann  v.  Nathrin,  116  Wis. 
124,  92  N.  W.  550,  upon  the  land- 
lord's refusal  to  make  repairs,  the 
ten.'int  said  that  he  would  notiTy 
the  landlord  if  he  decided  to  remain, 
and  did  not  notify  him,  and  the 
landlord  advertised  the  premises  as 
for  rent  one  month  before  the  end 
of  the  year  and  continued  advertis- 
ing till  the  end  of  the  year,  and  re- 
fused in  terms  to  allow  the  tenant 
to  remain,  and  it  was  held  that  the 
roqulrement  of  thirty  days'  notice 
was    waived    by    the    landlord.      In 


Woodbury  v.  Butler,  67  N.  H.  545, 
38  Atl.  379,  it  was  held  that  a  ten- 
ant from  year  to  year  who,  at  the 
public  sale  of  the  premises,  assented 
to  the  auctioneer's  statement  that  he 
would  give  up  possession  within 
four  weeks,  was  estopped,  as  against 
a  purchaser  at  the  sale,  to  claim  a 
three  months'  notice. 

The  tenant  may  lose  all  right  to 
the  statutory  notice  to  terminate  the 
tenancy  at  the  end  of  a  period  by 
his  failure  to  pay  rent,  thus  render- 
ing his  tenancy  subject  to  a  forfeit- 
ure on  that  account.  See  Snyder  v. 
Porter,  69  Neb.  431,  95  N.  W.  1009. 

73  Williams  v.  Jones,  64  Ky.  (1 
Bush)  621;  Whitney  v.  Gordon,  55 
Mass.  (1  Gush.)  266;  Vegely  v.  Rob- 
inson, 20  Mo.  App.  199;  Elgutter  v. 
Drishaus,  44  Neb.  378,  63  N.  W.  19; 
Torrans  v.  Stricklin,  52  N.  C.  (7 
Jones  Law)  50;  Merritt  v.  Merritt, 
3  N.  Y.  St.  Rep.  484.  See  Hetfield  v. 
Lawton,  108  App.  Div.  113,  95  N.  Y. 
Supp.  451.  The  act  of  the  landlord 
in  entering  with  a  person  sent  by 
the  tenant,  who  has  abandoned  pos- 
session, to  remove  articles  left  by 
the  tenant,  or  in  entering  to  turn  off 
the  water  after  such  abandonment, 
is  not  a  waiver  of  the  requirement  of 
notice.  Finch  v.  Moore,  50  Minn. 
116,  52  N.  W.  35;4. 

71  See  ante,  §  190  c. 


§197 


WAIVSR  OR  MODIFICATION  OF   REQUIREMENT. 


1437 


case  he  disclaims  holding  under  the  landlord,'^^  since  one  who 
denies  that  he  is  tenant  is  not  entitled  to  claim  the  privileges 
of  a  tenant. 

In  two  or  three  states  the  courts  have,  in  particular  cases,  re- 
garded the  action  of  the  tenant  in  quitting  the  premises  as  suffi- 
cient notification  of  his  desire  to  terminate  the  tenancy  at  the  end 
of  the  current  period,  and  as  dispensing  with  the  necessity  of  any 
formal  notice.'^^  In  jurisdictions  where  the  statute  requires,  ex- 
pressly or  by  implication,  that  the  notice  be  in  writing,''"^  it  does 
not  seem  that  such  mere  relinquishment  of  possession  could 
properly  be  regarded  as  a  sufficient  compliance  with  the  require- 
ment, and  even  when  there  is  no  requirement  that  the  notice  be 
in  writing,  to  regard  a  mere  act,  without  any  communication  with 
the  landlord,  as  satisfying  the  requirement  of  notice,  seems  de- 
cidedly open  to  question/^ 


75  See  ante,  §  192. 

T6  In  Adams  v.  Cohoes,  127  N.  Y. 
175,  28  N.  E.  25,  it  was  decided  that, 
assuming  that  a  notice  to  quit  was 
necessary  to  terminate  a  tenancy, 
created  by  a  tenant's  holding  over 
his  term,  at  the  end  of  a  year  of 
holding  over,  the  act  of  the  tenant 
in  leaving  the  premises  nine  months 
before  the  expiration  of  the  year, 
taking  a  lease  of  other  premises,  and 
refusing  to  pay  rent  subsequently  ac- 
cruing, was  sufncient  notice.  In 
Rorbach  v.  Crossett,  46  N.  Y.  St.  Rep. 
426,  19  N.  Y.  Supp.  450,  it  was  de- 
cided that  there  was  sufficient  notice 
in  the  case  of  a  tenancy  from  month 
to  month,  created  by  holding  over, 
if  the  tenant  tendered  the  keys, 
which  the  landlord  refused  to  ac- 
cept and  he  then  left  them  with  the 
latter,  this  clearly  showing  an  in- 
tention to  terminate  the  tenancy. 
In  Betz  V.  Maxwell,  48  Kan.  142,  29 
Pac.  147,  it  was  decided  that  where 
the  tenant  was  about  to  leave  with- 
out notice,  and  the  landlord,  know- 
ing thereof,  sued  for  and  recovered 
one   month's   rent,   the  necessity  of 


a  month's  notice  was  dispensed  with. 
In  Roberson  v.  Simons,  109  Ga, 
360,  34  S.  E.  604,  it  was  decided  that 
whon  a  tenant  from  year  to  year 
abandoned  the  premises,  leaving  in 
possession,  however,  a  subtenant, 
who  remained  for  a  year  and  a  frac- 
tion, the  original  tenant  was  liable 
for  two  years'  rent,  the  abandon- 
ment not  being  equivalent  to  notice, 
but  it  was  at  the  same  time  said 
that  it  might  be  different  if  the  sub- 
tenant were  not  left  in  possession. 
In  Landsberg  v.  Tivoli  Brew.  Co.,  132 
Mich.  651,  94  N.  W.  197,  the  action 
of  the  tenant  in  returning  the  keys 
and  relinquishing  possession  was  re- 
garded as  sufficient,  the  statute  not 
requiring  a  written  notice. 

77  See  past,  §  199,  note  77. 

7s  That  abandonment  does  not  re- 
lieve the  tenant  from  liability  for 
rent  until  he  gives  the  prescribed 
notice,  see  Eastman  v.  Vetter,  57 
Minn.  164,  58  N.  W.  989;  Chapman 
V.  Tiffany,  70  N.  H.  249,  47  At!.  603; 
Rollins  V.  Moody,  72  Me.  135;  Hall 
V.  Wadsworth,  28  Vt.  410;  Arbenz. 
V.  Exley,  Watkins  &  Co.,  57  W.  Va. 


1438  NOTICE  TO  QUIT.  §  IQS 

§  198.    By  and  to  whom  notice  to  be  given. 

Notice  upon  the  part  of  the  landlord  may  be  given  either  by 
the  original  lessor  or  by  the  person  or  persons  succeeding  him 
in  the  ownership  of  the  reversion.'^^  One  having  merely  an  equi- 
table title,  based  on  a  contract  for  the  sale  to  him  of  the  re- 
version, has  no  authority  to  give  it.^*^ 

When  a  lease  is  made  by  two  or  more  joint  tenants,  notice  by 
one,  on  behalf  of  all,  is  sufficient  to  terminate  the  tenancy  as  to 
his  own  share,8i  and,  likewise,  according  to  the  English  decisions, 
as  to  that  of  the  others,'^^  unless  the  lease  expressly  requires  the 
notice  to  be  given  by  all.^-'^  In  the  case  of  a  lease  by  tenants 
in  common,  likewise,  each  may  give  a  notice,  good  as  to  his  un- 
divided share,s4  and  presumably  in  England  the  rule,  applied 
in  the  case  of  a  lease  by  joint  tenants,  that  each  may  give  a 
notice  in  behalf  of  the  others,  would  be  applied  in  the  case  of  a 
lease  by  tenants  in  common.  In  one  case  in  this  country,  how- 
ever, it  has  been  decided  that  one  tenant  in  common  cannot  give 
a  notice  in  behalf  of  the  others,^^  and  there  is  a  dictum  in  that 
case  to  the  effect  that  one  joint  tenant  cannot  do  so.  In  case 
the  lessor  makes  a  concurrent  lease,  as  distinguished  from  a  lease 
in  reversion,  the  lessee  becomes  the  landlord  for  the  time  being,*^^ 
and  consequently  he,  and  not  the  lessor,  is  the  person  to  give 
the  notice.^'^ . 

An  authorized  agent  of  the  landlord  may  give  the  notice  on 
behalf  of  his  principal,^^  and  he  may,  it  has  been  decided,  give  it 

580,   50   S.    E.   813.     See,  also,  cases  ss  Right  v.  Cuthell,  5  East,  491. 

cited  ante,  §  190  e   (2),  and  post,  §  84  See    Cutting   v.    Derby,    2    Wm. 

200.  Bl.   1075. 

79  Liddy  v.  Kennedy,  L.  R.  5  H.  ss  Pickard  v.  Perley,  45  N.  H.  188, 
L.  134;  Swope  v.  Hopkins,  119  Ind.  86  Am.  Dec.  153.  In  Earl  Orchard 
125,  21  N.  E.  4fi2.  Co.  v.  Fava,  138  Cal.  76,  70  Pac.  1073, 

80  Reedor  v.  Sayre,  70  N.  Y.  180,  26  notice  by  one  cotenant  was  regarded 
Am.  Rep.  567.  as   sufficient,   but  there   it   appeared 

81  Doe  d.  Whayman  v.  Chaplin,  3  that  the  other  had  previously  in- 
Taunt.  120.  formed  the  tenant  that  the  one  who 

82  Doe  d.  Aslin  v.  Summersett,  1  gave  the  notice  had  charge  of  the 
Barn.  &  Adol.  135;   Doe  d.  Elliot  v.  "renting  of  the  place." 

Hulme,    2    Man.    &    R.    433;    Doe    d.  86  See  ante,  §  146  d,  at  notes  24-27. 

Kindersley  v.  Hughes.  7  Mees.  &  W.  s?  Wordsley   Brewery   Co.    v.    Hal- 

139;    Alforri    v.   Vi'^kery,   Car.   &   M.  ford,  90  Law  T.  89;  Doe  d.  Jarvis  v. 

280;  Burrows  v.  Mickelson,  14  Man.  McCarthy,  5  New  Br.  (3  Kerr)  63. 

Rep.  73Q.  ^*  Reeder  v.  Sayre,  70   N.  Y.   180, 


§  198 


BY  AND  TO  WHOM  TO  BE  GIVEN.  1439 


in  his  own  name,  if  he  has  general  control  over  the  property,^^ 
as  when  he  is  an  agent  to  let  and  also  to  receive  rents,^*'  or  is  the 
steward  of  the  corporate  owner,^^  while  if  acting  under  a  special 
authority  for  this  particular  purpose  he  must,  it  has  been  de- 
cided, give  the  notice  in  the  name  of  his  principal.^2  Jq  one  case 
it  was  decided,  without  reference  to  the  character  of  the  agent's 
authority,  that  a  notice,  signed  by  H.  "Agent  for"  the  land- 
lord, was  as  effectual  as  one  signed  in  the  landlord's  name  "by 
H.  Agent.  "93  ^  notice  purporting  to  be  signed  by  the  owner, 
"by  B.  &  K.,  her  attorneys  and  agents,"  was  held  to  be  valid, 
though  a  clerk  of  the  firm  of  B.  &  K.,  by  direction  of  a  member 
of  the  firm,  did  the  actual  writing  of  the  signature."-*  In  case  a 
notice  is  given  in  behalf  of  the  landlord  by  one  who  is  not  au- 
thorized to  do  so,  the  landlord  cannot,  it  has  been  decided,  ratify 
it,  at  least  after  the  requisite  interval  of  time  has  commenced  to 


run 


95 


The  notice  should  be  given  to  the  immediate  tenant"^  and  not 
to  a  mere  subtenant;"^  and  a  notice  to  the  tenant  is  effective  as 

2fi  Am.  Rep.  5G7;  Doe  d.  Birming-  but  was  a  demand  of  possession  as 
ham  Canal  Co.  v.  Bold,  11  Q.  B.  127.  a  preliminary  to  summary  proceed- 
No    written   authority   is   necessary,  ings. 

Felton    V.    Millard,    81    Cal.    540,    21  94  Bond  v.  Chapman,  34  Wash.  606, 

Pac.  533,  22  Pac.  750.  76  Pac.  97.     In  McClung  v.  McPher- 

sn  Jones  V.  Phipps,  L.  R.   3  Q.  B.  son,  47  Or.   73,  81  Pac.  5G7,  82  Pac. 

567.  13,    it   was    decided   that    failure   to 

90  Doe  d.  Manvers  v.  Mizem,  2  object  to  the  introduction  in  evi- 
Moody  &  R.  56.  dence  of  a  notice  signed  by  the  land- 

A  receiver  authorized  to  let  may  lord's   attorneys    admitted   their   au- 

give  notice  to  quit  in  his  own  name,  thority  to  sign  it. 

Wilkinson  v.  Colley,  5  Burrow,  2694;  os  pickard  v.  Perley,  45  N.  H.  188, 

Doe  d.  Marsack  v.  Read,  12  East,  57.  gg  j^^  pec.  153;  McCroskey  v.  Ham- 

91  Roe  d.  Dean  &  Chapter  of  ^ton,  108  Ga.  640,  34  S.  E.  Ill,  75 
Rochester  v.  Pierce,  2  Camp.  96.  ^m.    St.   Rep.    79;    Doe   d.    Mann   v. 

92  Jones  V.  Phipps,  L.  R.  3  Q.  B.  Walters,  10  Barn.  &  C.  626;  Doe  d. 
567.  Lyster    v.    Goldwin,    2    Q.    B.    143; 

93  Earl  Orchard  Co.  v.  Fava,  138  B^ahn  v.  Jersey  Citv  Forge  Co.,  38 
Cal.  76,  70  Pac.  1073.  In  Reed  v.  ^  j  ^aw,  74.  Goodtitle  v.  Wood- 
Hawley.  45  111.  40,  it  was  held  that  ^^^^^^  ^  ^^^^    ^  ^^^    ^^^^  ^^^^^^  .^ 


in  effect  overruled. 


a  "notice  to  quit"  signed  "C.  M.  H. 

(the  landlord)   by  W.   C.  R.,  an  au-  .    .     ,    , 

J.,      .     ■,              4.,,      „,„c      c„ffi/>,-or>+  96  Whether   the   original   lessee  or 

thorized      agent,        was      sufficient, 

though  it  would  have  been  better  to  tis  assignee.     Mount  Palatine  Acad- 

have  substituted  "his"  for  "an."    This  emy  v.  Kleinschnitz,  28  111.  133. 

was  not  properly  a  "notice  to  quit,"  »» Pleasant    v.    Season,    14    Bast, 


1440  NOTICE  TO  QUIT.  §  19S 

against  a  subtenant,  whether  the  sublease  be  made  before^^  or 
after  the  notice.'^^  A  person  in  actual  occupation  is,  however, 
presumed  to  be  an  assignee  of  the  leasehold  for  this  purpose 
rather  than  a  subtenant, 'until  the  contrary  is  proven.io'^  And 
it  has  been  decided  that,  if  the  tenant's  widow  continues  in  pos- 
session after  his  death,  notice  to  her  to  quit  is  effective  to  ter- 
minate the  tenancy,  in  the  absence  of  evidence  of  the  appoint- 
ment of  an  executor  or  administrator,^ °i  and  this  principle  has 
been  applied,  in  one  case,  to  the  extent  of  holding  a  notice  to 
the  widow  in  possession  sufficient  to  terminate  the  tenancy,  even 
as  against  an  administrator  subsequently  appointed.1^2  Xn  this 
last  case  the  view  is  asserted,  by  the  majority  of  the  court,  that, 
whoever  might  be  in  possession  after  the  tenant's  death,  the  land- 
lord should  be  entitled  to  terminate  the  tenancy  by  notice  to 
such  person,  without  being  compelled  to  await  the  grant  of  letters 
of  administration,  or  himself  to  have  an  administrator  appointed. 

A  notice  to  a  corporation  should  be  addressed  to  the  corpora- 
tion and  served  on  one  of  its  officers.^°^ 

Where  one  of  several  tenants  holds  over  the  term,  he  alone, 
it  has  been  decided,  is  to  be  regarded  as  a  tenant  for  the  purpose 
of  notice  to  quit  at  the  end  of  a  subsequent  year.^*'^ 

If  the  lease  specifies  that  the  notice  is  to  be  given  to  certain 
persons,  it  cannot  be  given  to  others.^ ''^ 

Notice  on  the  part  of  the  tenant  should  be  given  to  his  im- 
mediate landlord,  and  not  to  one  under  whom  his  landlord 
holds.^*^^     It  may,  however,  be  given  to  an  agent  who  has  the 

234;  Rx)e  v.  Wiggs,  2  Bos.  &  P.  (N.  v.  Street,  2  Adol.  &  E.  329.    And  see 

R.)    330.  ante,   §   153. 

98  Jackson  v.  Baker,  10  Jolins.  (N.  "i  Rees  v.  Perrot,  4  Car.  &  P.  230. 

Y.)   270;  Roe  v.  Wiggs,  2  Bos.  &  P.  102  Sweeny  v.  Sweeny,  10  Ir.  R.  C. 

(N.  R.)  330.     But  in  Waters  v.  Rob-  L.  375. 

erts,  89  N.  C.  145,  it  is  said  that  a  ^^^  Doe  d.  Carlisle  v.  Woodman,  8 

notice   to   a   sublessee   need   not   be  East,   228. 

...     ,.„ffl„;„„+  ?f  io4Tice  V.   Cowenhoven,    63   N.   J. 

by  the  sublessor,  but  is  sufficient  if  <yA    ao  ^4■^   ^^ka 

^                                             ,    .        4.1,   4.  Law,  24,  42  Atl.  1054. 

given  by   the   lessor,   implying  that  ^^^^^^^  ^    ^^^^^^^  ^^  ^    ^    ^^^ 

the  sublessee  is  entitled  to  notice,  ^gg.  Gaston  v.  Penny,  67  Law  T.  (N. 

9!)  Schilling  V.  Holmes,  23  Cal.  227,  g^    goO;    Qnartermaine  v.    Selby,    5 

83  Am.  Dec.  111.  Times  Law  R.  223. 

100  Doe   d.  Morris  v.   Williams,   6  106  Woods  v.  Hyde,  31  Law  J.  CSi. 

Barn.  &  C.  41.    Compare  Roe  d.  Blair  295. 


„  ^^^  FORM  AND  LANGUAGE.  1441 

management  and  control  of  the  property  for  the  landlord,i«' 
though  not  to  a  mere  collector  of  rents.ios  In  case  there  is  more 
than  one  tenant,  the  notice  must  purport  to  be  given  m  behalf 
of  all.io^  And  if  there  be  two  or  more  owners  of  the  reversion, 
a  notice  must,  it  seems,  be  given  to  each.ii^ 

§  199.    Form  and  language  of  notice. 

No  particular  form  of  notice  is  necessary,  in  the  absence  of  any 
specific  requirement  in  the  lease  in  this  regard,  nor  is  it  neces- 
sary that  it  be  in  writing,iii  ^hen  this  is  not  required  by  statute 
or  by  the  terms  of  the  lease.  The  statutes,  however,  quite  gener- 
ally require  the  notice  to  be  in  writing,  by  special  provision  to 
that  effect,  and  even  when  this  is  not  the  case,  they  quite^  fre- 
quently contain  provisions  in  regard  to  "service"  or  "posting" 
of  the  notice,  which  plainly  contemplate  a  written  notice,  and 
render  a  verbal  notice  of  at  least  doubtful  validity.^i^  Further- 
more, even  though  a  verbal  notice  would  be  valid,  it  is  desirable 
that  the  notice  be  in  writing,  as  being  thus  more  susceptible  of 

proof. 

When  the  statute  requires  a  written  notice,  merely  reading  a 
written  notice  to  the  person  to  be  served  has  been  regarded  as 
insufficient.113  And  it  has  been  held  that  the  notice  must  be  the 
original  notice  and  not  a  copy  thereof.!^'* 

lOTPapillon  V.  Brimton,  5  Hurl.  &  Abel,  10  111.  App.    (10  Bradw.)    626; 

N     518-     Quartermaine    v.    Selby,    5  Pratcher  v.  Smith,  104  Mich.  537,  62 

Times  Law  R.  223;  Bay  State  Bank  N.  W.  832,  29  L.  R.  A.  92;  Bird  v.  De- 

V   Kiley    80  Mass.  (14  Gray)  492  (If  fonvielle,   2   Car.   &   K.  415;    Doe  d. 

given  to  him  and   received  by  him  Macartney  v.  Crick,  5  Esp.  196;  Doe 

as  "agent")  ^-  ^ynde  v.  Merritt,  2  U.  C.   Q.  B. 

108  Pearse"v.  Boulter,  2  Fost.  &  F.  410.     And    see    cases,   to    the    effect 

that  a  mere  relinquishment  of  pos- 

109  Easton  V.Penny,  67  Law  T.(N.    session   by   the   tenant   is   sufficient, 
q  \    290  ante,  note  76. 

110  Bless  V.  Jenkins,   129  Mo.  647.        -=  See  e.  g.,  Graham  v.  Anderson. 
31  S    W.   938;   Long  v.   Bolen  Coal    3  Har.    (Del.)    364. 

Co.,  56  Mo.  App.  605.     In  these  cases.  ii^  Langan  v.  Schlief,  55  Mo.  App. 

however,  it  is  said  that  notice  must  213. 

be  served  on  both.  n*  Mathew.on  v.  Thompson   12  R 

111  Reccius  V.Columbia  Finances  I.  288.  Here  it  was  decided  that 
Trust  Co  27  Ky.  Law  Rep.  880,  86  leaving  a  "copy"  of  the  notice  with 
S  W  1113-  Kenin  v.  Guvernator  (N.  some  person  at  the  last  and  usual 
J.  Law)    48   Atl.  1023;    Eberlein  v.  place  of  abode  of  the  defendant  was 

L.  and  Ten.  91. 


1442  NOTICE  TO  QUIT.  §  199 

The  notice  should  be  addressed  to  the  person  for  whom  it  is 
intended,  but  a  failure  in  this  respect  has  been  regarded  as  im- 
material, when  the  notice  was  delivered  to  the  proper  person.^i^ 
And  a  mistake  in  the  Christian  .name  of  the  tenant  to  whom  the 
notice  was  given  was  held  to  be  cured  when  the  tenant  kept  it, 
there  being  no  other  tenant  of  that  name,ii^  or  ground  for  doubt 
as  to  the  person  for  whom  it  was  iutended.^^'''  On  the  same  prin- 
ciple it  has  been  considered  immaterial  that  a  notice  was  addressed 
to  the  husband  of  the  tenant  instead  of  to  the  tenant  herself, 
that  is,  to  "Mr.  C.  R.  C,"  and  not  to  "Mrs.  C.  R.  C'^i^ 

A  notice  to  the  tenant  need  not  state  the  person  to  whom  he 
is  to  give  possession,^^''  but  there  is  a  decision  to  the  effect  that  if 
it  undertakes  to  do  so,  and  does  it  incorrectly,  the  notice  is  in- 
valid.120 

The  notice  should  describe  the  premises  correctly,  though  a  mis- 
take in  this  respect  will  not  affect  its  validity,  if  the  recipient  was 
not  misled.^ "1  A  description  in  general  terms  is  sufficient,  as, 
for  instance,  "the  premises  which  you  now  hold  of  me,  situate 
at  A, "1^2  or  "the  house  and  land  you  rent  of  me,"i23  or  "the 
messuage  or  tenement  we  now  hold  of  you.  "^24 

A  notice  to  quit  only  a  part  of  the  demised  premises  is  in- 
valid,^ 25  though  in  the  case  of  adjoining  premises,  held  under 
separate  demises,  it  need  apply  only  to  so  much  as  is  included 

insufficient.     Presumably,     by     copy  120  Doe  d.  Brooks  v.  Fairclough,  6 

is  here  meant  a  notice  which  is  not  Maule  &  S.  40. 

signed    by    the    person    giving    the  121  Doe  d.  Armstrong  v.  Wilkinson, 

notice.     A  copy  which   is    signed  is  12  Adol.  &  E.  743;  Doe  d.  Cox  v.  Roe, 

in    effect    the    same    as    an    original  4  Esp.  185;  King  v.  Connolly,  44  Cal. 

notice.     That    is,    if    the    landlord,  236;  Farnam  v.  Hohman,  90  111.  312; 

after  writing   out   a  notice,    makes,  Congdon  v.  Brown,  7  R.  I.  19;  Whip- 

or  has  made,  a  copy  thereof,  which  pie  v.  Shewalter,  91  Ind.  114. 

he  signs,  the  service  of  such  "copy"  122  Doe  d.  Egremont  v.  Forwood,  3 

would   undoubtedly    be   good.     Com-  Q.  B.  627;  Cook  v.  Creswell,  44  Md. 

pare  the  remarks  in  Wigmore,  Evi-  581;    Epstein  v.  Greer,  78   Ind.   348. 

dence,  §   1231.  123  Doe   d.   Huntingtower   v.  Culli- 

115  Doc  d.  Matthewson  v.  Wright-  ford,  4  Dowl.  &  R.  248. 

man,  4  Esp.   5.  i--*  Doe    d.    Murrell   v.    Milward,   3 

lie  Doe  V.  Spiller,  6  Esp.  70.  Mees.  &  W.  328. 

117  Clark  V.  Keliher,  107  Mass.  406.  125  Alworth   v.    Gordon,    81   Minn. 

118  Cook  V.  Creswell,  44  Md.   581.  445,  84  N.  W.  454;    Doe  d.  Rodd  v. 

119  Doe  d.  Bailey  v.  Foster,  3  C.  B.  Archer,  14  East,  245, 
215. 


K  jgg  FORM  AND  LANGUAGE.  1443 

in  one  demise.^ 26  Even  though  the  notice  is  given  by  one  to 
whom  the  lessor  has  transferred  the  reversion  in  part,  it  has  been 
decided  to  be  invalid  if  it  in  terms  applies  only  to  such  part.i2T 
The  instrument  of  lease  may,  however,  expressly  provide  for  the 
termination  of  the  tenancy  as  to  part  only  of  the  premises  leased, 
and  in  such  case  a  notice  as  to  part  is  obviously  valid.i^s  And 
though  the  notice  in  terms  describes  part  only  of  the  premises, 
the  courts  have  shown  a  tendency  to  uphold  it  as  applying  to 
the  whole,  if  the  part  described  is  the  principal  part.129 

A  written  notice  has  been  regarded  as  valid,  though  not  signed, 
if  purporting  to  come  from  "the  owner  and  lessor"  of  the  prem- 
ises described  therein.^^o 

A  notice  to  quit  must  be  plain  and  unequivocal  in  its  terms, 
leaving  no  doubt  as  to  the  intention  of  the  party  giving  it,  so 
that  the  other  party  may  safely  act  thereon.^si  But,  as  before 
suggested,  it  is  sufficient  if  it  be  intelligible  and  not  open  to  mis- 
miderstanding.132  A  notice  by  a  tenant  that  "he  guessed  he 
would  have  to  give  up  the  house"  is  insufficient,^ ^^  and  the  same 
view  has  been  taken  of  a  notice  by  a  tenant  that  "I  intend  to 
surrender  to  you  the  tenancy  of  this  house  on  or  before"  a  date 
named,  on  the  theory  that,  since  a  surrender  cannot  be  made 
without  the  landlord's  consent,  the  notice  was  merely  of  an  in- 
tention to  enter  into  negotiations  for  a  surrender.i34 

126  Donohue  v.  Chicago  Bank  Note  131  Gardner  v.  Ingram,  61  Law  T. 
Co.,  37  111.  App.  552.  (N.    S.)    729;    Fotterall    v.   Armour, 

127  Prince  v.  Evans,  29  Law  T.  (N.    218  Pa.  73,  66  Atl.  1001. 

g  )    835  132  Aheam    v.    Bellman,    4    Exch. 

i28Liddy  v.  Kennedy,  L.  R.  5  H.  L.  Div.  201;   Bury  v.  Thompson    [1895] 

134  1   Q.   B.   231,   696:    Doe   d.   Lynde  v. 

129  Thus  a  notice  to  quit  "Town  Merritt,  2  U.  C.  Q.  B.  410;  Cook  v. 
Barton"   was   held  to  include   lands  Creswell,   44    Md.   581. 

not  strictly  so  called  but  commonly  iss  Hunter  v.  Karcher,  8  S.  D.  554, 

held     therewith.     Doe    d.    Rodd     v.  67  N.    W.    621. 

Archer,  14  East,  245.  And  where  134  Gardner  v.  Ingram,  61  Law  T, 
there  was  a  lease  of  two  rooms,  a  (N.  S.)  729.  It  appears  doubtful 
finding  by  the  jury  that  a  notice  to  whether  such  a  decision  would  bfe 
quit,  naming  one  room  only,  the  rendered  in  most  states  in  this 
principle  one,  applied  to  both,  was  country,  in  view  of  the  very  gen- 
upheld.  Alworth  v.  Gordon,  81  eral  use  of  the  term  "surrender"  in 
Minn.  445,  84  N.  W.  454.  a  sense  other  than  its  technical  one. 

130  Lund  V.  Ozanne,  13  N.  M.  293,  See  ante,  §  187. 
84  Pac.  710. 


1444  NOTICE  TO  QUIT.  §  199 

A  notice  to  quit  is  not  valid  if  it  is  in  terms  optional  or  con- 
ditional, that  is,  if  it  is  conditioned  to  take  effect  only  in  case 
the  tenant  fails  to  do  some  certain  thing  before  the  expiration  of 
the  notice,  as,  for  instance,  a  notice  to  quit  in  case  the  tenant  fails 
to  make  certain  repairs,^^^  or  to  perform  certain  stipulations 
of  the  lease,i36  and  a  notice  merely  stating  the  terms  on  which 
the  tenant  may  remain  is  insufficient  to  operate  as  a  notice  to 
quit  in  case  he  does  not  accept  such  terms.i^T  But  there  are  oc- 
casional decisions  that  a  notice  by  the  landlord,  otherwise  valid, 
is  not  insufficient  because  it  contains  a  statement  as  to  the  terms 
o.n  which  the  tenant  may  remain,  that  is,  an  offer  of  a  new  ten- 
ancy,^ 2  s  and,  on  the  same  principle,  that  a  notice  by  the  tenant 
is  valid  though  it  contains  a  statement  of  the  terms  on  which 
he  will  remain.^ 39  ^  notice  has  been  held  not  to  be  invalid 
because  it  contains  a  warning  as  to  what  will  be  the  effect  of  a 
failure  to  comply  therewith,  as  when  a  notice  by  the  landlord 
states  that  if  the  tenant  fails  to  comply  he  will  be  liable  to  the 
statutory  penalty  for  holding  over.^^'^ 

While  a  notice  to  quit  must  be  of  the  length  required  by  the 
common  law  or  by  statute,  that  is,  it  must  be  given  such  period 

135  Baltimore  Dental  Ass'n  v.  Ful-  to  buy  the  property  or  pay  a  higher 
ler,  101  Va.  627,  44  S.  E.  771.  rent,  was  insufficient. 

136  Muskett  V.  Hill,  5  Bing.  N.  C.  In  D'Arcy  v.  Martyn,  63  Mich.  602, 
g94  30  N.  W.  194,  a  notice  requiring  the 

137  Baltimore  Dental  Ass'n  v.  Ful-  tenant  to  quit  or  pay  an  increased 
ler,  101  Va.  627,  44  S.  B.  771;  Smuc-  rent  was  regarded  as  insufficient, 
ker  V.  Grinberg,  27  Pa.  Super.  Ct.  while  on  the  other  hand,  in  Candler 
531_     "                    '  V.  Mitchell,  119  Mich.  464,  78  N.  W. 

138  Ahearn  v.  Bellman,  4  Exch.  551,  a  notice  to  quit  in  a  month,  or 
Div.  201;  Cleland  v.  Kelly,  13  U.  C.  to  begin  immediately  to  pay  an  in- 
Q.  B.  442;  Arasden  v.  Floyd,  60  Vt.  creased  rent  in  advance,  was  held 
386,  15  Atl.  332.  To  the  contrary  is  good,  the  earlier  case  being  distin- 
Ayres  v.  Draper,  11  Mo.  548  (fol-  guished  on  the  ground  that  in  it  the 
lowed  in  Columbia  Brew.  Co.  v.  Mil-  option  was  not  to  be  exercised  im- 
ler,  124  Mo.  App.  384,  101  S.  W.  711),  mediately,  but  was  to  be  exercised 
which  is  based  on  the  dictum  of  only  after  the  lapse  of  the  time  fixed 
Lord  Mansfield  in  Doe  d.  Matthews  by  the  notice. 

V      Jackson    1  Doug    175,   discussed  139  Bury  v.  Thompson   [1895]  1  Q. 

in  Ahearn  v.  Bellman,  4  Exch.  Div.  b.  231,  696. 

201,    supra.     In    Byrne   v.    Funk,   13  i4o  Doe  d.  Matthews  v.  Jackson,  1 

WlUy.  Notes  Cas.   (Pa.)   503,  it  was  Doug.  175;  Doe  d.  Lyster  v.  Goldwin, 

d.-iCH^ed    that   a   notice    to   quit   pre-  2  Q.  B.  143. 

seating  a  double  alternative,  that  is. 


.  ^gg  FORM  AND  LANGUAGE.  1445 

before  the  time  named  for  quitting,  it  is  not  necessary  that  it 
appear  on  the  face  of  the  notice  to  have  been  so  given,i"  that 
is  that  it  appear  to  have  been  given  six  months  or  three  months 
or  one  month,  as  the  case  may  be,  before  the  time  named.  ^^ 

A  notice  to  quit  expressed  to  be  "for  nonpayment  of  rent     has 
been  decided,  in  different  jurisdictions,  to  be,i^2  and  not  to  be, 
sufficient  as  a  notice  to  quit  terminating  the  tenancy  at  the  end 
of  a  rent  period,  without  reference  to  any  default  m  rent. 

Subject  to  the  requirement  that  the  recipient  of  the  notice  be 
not  misled  the  courts  have  sometimes  shown  a  disposition  to  sup- 
port a  notice  in  spite  of  inaccuracies  therein,  as,  for  example,  m 
case  of  a  mistake  in  the  name  of  a  party,--  or  the  descnption 
of  the  premises.i^sb     So  a  notice,  given  in  September,  17J5,  to 
quit  on  a  certain  date  in  March,  1795,  was  held  to  be  good  as  a 
notice  to  quit  in  March,  1796,1^4  and  a  notice  to  quit  at  such  time 
as  ''your  present  year's  holding  shall  expire  after  the  expiration 
of  half  a  year  from  the  delivery  of  this  notice"  was  held  good 
as  a  notice  to  quit  at  such  time  in  the  next  year,  the  "present 
year  of  the  holding  expiring  before  the  termination  of  the  halt 
year.i^^     But  when  a  notice  for  a  certain  day  in  October  "now 
next  ensuing,  or  such  other  day  or  time  as  your  tenancy  may  ex- 
pire," was  given  in  June,  and  so  not  six  months  before  the  next 
October,  the  court  refused  to  construe  it  as  good  for  October  m 
the  following  year,i46  and  the  same  view  was  taken  of  a  notice 
to  quit  "on  such  day  as  the  current  year  for  which  you  now  hold 
will  expire.  "^•^"^ 

The  contents  of  a  notice  to  quit  may  be  proven  by  oral  testi- 
mony or  by  the  production  of  an  examined  copy,  and  for  the 
purpo'se  of  proof  it  is  desirable  that  a  copy  of  the  notice  be  made 
before  it  is  served.     The  contents  of  the  notice  may,  it  has  been 

141  Doe  d   Gorst  v.  Timothy,  2  Car.  Cal.  236;  Farnam  v.  Hohman,  90  111. 

„    J.    35^  312;    Congdon  v.  Brown,  7  R.  I.  19. 

1^42  Crei-ghton    v.    Sanders,    89    lU.  "*  Doe  d.  Bedford  v.  Kightley,   7 

g^3            '^  Term  R.    63. 

*i43Tuttle    V    Bean,    54   Mass.    (13  145  Doe    d.   Williams   v.   Smith,    5 

Mete  )   275.  Adol.  &  E.  350. 

143a  Doe    V.    Spiller,     6    Esp.    70;  i46  Mills  v.  Goff,  14  Mees.  &  W.  72. 

Clark  V   Keliher   107  Mass.  406.  i^^  Doe  d.  Borough  of  Richmond  v. 

143b  Doe  d   Cox  V.  Roe,  4  Esp.  185;  Morphett.  7  Q.  B.   577.  disapproving 

Doe  d.  Armstrong:  v.  Wilkinson,  12  Doe  d.  Huntingtower  v.  CuUiford,  4 

Adol.  &  E.  743;  King  v.  Connolly,  44  Dowl.  &  R.  248. 


^446  NOTICE  TO  QUIT.  §  200 

held,  bo  proven  without  first  giving  notice  to  the  opposite  party 
to  produce  the  original,^^^'!^^  in  accordance  with  a  general  rule, 
frequently  asserted,  though  of  questionable  soundness,  that  a 
notice  to  produce  a  notice  is  never  necessary .i^o  According  to 
the  doctrine  of  some  cases,  it  seems,  if  the  notice  is  made  out  in 
duplicate,  the  duplicate  retained  may  be  used  as  evidence  of  the 
contents  without  accounting  for  the  one  delivered.i^i 

§  200.     Date  of  termination  of  notice. 

In  England  and  in  most  states,  a  notice  to  terminate  a  periodic 
tenancy  must,  in  the  absence  of  customi52  qj.  agreement^^^  to  the 
contrary,  be  expressed  to  expire  at  the  end  of  some  period 
of  the  tenancy,  and,  if  expressed  to  expire  at  another  time,  the 
notice  is  invalid.^^^  In  other  words,  the  notice  to  quit,  if  given 
by  the  landlord,  must  require  the  tenant  to  quit  at  the  end  of  the 
period,  and  if  given  by  the  tenant  it  must  assert  an  intention 
to  quit  on  that  day.  In  applying  this  rule  it  is  generally  con- 
sidered that  the  notice  may  be  expressed  to  expire  either  on  the 
last  day  of  the  period  or  on  the  day  after  the  last  day,  which  will 
ordinarily  be  the  day  corresponding  to  the  first  day  of  the  ten- 
ancy, the  theory  appearing  to  be  that,  since  the  terminatio.n  of  the 

148, 149  Doe   d.    Fleming  v.    Somer-  N.    J.   Law,   128,   29   Am.    Rep.    214; 

ton,  7  Q.  B.  58;   Colling  v.  Treweek,  Waters  v.  Williamson,  59  N.  J.  Law, 

6  Barn.  &  C.  394;  Falkner  v.  Beers,  337,  36  Atl.  665;  Finkelstein  v.  Her- 

2    Doug.    (Mich.)    117;    Eisenliart  v.  son,  55  N.  J.  Law,  217,  26  Atl.  688, 

Slaymaker,  14  Serg.  &  R.   (Pa.)  153.  20  L.  R.  A.  61;  Anderson  v.  Prindle, 

150  2  Wigmore,  Evidence,  §  1206.  23  Wend.  (N.  Y.)  616;  People  v.  Dar- 

151  See  Philipson  v.  Chase,  2  ling,  47  N.  Y.  666;  Simmons  v.  Jar- 
Camp.  Ill;  Jory  V.  Orchard,  2  Bos.  man,  122  N.  C.  195,  29  S.  E.  332; 
&  P.  39;  Eisenhart  v.  Slaymaker,  14  Silsby  v.  Allen,  43  Vt.  172,  5  Am. 
Serg.  &  R.  (Pa.)  153;  2  Wigmore,  Rep.  267.  In  South  Carolina,  how- 
Evidence,    §    1234.  ever,   a  tenancy   from  year  to   year 

152  Brown  v.  Burtinshaw,  7  Dowl.  can  be  terminated  only  at  the  end 
&  R.   603.  of  the  calendar  year,  in  the  absence 

153  See  ante,  at  note  67.  of    express    agreement    to    the    con- 

154  Doe  d.  Spicer  v.  Lea,  11  East,  trary.  Floyd  v.  Floyd,  4  Rich.  Law 
312;  Sidebotham  v.  Holland  [1895]  (S.  C.)  23.  But  a  notice  by  the 
1  Q.  B.  378;  Goode  v.  Howells,  4  tenant  that  he  will  vacate  the  prem- 
Mees.  &  W.  198;  Dixon  v.  Bradford  ises  "by  January  1,  1888,"  was  held 
&  Dist.  R.  Servants'  Coal  Supply  to  state  with  suflRcient  clearness  that 
Soc.  [1904]  1  K.  B.  444;  Hunter  v.  they  would  be  vacated  before  that 
Frost,  47  Minn.  1,  49  N.  W.  327;  dav.  WilFon  v.  Rodeman,  30  S.  C. 
Waggoner  v.  Preston,  83  Minn.  336,  210,  8  S.  E.  855. 

86  N.  W.  335;    Steffens  v.  E:arl,   40 


.  2  -0  DATE  OF  TERMINATION.  1447 

period  is  at  midnight  between  those  days,  the  one  day  is  as  close 
thereto  as  the  other.  For  instance,  while  a  notice  to  terminate  a 
tenancy  from  year  to  year  would  perhaps  more  properly  be  ex- 
pressed to  expire  on  the  day  before  the  anniversary  of  the  com- 
mencement of  the  tenancy,  that  being  the  last  day  of  the  year,i55 
it  is  valid  if  expressed  to  expire  on  the  anniversary  itself,!^^  and 
a  notice  to  terminate  a  tenancy  from  month  to  month  may  be 
expressed  to  expire  either  on  the  last  day  of  any  moaithly  peri- 
od,! ^"^  or  on  the  day  thereafter,  that  is,  the  day  corresponding  to 
that  on  which  the  tenancy  began.i^s  in  one  case,  however,  it  was 
decided  that  the  notice  must  be  expressed  to  terminate  on  the 
day  corresponding  to  the  day  of  commencement,  and  that  a  no- 
tice expiring  on  the  previous  day,  that  is,  on  the  last  day  of  tha 
period,  would  be  insufficient/ ^'^  and  there  are  occasional  dicta 
that  it  must  expire  on  the  day  corresponding  to  the  day  of  com- 
mencement, without  any  suggestion  as  to  whether  it  could  expire 
oil  the  previous  day.^^'^ 

Not  only  is  a  notice  expressed  to  expire  on  a  wrong  day  in- 
sufficient, but  so  is  a  notice  not  naming  any  day,  and  therefore 
constituting  in  effect  a  mere  demand  for  immediate  possession  by 
the  landlord,  or,  if  given  by  the  tenant,  an  offer  of  immediate 
possession.161     The  notice  is,  however,  valid,  though  given  for 

155  Fox  V.  Nathans,  32  Conn.  348;  Am.  Rep.  409.  The  decision  is  to 
Sidebotham  v.  Holland  [1895]  1  Q.  some  extent  based  on  the  local  prac- 
B.  378.  tice. 

156  Sidebotham  v.  Holland  [1895]  1  i^o  Berner  v.  Gebhardt,  87  Mo.  App. 
Q.  B.  378;  Doe  d.  Cornwall  v.  Mat-  409;  Dixon  v.  Bradford  &  Dist.  R. 
thews,  11  C.  B.  675;  Burrows  v.  Mick-  Servants'  Coal  Supply  Soc.  [1904]  1 
elson,  14  Manitoba,  739;  Thurber  v.  K.  B.  444.  In  England  a  notice  to 
Dwyer,  10  R.  I.  355.  quit  on  the  day  before  the  customary 

157  Leahy  v.  Lubman,  67  Mo.  App.  quarter  or  feast  day  (see  ante,  note 
191;  Combs  v.  Midland  Transfer  Co.,  49)  is  bad,  but  it  must  be  to  quit  on 
58  Mo.  App.  112;  Petsch  v.  Biggs,  31  that  day  if  the  tenancy  is  calculated 
Minn.  392,  18  N.  W.  101.  with   reference  to  such  days.     Page 

158  Walker  v.  Sharpe,  96  Mass.  (14  v.  More,  15  Q.  B.  684. 

Allen)    43;    Steffens    v.   Earl,   40  N.  lei  McLean  v.   Spratt,  19  Fla.  97; 

J.  Law,  128,  29  Am.  Rep.  214;  Searle  Grace  v.  Michaud,  50  Minn.  139,  52 

V.   Powell,    89   Minn.   278,   94   N.   W.  N.   W.    390;    Eastman    v.   Vetter,    57 

868;   Detroit  Sav.  Bank  v.  Bellamy,  Minn.  164,  58  N.  W.  989;  Vincent  v. 

49  Mich.  317,  13  N.  W.  606;   Harris  Corbin,    85    N.    C.    108;     Currier    v. 

V.  Halverson!  23  Wash.  779,  63  Pac.  Barker,    68    Mass.     (2    Gray)     224; 

549;  Drey  v.  Doyle,  28  Mo.  App.  249.  Hal<^y   v.    Hickman's    Heirs,    16    Ky. 

159  Waters  v.  Young,  11  R.  I.  1,  23  (Lilt.    Sel.     Cas.)     266;     People    v. 


1448 


NOTICE  TO  QUIT.  R  200 


two  alternative  dates,  if  one  of  them  is  riglit,^^^  and  no  particu- 
lar date  for  quitting  need  be  named,  the  notice  being  sufficient, 
at  common  law,  in  the  case  of  a  tenancy  from  year  to  year,  if 
to  quit  "at  the  expiration  of  the  present  year's  tenancy, "^^^  or 
"at  such  time  as  your  (or  my)  holding  shall  expire  next  after  the 
expiration  of  half  a  year  from  the  receipt  of  this  notice. '  '^^^  And 
such  a  general  expression  may  be  used,  in  case  of  uncertainty 
as  to  the  proper  date,  either  alone,  or  in  the  alternative  with  the 
mention  of  some  definite  date.^'^'^ 

The  general  rule  that  the  notice  must  be  expressed  to  terminate 
at  the  end  of  a  period  may,  in  the  particular  case,  be  excluded  by 
a  provision  of  the  lease,  as  when  it  is  stipulated  that  the  tenancy 
may  be  terminated  by  notice  of  a  specified  length  "at  any  time," 
it  being  unnecessary,  in  such  case,  if  the  notice  is  of  the  specified 
length,  that  it  terminate  at  any  particular  timc^^e 

The  rule  requiring  the  notice,  in  the  case  of  a  periodic  tenancy, 
to  terminate  at  the  end  of  a  period,  has  been  applied  in  Massa- 
chusetts, wdiere  a  periodic  tenancy  is,  as  such,  for  the  most  part 

Gedney,  15  Hun  (N.  Y.)  475;  Berner        i63  Doe  d.  Gorst  v.  Timothy,  2  Car. 

V.    Gebhardt,  87  Mo.  App.   409;    Mc-  &  K.  351;  Arbenz  v.  Exley,  Watkins 

Clung  V.   McPherson,   47   Or.    73,   81  &  Co.,  57  W.  Va.  580,  50  S.  E.  813. 
Pac.  567,  82Pac.  13;  Arbenz  v.  Exley,        i64  Hirst   v.   Horn,   6    Mees.   &   W. 

Watkins  &  Co.,  57  W.  Va.  580,  50  3.  393;    Holme    v.    Brunskill,    3    Q.    B. 

E.   813.     But  in  the  District  of  Co-  Div.  495;    Doe  d.  Phillips  v.  Butler, 

lumbia  it  was  decided  that  the  notice  2  Esp.  589. 

need   not    "specify   the   day   of    the       iss  Doe    d.    Campbell    v.    Scott,    6 

termination   of   the    lease,"   this   be-  Bing.  362.' 

ing   "a    fact   not   required,    and    one        ise  Bridges  v.   Potts,  17  C  B.    (N. 

presumably  as  well  known  to  the  de-  S.)  314;  Soames  v.  Nicholson  [1902] 

fendant   as   to  the  complainant.     It  1    K.    B.    157;     King    v.    Eversfield 

was    dated    October    23,    1903,    and  [1897]     2     Q.     B.     475.     In    Doe    d. 

served   the   full   thirty    days  before  King  v.   Grafton,   18    Q.    B.   496,    it 

the   end   of    the    term."     The    court  was  held  that,  there  being  a  letting 

merely  refers  to  Code,  §  1219,  which"  at  a  yearly  rent,  "until  one  of  the 

provides  that  the  notice   shall   "ex-  said  parties  shall  give  to  the  other 

pire"  on  the  day  of  the  month  from  six  calendar  months'  notice  in  writ- 

which    such   tenancy  began    to    run.  ing   to    quit,"    the   notice    might   be 

Byrne  v.  Morrison,  25  App.  D.  C.  72.  given  to   expire  with  any  half  year 

See,  perhaps  to  the  same  effect.  Doe  from  the  commencement  of  the  ten- 

d.  Ross  V.  Garrison,  31  Ky.  (1  Dana)  ancy.     This  case  is  distinguished,  on 

3g  the    particular     language    used,     In 

162  Doe  d.  Matthewson  v.  Wright-  Lewis  v.  Baker  [1906]  2  K.  B.  599. 
man,  4  Esp.  5. 


200  I5ATE  OF  TERMINATION.  1449 

unrecognized,^^^  to  the  case  of  a  tenancy  at  will,  for  which  the 
statute  prescribes  a  notice  of  three  months,  or,  if  the  interval  be- 
tween the  days  of  payment  of  rent  is  less  than  three  months,  a 
notice  equal  to  such  interval,^««  and  the  notice  is  required  to 
terminate  on  a  rent  day.^^^     And  this  rule  applies,  it  has  been 
decided,  even  though  the  rent  is  payable  in  advance,  and  the  rent 
day  might  consequently  be  regarded  as  the  beginning  of  a  new 
period  i-^^    It  may,  however,  be  modified  by  special  agreement,i^ 
and    as  in  the  case  of  a  periodic  tenancy,  the  notice  need  not 
specify  the  day  of  the  month  on  which  the  rent  will  become  due, 
but  it  is  sufficient  if  to  quit  at  the  end  of  the  month  or  quarter, 
as  the  case  may  be,  which  will  expire  next  subsequent  to  the  day 
when  the  rent  shall  again  become  due.^^^     In  Maine,  likewise, 
where  periodic  tenancies  are  not  recognized,  a  notice  to  terminate 
a  tenancy  at  will  is  required  to  terminate  with  a  rent  day.^^^ 

The  New  York  statute,!^*  providing  that  a  tenancy  at  will  may 
be  terminated  by  a  written  notice  from  the  landlord  of  not  less 
than  thirty  days,  does  not  require  the  notice  to  terminate  at  any 
particular  time,  and  it  has  been  decided  to  be  immaterial  that  the 
notice  wrongly  names  a  date  within  the  thirty  days'  interval,  it 
being  still  sufficient  to  terminate  the  tenancy  at  the  end  of  thirty 
days^i^s    There,  however,  if  rent  is  payable  at  regular  intervals, 

16T  See  ante,  §  14  b  (2)    (a).  held  that  the  new  tenancy  was  one 

168  Massachusetts  Rev.  Laws  1902,  at  will,  terminable  by  one  months 
p  j^29   §  12  notice,  expiring  at  any  time, 

'looprescott  v.  Elm,  61  Mass.  (7  it.  Sanford  v.  Harvey.  65  Mass. 
Cush)    346;    Currier   v.   Barker,    6S    (11  Cush.)    93. 

Mass  (2  Gray)  224;  Steward  v.  its  it  was  so  decided  In  Wilson  v. 
Harding,  68  Mass.  (2  Gray)  235;  Prescott,  62  Me.  115,  construing  a 
Hultain  V  Munigle,  88  Mass.  (6  Al-  statute  providing  for  a  "thirty  days 
jg^.    220  notice,  excepting  cases  where  no  rent 

^T0Walkerv.  Sharpe,  96Mass.  (14    is   due   at   the   time   the   notice   ex- 
Allen)    43.  Pi-s."     The      present     statute     ex- 
171  Farson  v.  Goodale,  90  Mass.  (8    pressly    so    proviaes.     See    Rer.    bt. 
Allen)    202.     In    May    v.    Rice,    108    1903,  c  96,  §  2. 
Mass.  150,  11  Am.  Rep.  328,  where,        i"  Real  Prop.  Law    §  198 
on  the  expiration  of  a  lease  for  years,        i75  Burns  v.  Bryant,  31  N.  Y.  45^ 
it  was  agreed  that  the  tenants,  who    People  v.  Ulrich,  2  Abb.  Pr    (N.  YJ 
were  looking  for  a  new  store,  might    28;  Peer  v.  O'Leary,  8  Misc.  350.  28 
remain  at  the  same  rent,  either  party    N.  Y.  Supp.  687;  Morgan  v.  Powers, 
to  have  the  right  to  terminate  the    83  Hun.  298,  31  N.  Y.  Supp.  954. 
tenancy  by  one  month's  notice,  it  was 


1453 


NOTICE  TO  QUIT. 


200 


the  tenancy  would  ordinarily  be  a  periodic  tenancy,  as  to  the  ter- 
mination of  which  by  notice  the  law  in  that  state  seems  to  be 
somewhat  indefinite.!^''  i^  Minnesota,  where  a  periodic  tenancy 
is  regarded  as  a  species  of  tenancy  at  will  for  the  purpose  of  the 
statutory  requirement  of  notice,  it  is  held  that  the  notice  must  ex- 
pire at  the  end  of  the  period  by  which  the  tenancy  is  measured, 
that  is,  the  ordinary  rule  is  applied.^"  But  in  New  Hampshire, 
a  statutory  provision  that  the  lessor  may  terminate  a  tenancy 
by  notice  in  writing  to  quit  "at  a  day  therein  named, "^'^  has 
been  held  to  dispense  with  any  necessity  that  it  require  a  ten- 
ant at  will  from  year  to  year,  from  month  to  month,  or  week  to 
week,  to  quit  on  the  last  day  of  the  year,  month  or  week  of  the 
tenancy.!"^ 

A  tenant  holding  over  his  term  is,  as  is  elsewhere  stated,i8o 
usually  regarded  as  a  periodic  tenant  if  his  holding  is  accompan- 
ied by  the  payment  and  acceptance  of  rent  accruing  after  the 
term.  In  most  states  a  notice  to  quit  is  necessary  to  terminate  a 
periodic  tenancy  so  arising  to  the  same  extent  as  any  other  peri- 


176  See  ante,  note  54. 

177  Hunter  v.  Frost,  47  Minn.  1, 
49  N.  W.  327;  Grace  v.  Michaud,  50 
Minn.  139,  52  n!  W.  390. 

178  New  Hampshire  Pub.  St.  1901, 
c.  246,  §  2. 

179  Stickney  v.  Burke,  64  N.  H.  377, 
10  Atl.  852.  where  the  question  at 
issue,  however,  was  merely  whether 
a  notice  expressed  to  expire  on  the 
first  day  of  the  calendar  month,  the 
day  on  whi^^h  the  rent  for  the  pre- 
ceding month  was  payable,  was  suffi- 
cient. The  case  seems  to  overrule 
a  dictum  in  Leavitt  v.  Leavitt,  47  N. 
H.  329.  The  tenant  cannot,  it  has 
been  decided  in  that  state,  if  the 
lep:al  notice  to  quit  is  given  by  the 
landlord,  extend  his  holding  beyond 
the  time  nnmed  by  undertaking  to 
apply  a  balance  due  him  by  the 
landlord  to  the  payment  of  rent  in 
advance  for  another  period,  or  part 
of  another  period.  Bliir  v.  Mason, 
64  N.  H.  487,  13  Atl.  871. 


In  Michigan  the  statute  (Comp. 
Laws  1897,  §  9257)  expressly  pro- 
vides that  the  notice  shall  not  be 
held  void  by  reason  of  it  mention- 
ing a  day  for  the  termination  of  the 
tenancy  not  corresponding  to  the 
conclusion  or  commencement  of  any 
rent  period.  Even  apart  from  this 
statute,  it  seems  never  to  have  been 
regarded  as  necessary  to  name  the 
day  for  quitting.  Hogsett  v.  Ellis, 
17  Mich.  351;  Hart  v.  Lindley,  50 
Mich.  20,  14  N.  W.  682.  In  Gauson 
v.  Baldwin,  93  Mich.  217,  53  N.  W. 
171,  it  was  decided  that  though  the 
notice  was  not  given  by  the  land- 
lord the  statutory  time  before  be- 
ginning proceedings  for  possession, 
a  judgment  for  possession  would  be 
sustained,  no  objection  to  the  notice 
having  been  asserted  in  the  lower 
court,  and  the  statutory  period  hav- 
ing since  elap.sed. 
180  See  post,  §  210  b. 


^  200  DATE  OF  TERMINATION.  1451 

odic  tenancy/ s^  and  tlie  same  requirement  applies  as  regards  the 
date  of  the  termination  of  the  notice.     It  has  in  England  been 
decided  that,  in  the  case  of  a  periodic  tenancy  created  by  the  pay- 
ment of  rent  by  the  overholding  tenant  and  its  acceptance  by  the 
landlord,  each  period  of  the  new  tenancy  is,  for  the  purpose  of  the 
notice  to  quit,  to  be  deemed  to  commence,  in  the  absence  of  evi- 
dence to  the  contrary,  not  upon  the  expiration  of  the  original 
term,  but  on  the  day  corresponding  to  its  commencement.     For 
instance,  where  a  lease  was  made  for  eighteen  months  at  a  yearly 
rent,  and  the  tenant  continued  to    occupy    after    the    eighteen 
months,  paying  the  same  rent,  the  notice  to  quit,  it  was  decided, 
must  terminate  on  a  day  corresponding  to  the  day  of  the  be- 
ginning of  the  term  and  not  to  the  day  of  its  termination,  the  ten- 
ancy from  year  to  year  being  considered  to  commence  on  the  for- 
mer date.182    This  doctrine  was,  ho^vever,  held  not  to  apply  when 
the  tenant  assigned  during  the  term,  and  the  assignee  held  over, 
the  tenancy  from  year  to  year  being  considered  to  terminate,  not  at 
the  time  of  the  commencement  of  the  original  term,  but  at  the 
time  of  its  expiration,is3  unless  the  assignee  expressly  agreed  to 
hold  on  the  same  terms  as  his  assignor.is-'     The  doctrine  referred 
to  has  been  applied  when  a  tenant  held  over,  after  the  expiration 
of  his  lessor's  interest,  by  consent  of  the  lessor's  successor  in  in- 
terest, as  when  the  lease  was  by  a  tenant  for  life  and  the  holding 
over  was  under  and  by  consent  of  the  remainderman,is5  ^nd  when 
the  lease  was  by  a  tenant  for  years,  and  the  holding  over  was 
under  a  subsequent  tenant  for  years,!^^  and  in  each  of  these  cases 
it  was  considered  that  the  tenancy  from  year  to  year,  arising  from 
the  holding  over,  was  to  be  computed  from  the  commencement 
of  the  tenant's  original  holding,  and  not  from  the  commencement 
of  the  holding  over. 

A  question  has  occasionally  arisen  in  England  as  to  the  time  for 
the  notice  to  terminate,  when  the  lease  provides  that  the  tenancy 

181  See  post,  §  210  b,  at  note  95.        held  over,  and  the  question  as  to  the 

182  Doe  d.  Robinson  v.  Dobell,  1  Q.    character  of  the  holding  was  left  to 
B.  80fi;   Berrey  v.  Lindley,  3  Man.  &    the  jury. 

Q    49§  iss  Roe  d.  .Jordan  v.  Ward.  1  H.  Bl. 

183  Doe  d.  Buddie  v.  Lines,  11  Q.  97;  Doe  d.  Collins  v.  Weller,  7  Term 
B.  402.  R.  478. 

184  Humphreys  v.  Franks,  18  C.  B.  i so  Kelly  v.  Patterrson,  L.  R.  9  C. 
323,  -where  the  widow  of  the  tenant  p.  G81. 


1452  NOTICE  TO  QUIT.  §  201 

shall  commence  at  different  times  as  to  different  parts  of  the 
premises.  It  has  been  decided  that  the  notice  should  be  expressed 
to  expire  at  the  time  of  the  termination  of  the  tenant 's  interest  in 
that  portion  which  is  the  principal  subject-matter  of  the  lease/ ^7 
which  is  such  principal  subject-matter  being  a  question  for  the 
jury. 188 

§  201.    Computation  of  period  of  notice. 

There  are  but  few  decisions  with  reference  to  the  mode  of  com- 
puting the  period  of  time  for  which,  by  the  common  law  or  stat- 
ute, the  notice  must  run.  The  rule  that,  in  computing  a  period  of 
time,  one  day.  either  the  first  or  the  last,  is  to  be  included,  and 
the  other  excluded,^^^  has  occasionally  been  applied  in  this  con- 
nection, and  accordingly  a  requirement  of  a  month's  notice  has 
been  regarded  as  satisfied  when  the  time  named  for  quitting  was 
the  day  of  the  next  month  corresponding  to  the  day  on  which  the 
notice  was  given,i^^  or  when  the  proceedings  to  recover  possession 
were  begun  on  that  day.i'^i  By  other  cases  it  is  regarded  as 
necessary  that  the  period  named  in  the  statute,  or  by  the  com- 
mon-law requirement,  be  computed  as  exclusive  of  the  day  on 
which  the  notice  is  given,  and  also  of  the  day  on  which  the  ten- 
ant is  required  to  yield  possession.^^^     There  is  one  case  to  the 

187  Doe  d.  Daggett  v.  Snowden,  2  and  the  first  of  September  happened 
"W.  Bl.  1224;  Doe  d.  Strickland  v.  to  be  a  Sunday,  a  notice  given  on 
Spence,  6  East,  120;  Doe  d.  Bradford  the  second  of  September  was  regard- 
V.  Watkins,  7  Bast,  551.  ed  as  sufficient.     In  Quartermaine  v. 

188  Doe  d.  Heapy  v.  Howard,  11  Selby,  5  Times  Law  R.  223,  Lord 
East,  498;  Doe  d.  Kindersley  v.  Esher,  M.  R.,  expresses  approval  of 
Hughes,  7  Mees.  &  W.  139.  the  statement  in  Leake  on  Contracts 

189  See  28  Am.  &  Eng.  Enc.  Law  (3d  Ed.  at  p.  729)  that  "where  notice 
(2d  Ed.)  at  p.  217;  note  to  State  v.  is  required  as  a  condition  precedent 
Michel,  49  L.  R.  A.  193.  to  any  right  or  claim,  as  a  month's 

190  Baker  v.  Kenny,  G9  N.  J.  Law,  notice  of  action  or  a  week's  notice  to 
180,  54  Atl.  52G;  McGowen  v.  Sen-  quit,  it  is  to  be  computed  exclusive 
nett,  1  Brewst.   (Pa.)   397;  Corby  v.  of  the  day  of  the  notice." 

Brill  Book  &  Stationery  Co.,  76  Mo.  i9i  Barium    v.    Berger,    125    Mich. 

App.  506.     So  in  Murrell  v.  Lion,  30  504,  84  N.  W.  1070. 

La.  Ann.  255,  it  was  held  that  where  in2  See  Bay  State  Bank  v.  Kiley, 

the    lease    provided    that    if    either  80  Mass.  (14  Gray)  492.   In  Aiken  v. 

party  desired  to  terminate  the  ten-  Appleby,    Morris    (Iowa)    8,   it   was 

ancy,    he     must     give    notice     one  held  that  where  a  tenant  agreed  to 

month   before   the  first   of  October,  quit   on    ten    days'   notice,   ten   full 


§201 


COMPUTATION  OP  PERIOD. 


1453 


effect  that,  in  view  of  the  language  of  the  particular  statute,  both 
of  these  days  might  be  included  in  computing  the  statutory 
period.^^^ 

A  statutory  requirement  of  one  month 's  notice,  expiring  at  any 
time,  has  been  held  to  be  satisfied  by  a  thirty  days'  notice,  if  the 
notice  is  given  in  a  calendar  month  having  only  thirty  days.^^^ 
A  provision  that  if  notice  shall  be  given,  "more"  than  twenty 
days  prior  to  the  end  of  the  month,  to  leave  at  the  end  of  the 
month,  the  tenant  shall  be  bound  to  do  so,  has  been  regarded  as 
not  requiring  a  notice  of  more  than  twenty  days,  the  word  "more" 
merely  designating  the  expiration  of  the  number  of  days.^^^ 

A  requirement  of  a  notice  of  a  particular  length  is  not  satis- 
fied by  the  mailing  of  the  notice  at  the  prescribed  time  before 
the  day  for  quitting,  but  it  must  reach  the  person  to  whom  it  is 
sent  at  the  prescribed  time.i^s    And  so  it  has  been  held  that  a 


days  must  elapse,  exclusive  of  the 
day  on  which  the  notice  was  given, 
before  an  action  could  be  brought 
for  possession,  and  accordingly,  if 
notice  was  served  on  the  last  day 
of  April,  the  action  could  not  be 
brought  on  the  tenth  of  May.  In 
Hungerford  v.  Wagoner,  5  App.  Div. 
590,  39  N.  Y.  Supp.  369,  it  was  de- 
cided that,  in  view  of  the  statute 
providing  that  "the  day  from  which 
any  specified  number  of  days,  weeks 
or  months  of  tim.e  is  reckoned  shall 
be  excluded  in  making  the  reckon- 
ing," a  month's  notice  to  quit,  given 
on  the  second  day  of  October,  did  not 
entitle  the  landlord  to  begin  pro- 
ceedings to  dispossess  the  tenant  on 
the  second  of  November.  In  Wil- 
liams V.  McAnany,  1  Pa.  Dist.  R.  128, 
where  there  was  a  lease  made  on 
the  26th  of  a  month  to  run  from 
month  to  month,  until  either  party 
should  give  one  month's  notice  prev- 
ious to  the  expiration  of  the  current 
month,  a  notice  served  on  the  26th 
of  one  month  was  held  ipsuffieient  to 
terminate  the  tenancy  on  the  26th 
of    the   next    month. 

193  Duffy    V.    Ogden,    64    Pa.    240, 


where  it  was  decided  that  the  three 
months'  notice  which  the  statute  re- 
quires to  be  given  before  the  end  of 
the  term,  in  order  to  sustain  sum- 
mary proceedings  (post,  §  274  a 
[3]),  was  satisfied  when  the  term 
ended  March  24th  and  the  notice  was 
given  December  25th. 

194  People  V.  Ulrich,  2  Abb.  Pr.  (N. 
Y.)  28;  Minard  v.  Burtls,  83  Wis. 
267,  53  N.  W.  509. 

193  McGinnis  v.  Genss,  25  Wash. 
490,  65  Pac.  755.  It  was  consequent- 
ly regarded  as  sufficient  that  a  no- 
tice to  terminate  the  tenancy  on  the 
31st  of  January  was  served  on  the 
11th  of  that  month. 

19G  Roberts  v.  Grubb,  5  Houst. 
(Del.)  461.  And  see  cases  cited 
post,  note  220.  In  Binswagner  v. 
Deardon,  9  Pa.  Oo.  Ct.  653,  it  was 
held  to  be  a  question  for  the  jury 
whether  a  notice  was  given  in  suffi- 
cient time  when,  on  the  last  day  al- 
lowed for  notice,  the  tenant  sent  the 
notice  twice  to  the  landlord's  office, 
in  business  hours,  and,  finding  it 
closed,  mailed  it  on  that  day,  it  be- 
ing received  the  next  day. 


1454  NOTICE  TO  QUIT.  |  202 

notice  dropped  in  the  letter  box  of  the  addressee  took  effect  only 
from  the  time  that  it  was  actually  received  by  him.^^"^ 

In  view  of  the  uncertainty  as  to  the  mode  of  computing  time 
in  this  connection,  it  is  advisable,  in  giving  a  notice  to  quit,  to 
allow  a  margin  of  time,  and,  as  a  matter  of  fact,  notices  are  ordin- 
arily given  more  than  the  prescribed  period  before  the  time  named 
for  the  expiration  of  the  notice.  It  has  never  been  suggested  that 
a  notice  is  invalid  because  thus  given  earlier  than  the  common- 
law  or  statutory  period  before  the  time  named  for  quitting. 

§  202.    Waiver  of  defects. 

There  are  a  number  of  cases  in  this  country  to  the  effect  that 
a  defect  in  a  notice  to  quit  may  be  waived  by  the  recipient  of  the 
notice,  so  as  to  render  it  effective  as  against  him  to  terminate  the 
tenancy.  Exactly  what  is  necessary  to  effect  such  a  waiver  does 
not  clearly  appear.  There  are,  in  one  jurisdiction,  cases  to  the 
effect  that  the  mere  failure  of  the  recipient  to  object  to  the  suf- 
ficiency of  the  notice  is  sufficient  to  justify  a  finding  of  a  waiver,!^^ 
though  there  is  elsewhere  a  decision  clearly  repudiating  such  a 
view.i^^  Ordinarily  the  inference  of  a  waiver  has  been  based  on 
the  absence  of  express  objection  to  the  notice,  accompanied 
by  other  acts  which  might  be  regarded  as  calculated  to  induce 
the  belief  that  the  recipient  would  acquiesce  in  the  termination  of 
the  tenancy  at  the  time  named  in  the  notice.-^'^     In  one  case  it 

197  May  V.  Rice,  108  Mass.  150,  11  ered  the  key  two  weeks  later.  In 
Am.  Rep.  328.  Thomson  v.  Chick,  92  Hun,  150,  37 

In  Hultain  v.  Munigle,  88  Mass.  (6  N.  Y.  Supp.  59,  it  was  decided  that 

Allen)    220,    it   was    decided   that   a  if  the  tenant,  while  moving  out,  in- 

notice  requiring  the  tenant  to   quit  formed  the  landlord  that  he  was  do- 

at    the    proper    interval    "from    the  ing  so,  a  case  was  presented  for  the 

service    of    this    notice    upon    you,"  jury  whether  there  was  a  waiver  of 

without  naming  any  day,  if  left  at  the    regular    notice    by    failure    to 

the   tenant's   house   in   his   absence,  object  to  the  notice  as  given.     Com- 

did  not  begin  to  run  until  his  return,  pare  cases  cited  ante,  note  76. 

And  to   the    same  effect,   see   Hodg-  lao  Bay    State   Bank   v.    Kiley,    80 

kins  V.  Price,  137  Mass.  13.  Mass.  (14  Gray)  492. 

198  In  T^udington  v.  Garlock,  29  N.  200  in  Boynton  v.  Bodwell,  113 
Y.  St.  Rep.  60-0,  9  N.  Y.  Supp.  24,  Mass.  531,  evidence  that,  after  serv- 
there  was  held  to  be  a  waiver  of  de-  ice  of  notice  on  the  landlord,  the 
fects  in  a  notice  given  by  the  tenant  latter  offered  to  lower  the  rent  and 
if  the  landord  failed  to  object  until  make  improvements,  that  be  did  not 
after  th«  tenant  moved  out  and  tend-  object   to   the   notice,  and  that  the 


§2  2 


WAIVER  OF  DEFECTS. 


1155 


is  said,  without  any  specific  reference  to  tlie  doctrine  of  'Svaiver," 
that  a  tenant  cannot  be  estopped  to  question  the  validity  of  a  no- 
tice from  the  landlo^'d  by  reason  of  acts  done  by  him  after  the 
time  at  which  the  notice  could  be  given,2oi  and  it  seems  that  the 
same  principle  might  well  be  applied  to  the  theory  of  waiver  of 
defects,  inferred  from  the  acts  merely  of  the  recipient  of  the  no- 
tice, that  is,  that  they  must  have  been  such  as  to  mislead  the  giving 
of  the  notice  to  his  detriment.^'^^     Such  a  view  is  not,  however, 


tenant,  when  he  left,  sent  the  keys 
to  him,  was  held  to  warrant  a  find- 
ing that  he  waived  a  defect  in  the 
notice  in  failing  to  fix  the  time  of 
quitting.  In  this  same  case  it  was 
decided  that,  it  appearing  that  the 
tenant  left  because  of  the  obstruc- 
tion of  light  by  the  erection  of  a 
wall,  evidence  that  at  the  time  of 
making  the  lease  the  landlord  had 
said  that  there  was  no  danger  of 
such  an  obstruction  was  held  to  be 
admissible  to  show  such  a  waiver. 
No  reason  is  stated  for  this  latter 
holding. 

The  failure  of  a  notice  from  the 
landlord  to  a  tenant  from  month  to 
month  to  name  the  proper  time  for 
quitting  was  held  to  be  waived  by 
the  tenant's  action  in  refusing  to 
quit  on  the  ground  that  he  was  a 
tenant  from  year  to  year  (Drey  v. 
Doyle,  99  Mo.  459),  and  also  when 
neither  the  landlord  nor  his  agent 
objected  to  the  sufficiency  of  the 
notice  until  near  the  time  for  quit- 
ting, and  the  latter  asked  the  tenant 
to  withdraw  it,  and  offered  induce- 
ments to  get  him  to  remain.  Corby 
V.  Brill  Book  &  Stationery  Co.,  76 
Mo.  App.  506.  The  fact  that  the 
landlord  continues  to  demand  and 
accept  payments  of  rent  accruing 
before  the  expiration  of  the  notice 
does  not  show  a  waiver  of  defects 
therein.  Whicher  v.  Cottrell,  165 
Mass.  351,  43  N.  E.  114. 

In  Smith  v.  Snyder,  168   Pa.  541, 


32  Atl.  64,  a  lessor  from  year  to  year 
made  no  objection  to  a  verbal  notice 
from  his  tenant,  and  rubsequently, 
during  the  last  month  of  the  cur- 
rent year,  the  lessee  having  pro- 
posed to  hold,  after  its  expiration, 
from  month  to  month,  the  lessor's 
agent  promised  to  see  whether  the 
lessor  would  agree  to  this  and  to  in- 
form the  lessee  of  the  answer  in  time 
so  that  he  should  not  be  prejudiced 
by  holding  over,  but  the  agent  failed 
to  comm.unicate  again  with  the  les- 
see, and  the  latter,  assuming  that 
his  proposition  had  been  accepted, 
held  over,  and  it  was  decided  that 
the  jury  was  justified  in  finding  a 
waiver  of  a  v;ritten  notice,  though 
not  in  finding  an  acceptance  of  the 
lessee's  proposition,  and  consequent- 
ly the  lessee  continued  to  hold  from 
year  to  year. 

In  Sn-^der  v.  Porter,  69  Neb.  431, 
95  N.  W.  1009,  it  was  decided  that 
the  tenant  waives  the  objection  that 
the  notice  was  not  of  sufficient 
length  by  pleading,  in  defense  to 
an  action  against  him  for  posses- 
sion, merely  that  a  new  lease  had 
been  made  to  him  for  a  definite 
term. 

201  Baltimore  Dental  Ass'n  v.  Ful- 
ler, 101  Va.  627.  44  S.  E.  771. 

202  See  29  Am.  <&  Eng.  Enc.  of  Law 
(2d  Ed.>  title  "Waiver";  article  by 
Cohn  P.  Campbell,  Esq.,  3  Mich.  Law 
Rev.  9. 


1456  NOTICE  TO  QUIT.  §  203 

suggested  by  the  cases  previously  referred  to,  and  they  are  per- 
haps directly  opposed  thereto. 

There  is  in  England  a  recent  case  which  suggests  the  possibility 
that  defects  in  a  notice  to  quit  may  be  cured  by  the  action  of  the 
recipient  in  recognizing  the  notice  as  valid.'°^  On  the  other  hand 
a  notice  expressed  to  expire  at  the  wrong  date,  though  accepted 
by  the  other  party,  has  been  there  regarded  as  not  binding  on 
the  giver  of  the  notice. ^^^^  The  failure  of  the  addressee,  when 
served  personally  with  the  notice,  to  object  to  the  time  named, 
has  been  regarded  as  raising  a  presumption  that  this  was  the 
proper  time,205  ^  presumption  capable  of  rebuttal  if  not  in  accord 
with  the  facts.206 

§  203.    Service  of  notice. 

Personal  service  of  the  notice  upon  the  person  for  whom  it  is 
intended  is  not  necessary,  if  it  is  served  upon  an  agent  having  ex- 
press or  implied  authority  to  receive  such  a  notice.^^^'^  A  notice  to 
a  corporation  may  be  served  on  the  treasurer,  or,  it  seems,  on  any 
of  its  executive  oiScers.^t*^ 

Upon  the  question  whether  a  notice  may  be  served  upon  the 
wife  or  servant  of  the  person  for  whom  it  is  intended,  the  deci- 
sions are  not  entirely  clear.  There  are  cases  apparently  to  the  eft 
feet  that  a  service  upon  the  wife  or  servant  of  such  person,  at  his 

203  General  Assur.  Co.  v.  Worsley,  204  Doe  d.   Murrell  v.   Milward,   3 

64  Law  J.  Q.  B.  253.     There  the  ten-  Mees.  &  W.  328. 

ant  wrote  in  January,  1892,  to  the  205  Doe   d.  Charges  v.   Forster,  13 

landlord,  "I  hereby  give  you  notice  East,    405;     Thomas    v.    Thomas,   -2 

that  I  wish  to  terminate  my  tenancy  Camp.  647;  Doe  d.  Leicester  v.  Biggs, 

*     *     *.     Will    you    kindly    let    me  2  Taunt.  190. 

know    when    my    tenancy    will    ex-  206  Walker  v.   Code,  6  Hurl.  &  N. 

pire?"     And  the  reply  said,  "We  find  594;   Oakapple  v.  Copous,  4  Term  R. 

that  six  months'  notice  must  be  giv-  361. 

en  to  terminate  on  the  first  of  July  207  Doe  d.  Prior  v.  Ongley,  10  C.  B. 
in  any  year;  you,  therefore,  hold  the  25;  Prendergast  v.  Searle,  81  Minn, 
rooms'  till  July,  1893,"  and  it  was  291,  84  N.  W.  107  (Notice  directed  to 
held  in  a  brief  opinion  (Per  Wills  &  landlord  may  be  served  on  one  man- 
Wright,  J.  J.)  that  "it  is  obvious  the  aging  the  property), 
tenant  meant  to  give  notice  to  quit  208  Doe  d.  Carlisle  v.  Woodman,  8 
the  officer  on  the  1st  of  July,  1893,  Ea«t,  22?;  Lindeke  v.  Associates 
and  the  landlord  meant  to  accept  it."  P-<iJty  Co.,  77  C.  C.  A.  56,  146  Fed. 
and  that  there  was  sufficient  notice  630. 
to  terminate  the  tenancy. 


§  203 


SERVICE. 


1457 


residence,  is  absolutely  good,  upon  a  conclusive  implication  tliat 
the  wife  or  the  servant  is  an  agent  for  this  purpose.^o^  There  are 
to  be  found,  however,  expressions  to  the  effect  that  there  is  no 
conclusive  implication  of  agency  in  such  a  case,  but  that  there  is 
merely  a  rebuttable  presumption  to  that  effect,-io  and  some  cases 
suggest  that  there  is  no  such  conclusive  implication  of  agency 
unless  the  master  or  husband  is  at  the  time  absent  from  his  resi- 
dence.211  The  question  whether  such  service  is  effective  seems  to 
be  entirely  independent  of  whether  the  notice  was  eventually  re- 
ceived by  the  person  for  whom  it  was  designed,2i2  nor  does  it  ap- 
pear to  be  necessary  that  the  person  serving  it  explain  its  con- 
tents to  the  person  on  whom  it  is  served.213     Service  upoo  the 


209  Jones  V.  Marsh,  4  Term  R.  464; 
Doe  d.  Neville  v.  Dunbar,  Moody  & 
M.  10;  Smith  v.  Clark,  9  Dowl.  202; 
Clark  Y.  Keliher,  107  Mass.  406; 
Steese  v.  Johnson,  168  Mass.  17,  46 
N.  E.  431,  36  L.  R.  A.  493,  60  Am. 
St.  Rep.  364;  Hazel  tine  v.  Colburn, 
31  N.  H.  4G6;  De  Giverville  v.  Stolle, 
9  Mo.  App.  185.  Service  on  the  hus- 
band of  the  tenant  was  held  good 
when  he  had  acted  as  her  agent  in 
obtaining  the  lease.  Cook  v.  Cres- 
well,  44  Md.   581. 

210  Tanham  v.  Nicholson,  L.  R.  5 
H.  L.  561. 

211  Beiler  v.  Devoll,  40  Mo.  App. 
251;  Doe  d.  Hearn  v.  Gray,  2  Houst. 
(Del.)  135.  See  Gerhart  Realty  Co. 
V.  V/eitcr,  108  Mo.  App.  248,  83  S. 
W.  278. 

212  Tanham  v.  Nicholson,  L.  R.  5 
H.  L.  561;  Doe  d.  Neville  v.  Dunbar, 
1  Moody  &  M.  10;  Smith  v.  Clark,  9 
Dowl.  202.  But  see  Ewing  v.  O'Mal- 
ley,  108  Mo.  App.  117,  82  S.  W.  1087. 
In  Stees?  v.  Johnson,  168  Mass.  17, 
46  N.  B.  431,  36  L.  R.  A.  493,  60  Am. 
St.  Rep.  364,  it  was  decided  that 
service  on  the  wife  or  servant  of  the 
defendant  was  sufficient,  since  this 
"would  furnish  presumptive  evi- 
dence  that   the    defendant   received 


the  notice."  It  does  not  appear 
whether  by  this  is  meant  that  such 
a  presumption  may  be  rebutted.  As 
shown  by  Lord  Hatherley  in  the  Eng- 
lish cas3  last  cited,  granting  that 
there  is  an  agency  in  the  wife  or 
servant  for  the  purpose  of  receiv- 
ing service,  it  must  be  regarded  as 
entirely  immaterial  whether  the  no- 
tice actually  reaches  the  husband 
or  master.  The  remarks  of  Duller, 
J.,  in  Jones  v.  Marsh,  4  Term  R.  464, 
to  the  effect  that  it  might  be  shown 
that  the  notice  did  not  reach  him, 
may,  in  view  of  the  later  English  de- 
cisions, be  disregarded. 

213  See  Tanham  v.  Nicholson,  L.  R. 
5  H.  L.  5G1.  In  Walker  v.  Sharpe, 
103  Mass.  154,  Gray,  J.,  seems  to  re- 
gard the  English  cases  as  being  to 
the  effect  that  such  explanation  is 
necessary  if  the  service  on  the  ten- 
ant's wife  or  servant  is  at  his  resi- 
dence off  the  demised  premises, 
while  not  necessary  if  on  his  wife 
or  other  agent  on  the  premises.  The 
cases  cited  by  him  do  not,  however, 
distinguish  between  the  case  of  a 
service  on  and  off  the  premises,  ex- 
cept that  in  Roe  d.  Blair  v.  Street,  2 
Adol.  &  E.  329,  it  is  decided  that  a 
service  on  the  wife  on  the  premises 


L.  and  Ten.  92. 


1458 


NOTICE  TO  QUIT.  R  203 


servant  of  a  boarding  house  at  which  one  lives  has  been  regarded 
as  not  equivalent  to  service  on  his  servant  at  his  own  residence 
within  this  rule,  it  being  possible,  with  diligence,  to  find  the  ten- 
ant himself. 21 4 

A  notice  to  two  joint  owners  of  the  reversion  must,  it  has  been 
decided  in  one  jurisdiction,  be  served  upon  both,2i5  ^^t  elsewhere 
it  has  been  regarded  as  a  question  for  the  jury  whether  the  no- 
tice did  not  reach  the  other,  so  as  to  affect  him  therewith .^i" 
Where  a  tenant  occupied  the  premises  for  business  purposes  with 
his  partner,  service  on  the  latter,  in  the  absence  from  the  state 
of  the  tenant  and  his  family,  was  regarded  as  sufficient.^i^  And 
a  notice  addressed  to  joint  tenants  under  a  lease  was  regarded 
as  properly  served,  when  actually  served  on  one  of  them  on  the 
leased  premises,  on  which  both  resided.^is 

A  notice  has  been  held  to  be  sufficiently  served  when  put  un- 
der the  door  of  the  house  of  the  person  for  whom  intended,  it 
being  shown  that  he  actually  received  it.^i^    And  the  service  may 

is    sufficient,    wliile    if    on    tlie   wife  279,  9  N.  E.   647.     Tliis  appears   to 

ofl  tlie  premises  it  may  not  be.     In  liave  been  tlie  notice  required  in  the 

this    case,    however,    the    "no+ice    to  case  of  summary  proceedings   (post, 

quit"  was.  as  appears  from  the  re-  §  274  a  [3]),  but  the  court  discusses 

port  in  Roe  d.  Blair  v.  Street,  4  Nev.  it  as  a  question  of  a  notice  to  term- 

&  M.  42,  and  from  the  facts  of  the  inate     a     tenancy.      In    Langan     v. 

case,  a   demand  of  possession  as   a  Schlief,  55  Mo.  App.  213.  it  is  decided 

pre-requisite    to   an   action   of  eject-  that   delivery   of   the   notice  to   one 

ment  against  a  tenant  at  will.     In  cotenant    on    the    premises    for    the 

Smith  V.  Clark,  9  Dowl.  202,  the  serv-  other  is  good  as  against  the  other, 

ice  on  the  tenant's  wife,  apparently  219  Alford   v.    Vickery,   Car.    &   M. 

on    the   premises,   was   accompanied  280.  So  in  Currier  v.  Grebe,  142  Pa.  48, 

by  a  statement  that  the  paper  was  "a  21  Atl.  755,  it  was  held  that  the  jury 

notice  of  discharge,"  and  the  service  were  justified  in  finding  that  there 

was  upheld.  was    a    sufficient    service   when    the 

214  De   Giverville  v.   Stolle,  9   Mo.  notice  was  pushed  under  the  door  of 

^pp   ig5  the  tenant's  house,  when  he  was  ab- 

21.S  Bless  V.   Jenkins,  129  Mo.  647,  sent   with    in^:ent  to    avoid    service, 

31  S.  W.   938;   Long  Bros.  v.  Bolen  and  he  entered  the  same  door  on  hi? 

Coal  Co.,  56  Mo.  App.  605.  return,  and   the  next  day  was  told 

216  Doe  d.  Bradford  v.  Watkins,  7  of  the  notice  by  the  landlord.     And 

East.  551.     Compare  Doe  d.  Macart-  see  May  v.  Rice,   108  Mass.  150,  11 

ney  v.  Crick,  5  Esp.  196.   .  Am.    Rep.    328,    where    service    was 

2i7Y.".ilker'  V.    Sharpe,    103    Mass.  n^p.ie  by  dropping  the  notice  in  the 

;^54  letter  box  of  the  addressee. 

2i«  Grundy    v.    Martin,    143    Mass. 


§  203  SERVICE.  145^ 


20 


be  by  mailing  the  notice,  provided  it  is  received  in  proper  time, 
and  there  would,  in  this,  as  in  other  cases,  be  a  presumption  that 
the  notice,  if  properly  addressed,  posted,  and  maHed,  was  duly 
received  221  A  notice  was  held  to  be  effective  when  mailed  m 
time  to  reach  the  office  of  the  person  to  whom  directed  on  the  last 
day  on  which  notice  could  be  given,  though  there  was  no  person 
there  to  receive  it,  so  that  it  did  not  actually  reaeh  him  till  the 
next  day .222  ^ 

An  express  requirement  of  the  lease,  that  notice  be  delivered 
to  the  tenant  or  his  assigns,  has  been  held  not  to  be  satisfied  by 
the  sendioig  of  notice  to  his  last  known  address,  nor  by  service 
upon  a  sublessee,  although  the  tenant  himself  has  disappeared.2-* 
The  service  of  the  notice  need  not  be  made  by  an  officer,  but  the 
landlord  or  anv  person  designated  by  him  may  make  it.224 

In  a  number  of  states  there  are  express  statutory  provisions 
as  to  the  mode  of  service  of  a  notice  to  the  tenant  to  quit.  These 
ordinarily  provide  for  service  upon  some  person  other  than  the 
tenant  sometimes  restricting  such  substituted  service  to  cases  m 
which 'the  tenant  cannot  be  found,  and  the  person  thus  named 
for  service  in  place  of  the  tenant  being  usually  a  person  m  pos- 
session of  the  premises,  or  a  person  of  suitable  age  and  discretion 
residing  thereon.225     They  further  ordinarily  provide  that,  m  case 

220  Candler  v.  Mitchell,  119  Micli.  225  California    Civ.    Code.    §    789; 

464    78  N    W    551;   Alworth  v.  Gor-  Code  Civ.  Proc.  §  1162  (If  tenant  ab- 

rtoTi'    81    Minn    445     84   N.   W.   454.  sent  from  place  of  residence  or  usual 

See'ante,  at  note  196.  P^ace  of  business    by   leaving  copy 

...Gresham   House   Estate   Co.  v.  ^.ith  person  of  suitable  -^e  or  dis^ 

Rossa  Grande  Gold  Co.  L1870]  Wkly.  cretion  at  either  place,  and  mailing 

IZ  U9    cued  Roscoe  N.  P.   (17th  copy  addressed  to  tenant  at  his  r^  - 

JNotes  iiJ,  ^                         T3.„„tnn     ^  dence)  ;     Colorado,    Mills'    Ann.    St. 

Ed.)    1006;    ^^f-;-  f^;;^^'^  1891,       1977   (By  delivering  copy  to 

Hurl.    &  N.    518.     But    it    must    be  ^^^^^^  ^^  ^^^^^   ^^^^^^^^^  ^^   p^^^_ 

shown  to  have  been  ^^^^?^^-  J^^^^;  i,e^  or  leaving  copy  with  member  of 

V.  Jenkins,  129  Mo.  647,  31  S.  W.  9^b.  ^^^^^^,^  ^^^.^^  ^^^^^  ^^teen  years  of 

222  Papillon    v.    Brunton,    5    Hurl.  ^^^  residing  on  or  in  charge  of  prem- 
&  N.  518.  ises)  ;  District  of  Cohimhia  Code  1901, 

223  Hogg  V.  Brooks,  15  Q.  B.  Div.  ^  ^^23  ( £f  tenant  cannot  be  found,  by 
256.  delivery  to  person  of  proper  age  on 

224Famam  V.  Hohman,  90  111.  312;  ^^^     premises);     Idaho     Civ.     Code 

Simpson  v.  Masson,  11  Misc.  351,  32  ^901,    §§    2373,    2374    (same  as   Cali- 

N.  Y.  Supp.  136.    This  is  assumed  in  fornia) ;     niinois,    Hurd's    Rev.    St. 

practically  rll  the  ca-es,  the  notice  1905,  e.  80,  §  10  (By  delivering  copy 

being  but  rarely  served  by  an  officer,  to  tenant,  or  by  leaving  H  with  per- 


1460 


NOTICE  TO  QUIT. 


§203 


a  proper  person  cannot  be  found  on  whom  to  make  service,  the 
notice  shall  be  posted  in  some  conspicuous  place  on  the  prcm- 
ises.226  In  only  two  states  do  there  appear  to  be  any  provisions 
as  to  the  mode  of  service  on  the  landlord,  it  being  in  those  states 
provided  that  it  may  be  served  upon  any  one  who  at  the  time 
owns  the  premises,  in  whole  or  in  part,  or  the  agent  of  such  owner, 
or  according  to  the  common  law.^-'^ 
The  service  of  the  notice  to  quit  may  be  proven,  as  any  other 


son  above  age  of  twelve  residing  on 
or  in  possession  of  the  premises). 
The  tenant's  wife  is  such  person. 
Bell  V.  Bruhn,  30  111.  App.  300.  And 
see  Farnam  v.  Hohman,  90  111.  312; 
Indiana,  Burns'  Ann.  St.  1901,  §  7095 
(Notice  may  be  served  on  tenant,  or  if 
tenant  cannot  be  found,  by  delivery 
to  person  of  proper  age  and  discre- 
tion residing  on  the  premises,  hav- 
ing first  made  known  to  such  person 
the  contents).  The  notice  may  be 
served  on  the  tenant  off  the  prem- 
ises. Epstein  v.  Greer,  78  Ind.  348; 
Iowa  Code  1897,  §  2991  (If  tenant 
cannot  be  found,  notice  may  be 
given  to  any  subtenant  or  other  per- 
son in  possession) ;  Kansas  Gen.  St. 
1905,  §  4060  (If  tenant  cannot  be 
found,  by  delivery  to  person  over 
twelve  years  of  age  residing  on 
premises,  having  first  made  known 
to  such  person  the  contents,  or  by 
leaving  copy  at  tenant's  residence,  or 
by  posting  copy  at  tenant' s  resi- 
dence, or  by  posting  copy  on  prem- 
ises) ;  Montana  Rev.  Codes,  §§  4502, 
7272  (same  as  California).  New 
York  Real  Prop.  Law,  §  198  (By 
delivery  to  the  tenant  or  a  person  of 
suitable  age  and  discretion  residing 
upon  the  premises) ;  North  Dakota 
Rev.  Codes  1S05,  §  4783  (By  delivery 
to  the  tenant  or  some  person  of  dis- 
cr'i'tinn  residing  on  the  premises); 
South  Dakota  Rev.  Civ.  Code,  §  2G2 


(same  as  North  Dakota);  Yirginia 
Code  1904,  §  2785  (May  be  served 
upon  the  tenant,  or  upon  any  one 
holding  under  him  the  leased  prem- 
ises 01'  any  part  thereof) ;  West  Yir- 
ginia Code  1905,  §  3398  (same  as 
Virginia) ;  ^Visconsin  Rev.  St.  1898, 
§  2184  (By  delivery  to  tenant  or  to 
some  person  of  proper  age  residing 
on  the  premises). 

226  It  is  so  provided  in  effect  in 
the  statutes  enumerated  in  the  prev- 
ious note,  except  in  those  of  Vir- 
ginia and  West  Virginia.  In  Cali- 
fornia, Idaho  and  Montana  the  stat- 
ute provides  for  such  posting,  in 
case  the  tenant's  place  of  residence 
and  business  cannot  be  found,  or  a 
person  of  suitable  age  or  discretion 
cannot  be  found,  and  also  delivering 
a  copy  to  a  person  there  residing,  if 
such  person  can  be  found,  and  also 
sending  a  copy  through  the  mail  ad- 
dressed to  the  tenant  at  the  place 
where  the  property  is  situated. 

In  Illinois  it  was  held  that  a  no- 
tice by  posting  was  not  insufficient 
because  it  described  the  premises  as 
those  "now  occupied  by  you,"  this 
not  admitting  that  there  was  some- 
one in  possession,  so  as  to  preclude 
a  notice  by  posting.  Consolidated 
Coal  Co.  v.  Schaeier,  135  III.  210,  25 
N.  E.  788. 

22TYirniniri  Code  1904,  §  2785; 
West  Yirginia  Code  19C6,  §  3398. 


§  204  EFFECT  OF  NOTICE.  1461 

fact,  by  oral  evidence,22s  and  this  indeed  would  seem  ordijiarily 
to  be  the  only  method  of  proving  it,  since  the  affidavit  or  return  of 
the  person  serving  it  is  not  in  reference  to  the  performance  of 
an  official  duty,  even  when  the  service  is  in  the  particular  case 
made  by  an  official,  and  consequently  the  rule  against  hearsay 
evidence  applies.^^^  But  an  indorsement  upon  a  duplicate,  by  the 
person  serving  the  notice,  of  the  fact  and  time  of  service,  al- 
though not  ordinarily  admissible,  may  be  so  in  case  of  his  death, 
provided  it  was  made  by  him  in  the  ordinary  course  of  busi- 
ness,2^*  and  consequently  it  is  well  for  him  to  make  such  an  in- 
dorsement. 

§  204.    Effect  of  giving  of  notice. 

A  notice  to  quit,  once  given,  is  effectual  in  favor  of  and  as 
against  any  successors  in  interest  of  either  party,^^^  and,  as  be- 
fore stated,  a  notice  to  a  tenant  is  effectual  as  against  a  sub- 
tenant.231 

The  fact  that,  in  a  case  in  which  no  notice  to  quit  is  necessary, 
as  when  the  lease  is  for  a  certain  term,-32  or  when  there  is  no  valid 
lease, 2^^  the  landlord  or  owner  gives  a  notice  to  quit,  does  not 
conclude  him  as  to  the  character  of  the  holding. 

22?  Weeks    v.    Sly.    61    N.    H.    89;  ton  v.  Clough,  2  EJ.  &  Bl.  933,  where 

Cliung  Yow  v.. Hop  Chong,  11  Or.  220.  the    facts    did    not    bring    the    case 

See  ante,  at  notes  148-151.  within  the  principle. 

229  People  V.  Walsh,  13  Wkly.  Dig.  2.30  Doe  d.  Egremont  v.  Forwood,  3 

(N.  Y.)  440;  Posson  v.  Dean,  8  N.  Y.  Q.  B.  627;   Doe  d.  Higgs  v.  Terry,  4 

Civ.  Proc.  177  (semble) ;  Simpson  v.  Adol.    &    E.    274.     In    Bernstein    v. 

Mapson,  11  Misc.  351,  32  N.  Y.  Supp.  Koch,  52  Misc.  550,  102  N.  Y.  Supp. 

136;     Hollingsworth    v.     Snyder,     2  524,   the   decision  seems  to  be   that 

Iowa,  435.     But  in  Illinois  the  ptat-  the  fact  that  the  lessor  has   trans- 

ute  makes  the  return  of  an  officer  ferred  the  reversion  during  a   rent 

or  the  sworn  return  of  a  private  in-  period    does   not  enable   the   lessee, 

dividual  as  to  service  of  the  notice  as  against   the  transferee,   to  relin- 

prima   facie   evidence    of   the   facts  quish  possession  at  the  end  of  such 

therein  stated  (Rev.  St.  c.  80,  §  11).  period    without    having    given    the 

See   MoUer  v.   Barrett,   49   IH.  App.  statutory    notice,    implying    that    a 

519.     Whether  the  service  could  be  notice  to  the  lessor  would  be  effec- 

proven  by  an  ex  parte  aTi'^-ivit  was  tive  as  against  his  transferee, 

left  undecided  in  ^/eeks  v.  Sly,   61  231  See  ante,  at  notes  98,  99. 

N.  H.  §9.  232  Secor  v.  Pestana.  37  111.  525. 

220a  Doe  d.  Patteshall  v.  Turford,  3  233  Melley  v.  Casey,  99  Mass.  241. 
Bam.  &  Adol.  890.     Compare  Stapyl- 


1462  NOTICE  TO  QUIT.  §  205 

§  205.    Withdrawal  or  waiver  of  notice. 

It  has  in  England  been  decided  that  a  valid  notice  to  quit,  if 
once  given,  cannot  be  withdrawn  or  waived,  but  will  necessarily 
eanse  the  tenancy  to  cease  upon  the  expiration  of  the  notice ;  and 
that  an  attempted  withdrawal  or  waiver,  though  assented  to  by 
both  parties,  can  merely  make  the  holding  of  the  tenant,  if  con- 
tinued beyood  the  current  period,  a  new  tenancy,  and  not  a  con- 
tinuance of  the  old  one.-"^  That  such  withdrawal  or  waiver,  if 
after  the  expiration  of  the  date  of  expiration  of  the  notice,  that 
is,  the  end  of  the  current  period,  cannot  restore  the  tenancy  ter- 
minated by  the  notice,  and  can  only  create  a  new  tenancy,  is  evi- 
dent, but  the  view  that  the  notice  cannot  be  withdrawn  while  it 
is  still  running  is  open  to  considerable  question.  A  different  view 
has  been  strongly  asserted  in  Ireland,^^^  and  there  are  eases  in 
this  country  clearly  opposed  to  the  English  view.^ss  In  both  coun- 
tries there  are  numerouis  cases  in  which  the  possibility  of  such 
waiver  of  the  notice,  with  the  effect  of  leaving  the  former  ten- 
ancy unchanged,  has  been  assumed.^^^^  For  most  purposes,  the 
question  whether  the  continued  holding  of  the  tenant  is  under  the 
old  or  a  new  tenancy  is  immaterial. 

It  has  been  decided  in  England  that  a  party  who  has  given  a 
notice  to  quit  cannot  afterwards  withdraw  or  "waive"  such  no- 
tice without  the  assent  of  the  other  party  to  the  tenancy,  that  is, 
that  a  notice  once  given  operates  to  terminate  the  tenancy  at  the 
time  therein  specified  unless  both  parties  consent  that  it  shall 
not  so  operate.23'^  Presumably  the  courts  of  this  country  would 
take  a  like  view,  but  the  question  appears  never  to  have  been 

234Taylenr    v.    Wildin,    L.    R.    3  53  Am.  Dec.  228;  Supplee  v.  Timothy, 

Exch.  303.     In  Holme  v.  Bninskill,  3  124  Pa.   375,   Ifi  Atl.  864:    Brown  v. 

Q.  B.   Div.   495.  the   earlier  case  of  Montgomery,  21  Pa.  Super.  Ct.  262; 

Tayleur   v.    Wilden,   L.    R.    3   Exch.  Arcade  Inv.  Co.  v.  Gieriet,  99  Minn. 

303,   supra,   is  distinguished  on  the  277,  109  N.  W.  250. 

ground   that   in   the   later  case   the  ssca  See  cases   cited   in   the  notes 

tenant  did  not   continue  in  posses-  next   following. 

sion  aft^r  the  date  of  the  expiration  237  Jenner  v.  Clegg,  1  Moody  &  R. 

of  the  notice,  so  that  its  withdrawal  213;  AlPorrl  v.  Vickery,  1  Car.  &  M. 

did  not  create  a  new  tenancy.  280;  Williams  v.  Stiven.  9  Q.  B.  14; 

2^.1  Inchiquin  v.  Lyons,  20  L.  R.  Ir.  Doe  d.  Hertford  v.  Hunt,  1  Mees.  & 

474.  W.    692. 

23«  Whitney  v.  Swett,  22  N.  H.  10, 


205 


WITHDRAWAL  OR  WAIVER. 


1463 


presented.238  Such  a  requirement  of  the  assent  of  the  party  to 
whom  the  notice  was  given  does  not,  it  seems  clear,  require  that 
the  assent  be  expressed  by  words  rather  than  by  conduct. 

If  the  landlord  receives  money  from  the  tenant  as  for  rent 
accruing  after  the  expiration  of  a  notice  to  quit,  given  by  the 
latter,  there  is  a  waiver  of  the  notice.^s^  But  the  payment  and 
acceptance  of  money,  not  as  rent,  but  as  compensation  for  the  in- 
jury done  by  the  tenant  in  continuing  on  the  premises  as  a  tres- 
passer, would  not  involve  a  waiver,2^o  ^mj  {^  j^^s  been  held  that 
a  recovery  in  use  and  occupation  will  not  have  tliat  effect.^^i 

The  question  whether  a  mere  demand  for  r&nt,  accruing  after 
the  expiration  of  the  notice,  constitutes  a  waiver,  has  been  re- 
garded as  one  of  intention,  properly  for  the  jury.242  ^he  demand 
for,  or  receipt  of,  rent,  accruing  before  the  expiration  of  the  no- 
tice, cannot  be  regarded  as  a  waiver.^^s 

The  levy  of  a  distress  for  rent  falling  due  after  the  date  of  ex- 
piration of  the  notice  has  been  held  to  show  conclusively,  as 
against  the  landlord,  an  intention  on  his  part  to  withdraw  or 


238  There  is  a  dictum  to  that  effect 
in  Western  Union  Tel.  Co.  v.  Penn- 
sylvania R.,  120  Fed.   362. 

230  Goodright  v.  Cordwent,  6  Term 
R.  219;  Blyth  v.  Dennett,  13  C.  B. 
178;  Doe  d.  Ash  v.  Calvert,  2  Camp. 
387;  Keith,  Prowse  &  Co.  v.  National 
Tel.  Co.  [1894]  2  Ch.  147;  Den  d. 
Stedman  v.  Mcintosh,  27  N.  C.  (5 
Ired.  Law)  571,  44  Am.  Dec.  58;  Col- 
lins V.  Canty,  60  Mass.  (6  Cush.) 
415;  Prindle  v.  Anderson,  19  Wend. 
(N.  Y.)  391.  The  case  of  Doe  d. 
Cheny  v.  Batten,  1  Cowp.  243,  de- 
ciding that  the  payment  and  receipt 
of  rent  do  not  necessarily  involve  a 
waiver  of  the  notice,  but  that  it  is  a 
Questron  of  intention  for  the  jury, 
is  disapproved  in  Goodright  v.  Cord- 
went,  6  Term  R.  219,  and  is  not  in 
accord  with  the  cases  above  cited. 
It  is  followed,  however,  in  Pitzpat- 
rick  V.  Childs,  2  Brewst.   (Pa.)    365. 

Acceptance  of  rent  by  agent  au- 


thorized to  receive  rent  does  not  in- 
volve a  waiver  of  the  notice  if  he 
does  not  knov«r  of  the  notice  (Doe  d. 
Ash  V.  Calvert,  2  Camp.  387),  or  un- 
less he  has  authority  to  waive  the 
notice.  Pitzpatrick  v.  Childs,  2 
Brewst.  (Pa.)  365.  That  a  waiver 
by  an  unauthorized  agent  is  nuga- 
tory, see  Lucas  v.  Brooks,  85  U.  S. 
(18  Wall.)    436. 

2-to  Goodright  v.  Cordwent,  6  Term 
R.  220;  Zouch  v.  Willingale,  1  H.  BI. 
311. 

2*1  Den  d.  Stedman  v.  Mcintosh, 
27  N.  C.  (5  Ired.  Law)  571,  44  Am. 
Dec.  58. 

212  Blyth  V.  Dennett,  IS  C.  B.  178; 
Bant.io  V.  Clark,  88  N.  Y.  Supp.  135. 

2J  3  Conner  v.  Jones,  28  Cal.  59; 
Norris  v.  Morrill,  43  N.  H.  213;  Byrne 
V.  Morrison,  25  App.  D.  C.  72;  West- 
ern Union  Tel.  Co.  v.  Pennsylvania 
R.  Co.,  59  C.  C.  A.  113,  123  Fed.  33. 


1464  NOTICE  TO  QUIT.  §  205 

waive  the  iiotice,-^^  and  the  tenant's  assent  is  shown  by  his  sub- 
mission to  the  distress,24fi  he  having  the  right,  if  he  so  choose,  to 
contest  the  distress  proceeding  on  the  ground  that  the  tenancy 
was  terminated  before  the  rent  could  have  accrued.^^s 

The  landlord  may,  without  waiving  the  notice,  agree  with  the 
tenant  that  he  may  remain  on  the  premises  after  the  termination 
of  the  notiee,2^'  and  a  mere  delay  by  the  landlord,  after  giving  a 
notice  to  quit,  in  bringing  proceedings  to  recover  possession,  does 
not  involve  a  waiver  of  the  notice.^^^ 

The  giving  of  a  second  notice  is  regarded  as  a  waiver  of  a  prior 
notice,2^9  but  the  mere  making  of  a  subsequent  demand  for  the 
delivery  of  possession,  in  pursuance  of  a  previous  notice  to  quit, 
does  not  involve  a  waiver  of  such  notice,  it  being  rather  a  con- 
firmation thereof,2"0  and  the  fact  that  the  landlord  had  already 
brought  ejectment  has  been  regarded  as  sufficient  to  preclude  the 
inference  of  a  waiver  by  a  second  notice.^^i 

If  the  tenant,  having  given  notice  of  an  intentiooi  to  quit,  re- 
mains in  possession  after  the  time  named  in  the  notice,  he  is 
liable,  by  force  of  St.  11  Geo.  2,  c.  19,  §  18,  adopted  or  re-enacted 
in  a  number  of  states,  for  double  the  rental  value  of  the  prem- 
ises,252  and,  even  apart  from  such  statute,  he  would  ordinarily,  it 
seems,  be  liable  in  use  and  occupation  as  a  tenant  holding  over.^^^ 
Such  retention  of  possession  does  not  necessarily  operate  as  a 
waiver  or  withdrawal  of  the  notice,  so  as  to  effect  a  continuance 

2*4  Zouch  V.  Willingale,   1   H.   Bl.  the  holding  after  the  expiration  of 

311.  •  the  notice  was  hy  permission. 

245  Panton  v.  Jones,  3  Camp.  372.  249  Doe    d.    Brierly   v.    Palmer,    16 

246  Jenner  v.  Clegg,  1  Moody  &  R.  East,  53;  D'Arcy  v.  Martyn,  63  Mich. 
213;  Bl>-th  V.  Dennett,  13  C.  B.  178.  602,  30  N.  W.  194;  Dockrill  v.  Schenk, 

247  Babt-ock  v.  Albee,  54  Mass.  (13  37  111.  App.  44;  Morgan  v.  Powers,  83 
Mete.)    273.  Hun,  298,  31  N.  Y.  Supp.  954. 

248  Jackson  v.  Stafford,  2  Cow.  (N.  250  Moody  v.  Seaman,  46  Mich.  74, 
Y.)  547;  Boggs  V.  Black,  1  Bin.  (Pa.)  8  N.  W.  711;  Messenger  v.  Arm- 
333;  Whiteacre  v.  Symonds,  10  East,  strong,  1  Term  R.  53;  Doe  d.  Digby 
13.     In  Vance  v.  Vance,  5  Ir.  R.  C.  v.  Steel,  3  Camp.  115. 

L.  363,  it  was  held  to  be  a  question  251  Doe  d.  Williams  v.  Humphreys, 

for  the   jury   whether  there    was    a  2  Bast,  237;   Ewing  v.  O'Malley,  108 

tenancy  from  year  to  year,  the  notice  Mo.  App.  117,  82  S.  W.  1087. 

not   having   been    acted    on.    Here,  252  See  post,  §  213  b. 

hqwever,    there   was    evidence    that  253  See   post,    §    211.     But   merely 


§205 


WITHDRAWAL  OR  WAIVER. 


1465 


of  the  former  tenancy,  since  it  may  be  that  he  intends  to  hold 
over  otherwise  than  as  tenant  of  the  same  landlord,25^  and  a  for- 
tiori there  is  no  waiver  of  the  notice  if  such  retention  of  posses- 
sion is  merely  the  result  of  inadvertance.^^^  Such  retention  of 
possession  is,  however,  it  seems,  evidence  to  go  to  the  jury  upon 
the  question  whether  there  was  a  waiver  of  the  notice.^^^ 


leaving  ashes  on  the  premises  does    the  time  named  seems  to  be  regarded 


not  render  him  liable  in  use  and 
occupation.  Wilson  v.  Prescott,  62 
Me.  115. 

254  Jenner  v.  Clegg,  1  Moody  &  R. 
213.  In  Hunter  v.  Kircher,  8  S.  D. 
554,  67  N.  W.  621  the  fact  that  the 
tenant  remained  in  possession  after 


as    having    some    effect,    but    what 
effect  does  not  clearly  appear. 

255  Gray  v.  Bompas,  11  C.  B.    (N. 
S.)    520. 

256  Jones  v.  Shears,  4  Add.  &  E. 
832. 


CHAPTER  XXI. 

HOLDING  OVER  BY  TENANT. 

i  206.  Duty  to  relinquish  possession. 

207.  What  constitutes  holding  over. 

208.  Rights  of  tenant  wrongfully  holding  over. 

209.  Landlord's  option  as  to  new  tenancy. 

a.  The  rule  usually  adopted. 

b.  The  theory  of  the  rule. 

c.  Facts  justifying  exercise  of  option. 

d.  Facts  excluding  exercise  of  option. 

e.  Character  of  new  tenancy. 

210.  New  tenancy  by  agreement. 

a.  Agreement  express  or  implied. 

b.  Character  of  new  tenancy. 

c.  Terms  of  new  tenancy. 

211.  Liability  in  use  and  occupation. 

212.  Liability  as  tort  feasor. 

213.  Liability  for  double  rent  or  value. 

a.  After  notice  or  demand  by  landlord. 

b.  After  notice  by  tenant. 

214.  Cotenant  lessee  holding  over. 

215.  Proceeding  to  recover  possession. 

216.  Forcible  resumption  of  possession  by  landlord. 

a.  General  considerations. 

b.  Liability  for  entry  on  the  land. 

c.  Liability  for  injury  to  the  person. 

d.  Liability  for  removal  of  chattels. 

217.  Rights  of  landlord  after  resuming  possession. 

§  206.    Duty  to  relinquish  possession. 

It  is  the  duty  of  a  tenant  for  years,  unless  he  obtains  a  renewal 
of  the  lease,  to  relinquish  possession  of  the  premises  at  the  end 
of  the  term,  and  his  failure  so  to  do  is  not  excused  by  the  fact 
that  the  landlord  has  not  demanded  the  possession  or  manifested 


§206 


DUTY  TO  RELINQUISH  POSSESSION. 


1467 


a  readiness  to  receive  it.^  In  one  state  only,  it  appears,  has  a 
different  view  been  asserted,  it  being  there  said  that  the  tenant 
is  imder  an  obligation  not  to  leave  unoccupied  a  dwelling  leased 
to  him.2  The  duty  to  relinquish  possession  applies  to  the  whole 
premises,  and  if  the  tenant  fails  to  relinquish  any  part  he  is  re- 
garded as  "holding  over"  as  to  all.^ 

The  tenant  has  no  right  to  retain  possession  for  the  sake  of 
cleaning  the  premises,^  nor,  it  seems,  for  the  sake  of  removing 
improvements  in  accordance  with  a  stipulation  giving  him  such 
right  of  removal.5  But  not  infrequently  he  is  allowed,  by  the 
express  provisions  of  the  lease,  to  retain  possession  until  the  land- 
lord has  paid  him  for  improvements  made  by  him.^  And  occa- 
sionally a  provision  looking  towards  the  possible  purchase  of  the 
premises  by  the  tenant  may  have  the  effect  of  enabling  the  latter 
to  retain  possession  pending  the  settlement  of  the  price  to  be 
paid.''' 

The  fact  that  the  instrument  of  lease  provides  that  rent  shall 
be  paid  by  the  lessee  in  case  he  holds  over  does  not  give  him  any 
right  to  hold  over.s    Nor  can  the  tenant  justify  his  failure  to  re- 


1  Schilling  v.  Holmes,  23  Cal.  227, 
83  Am.  Dec.  Ill;  Werner  v.  Foot- 
man, 54  Ga.  128;  Poppers  v.  Mea- 
gher, 148  111.  192,  35  N.  E.  805;  Ex- 
celsior Steam  Power  Co.  v.  Hal- 
stead,  5  App.  Div.  124,  39  N.  Y.  Supp. 
43;  Cairns  v.  Llewellj'n,  2  Pa.  Super. 
Ct.  599.  Compare  Mitchell  v.  Blos- 
som, 24  Mo.  App.  48. 

2  Kyle  V.  Proctor,  70  Ky.  (7  Bush) 
493;  Bowling  v.  Ewing,  10  Ky.  (3 
A.  K.  Marsh.)  616.  But  compare 
Ky.  St.  1903,  §§  2295,  2296,  provid- 
ing that  if  a  tenancy  is  to  expire  on 
a  certain  day,  the  tenant  shall 
"abandon"  the  premises  on  that  day. 
The  cases  above  cited  involved  cov- 
enants to  return  the  premises  at  the 
end  of  the  term. 

sBallance  v.  City  of  Peoria,  180 
111.  29,  54  N.  E.  428;  Bless  v.  Jen- 
kins, 129  Mo.  647,  31  S.  W.  938;  Cav- 
anaugh  v.  Clinch,  88  Ga.  610,  15  S.  E. 
673. 


That  the  prosecution  by  the  land- 
lord of  a  suit  to  invalidate  the  lease, 
which  suit  did  not  prevent  the  les- 
see from  exercising  his  rights,  did 
not  give  any  right  to  the  latter  to 
compensation  by  further  extension 
of  his  holding,  see  Lanyon  Zinc  Co. 
v.  Burtiss,  72  Kan.  441,  83  Pac.  989, 
115   Am.   St.   Rep.   219. 

4  Byxbee  v.  Blake,  74  Conn.  607, 
51  Atl.  535,  57  L.  R.  A.  222. 

5  See  post,  §  243  e. 

A  stipulation  giving  the  lessee  the 
right  to  remove  improvements  does 
not  extend  the  right  of  possession 
beyond  the  term,  but,  at  most,  gives 
a  right  merely  to  enter  within  a 
reasonable  time  to  remove  the  im- 
provements. I.  X.  L.  Furniture  & 
Carpet  Installment  House  v.  Berets, 
32  Utah,  454,  91  Pac.  279. 

6  See  post,  §  271  k. 

7  See  post,  §  265,  at  note  77. 

8  Edwards   v.    Hale,    91    MaBS.    (9 


2468  HOLDING  OVER  BY  TENANT.  §  207 

linquish  possession  by  showing  tliat  lie  had  permission  to  remain 
from  an  intending  lessee  of  the  reversion,  the  negotiations  be- 
tween whom  and  the  landlord,  however,  did  not  result  in  the  mak- 
ing of  a  lease.^ 

It  has  been  decided  that,  when  the  day  of  the  termination  of 
the  tenancy  falls  on  Sunday,  the  tenant  need  not  relinquish  pos- 
session till  the  next  day,i«  applying  the  rule  which  is  ordinarily 
adopted  that,  if  one  has  a  certain  period  in  which  to  do  a  thing, 
and  the  last  day  of  the  period  is  Sunday,  he  has  until  the  next 
day  for  performance.^^ 

In  three  states  the  statute  provides  that  if,  in  the  case  of  agri- 
cultural land,  the  tenant  holds  over  sixty  days  without  any  de- 
mand for  possession  being  made  upon  him,  he  may  hold  for  an- 
other year,  as  by  permission  of  the  landlord.12  In  another  state 
there  is  a  somewhat  similar  provision,  that  if  proceedings  to 
expel  the  tenant  are  not  brought  within  a  time  named,  he  may 
hold  over  for  another  term  of  a  period  named  in  the  statute.i^ 

§  207.    What  constitutes  holding  over. 

A  tenant  cannot  be  regarded  as  holding  over  merely  because 
he  leaves  a  few  abandoned  articles  on  the  premises,!"*  and  in  one 

Allen)     462-     Compare     Pickett     v.  than   a  year,   that  the   tenant  may 

Bartlett,  107  N.  Y.  277,  14  N.  E.  301.  hold    sixty    days    longer    if    no    pro- 

9  Poppers  V.  Meagher,  148  111.  192,  ceeding  is  brought  within  thirty 
35  N    E.  805.  days.     The  payment  of  one  month's 

10  Frost  V.  Akron  Iron  Co.,  1  App.  rent  is  said  to  be  "persuasive  evi- 
Div.  449   37  N.  Y.  Supp.  374.  dence"  of  the  existence  of  a  new  con- 

11  See  cases  cited  28  Am.  &  Eng.  tract.  Unger  v.  Bamberger,  85  Ky. 
Enc.  Law    (2d  Ed.)    224.  11,  2  S.W.  498,  7  Am.  St.  Rep.  571. 

12  CaUfornia  Code  Civ.  Proc.  §  1161  But  in  another  case  (Irvine  v.  Scott, 
(2) ;  Utah  Comp.  Laws  1907,  §  3576;  85  Ky.  260,  3  S.  W.  163),  it  was  said 
Washington,  Ball.  Ann.  Codes  &  St.  that  the  payment  of  two  months' 
5  5528.  See  Snyder  v.  Harding,  38  rent  would  not  be  sufficient  to  defeat 
Wash.  666,  80  Pac.  789;  Mounts  v.  the  landlord's  remedy  for  posses- 
Goranson,  29  Wash.  261,  69  Pac.  740.  sion,  though  there  it  was  held  that 

13  In  Kentucky  the  statute  (St.  the  landlord  was  estopped  to  oust 
1903,  §  2295)  provides  that  a  tenant  the  tenant  after  he  had  stood  by  and 
for  a  year  or  more,  holding  over  permitted  him  to  take  in  on  the 
without  any  contract,  can  hold  for  rented  premises  (a  stable)  sufficient 
one  year  longer  if  no  proceedings  are  provender  to  last  for  a  year, 
brought  to  eject  him  within  ninety  14  Gibbons  v.  Dayton,  4  Hun  (N. 
days  The  next  section  contains  a  Y.)  451:  Excelsior  Steam  Power  Co. 
provision,  as  to  a  tenan-y  for  loss  v.  Halstead,  5  App.  Div.  124,  39  N. 


§  207 


WHAT  CONSTITUTES. 


1469 


state  it  appears  to  have  been  decided  that  the  leaving  of  articles 
not  abandoned  by  liim  does  not  have  that  effect.^^  The  reten- 
tion by  the  tenant  of  the  keys  of  the  building  on  the  land  leased 
has  been  regarded  as  involving  a  holding  over  by  him/*^  but  a 
different  view  has  been  asserted  when  the  failure  to  return  the 
keys  was  accidental. i" 

For  the  purpose  of  imposing  liability  on  a  tenant,  a  retention 
of  possession  by  his  tenant,  a  subtenant,  is  ordinarily  regarded 
as  a  holding  over  by  the  tenant  himself,  although  without  the  lat- 
ter's  complicity  or  consent.^  ^  This  is  not  the  case,  however,  if 
the  retention  of  possession  by  the  subtenant  is  by  arrangement 
with  the  head  landlord  or  a  subsequent  lessee  of  the  latter,  enti- 
tled to  possession  on  the  end  of  the  original  term.^^ 

That  one  of  two  persons  to  whom  the  lease  was  made  holds  over 
with  the  assent  of  the  other  has  been  regarded  as  a  holding  over 
by  both,2o  ]j^+  ^j^jg  jg  j^qi  ^j^g  cage  if  the  retentioji  of  possession  by 
one  is  without  the  other's  assent.^i 


Y.  Supp.  43;  Beeston  v.  Yale,  75  App. 
Div.  388,  78  N.  Y.   Supp.  158. 

15  Frost  V.  Akron  Iron  Co.,  1  App. 
Div.  449,  37  N.  Y.  Supp.  374.  See 
cases  cited  post,  note  37.  In  Nisbet 
V.  Hall,  28  Nova  Scotia,  80,  the  fact 
that  the  moving  was  not  completed 
on  the  last  day  of  the  term  was  not 
regarded  as  involving  a  holding 
over. 

That  one  who  leased  land  fronting 
on  the  water  for  the  purpose  of  stor- 
ing logs,  having  removed  all  his  logs 
at  the  end  of  the  term,  retained  his 
boom  in  front  of  the  land,  in  order  to 
prevent  logs  from  coming  upon  the 
land,  was  held  not  to  involve  a  re- 
tention of  the  possession  of  the 
land.  Thomas  v.  Frost,  29  Mich. 
336. 

16  See  Byxbee  v.  Blake,  74  Conn. 
607,  51  Atl.  535,  57  L.  R.  A.  222; 
Burnham  v.  Martin,  90  111.  438. 
Contra,  Steen  v.  Scheel,  46  Neb.  252, 
64  N.  W.  957. 

17  Gray  v.  Bompas,  11  C.  B.  (N.  S.) 


520;  Brennan  v.  New  York,  80  App. 
Div.  251,  80  N.  Y.  Supp.  247. 

18  Harding  v.  Crethorn,  1  Esp.  57; 
Henderson  v.  Squire,  L.  R.  4  Q.  B. 
170;  Schilling  v.  Holmes,  23  Cal.  227, 
83  Am.  Dec.  Ill;  Bacon  v.  Brown,  9 
Conn.  334,  23  Am.  Dec.  358;  Berkow- 
sky  V.  Cahill,  72  111.  App.  101;  Ven- 
tura Hotel  Co.  V.  Pabst  Brew.  Co., 
33  Ky.  Law  Rep.  149,  109  S.  W.  354; 
Brewer  v.  Knapp,  18  Mass.  (1  Pick.) 
334;  Bless  v.  Jenkins,  129  Mo.  647, 
31  S.  W.  938;  Lubetkin  v.  Elias 
Brew.  Co.,  21  Abb.  N.  C.  304,  4  N. 
Y.  Supp.  195;  Sullivan  v.  George 
Ringler  &  Co.,  171  N.  Y.  693,  64  N. 
E.  1126;  Morgenthau  v.  Beaton,  88 
N.  Y.  Supp.  359;  Wilson  v.  Cincin- 
nati, 10  Qhio  Dec.  123;  Campau  v. 
Mitchell,  103  Mich.  617,  67  N.  W.  890, 
27  L.  R.  A.  211. 

19  Kennicott  v.  Sherwood,  22  III. 
190. 

20  Christy  v.  Tancred,  9  Mees.  & 
W.  438. 

21  Draper  v.  Crofts,  15  Mees.  &  T^ . 
166. 


1470  HOLDING  OVER  BY  TENANT.  §  208 

There  have  been  a  considerable  number  of  decisions  upon  the 
question  of  what  constitutes  a  holding  over  for  the  purpose  of 
enabling  the  landlord  to  hold  the  tenant  liable  as  under  a  new 
tenancy,  even  though  the  tenant  does  not  intend  such  a  new  ten- 
ancy.   These  decisions  will  be  subseque.ntly  referred  to.-^*" 

§  208.     Rights  of  tenant  wrongfully  holding  over. 

A  tenant  holding  over  the  term  of  his  lease  without  the  con- 
sent, either  express  or  implied,  oi  his  landlord,  is,  as  we  have  be- 
fore stated,  a  tenant  at  sufferance  merely .22  Occasional  state- 
mejits  that  he  is  a  tenant  at  will  when  thus  holding  over  are  in- 
correct.^^ 

The  tenant  thus  holding  over  without  the  consent  of  the  land- 
lord has,  as  stated  elsewhere,  in  some  jurisdictions,  a  right  to 
demand  that  force  shall  not  be  used  to  eject  him,2^  and  he  can- 
not be  made  liable  in  trespass  until  the  landlord  has  entered  on 
the  premises.25  In  other  respects  he  has  no  greater  rights  than 
a  trespasser,26  and  he  cannot  assert  rights  under  the  covenants 
of  the  expired  lease. ^^ 

§  209.     Landlord's  option  as  to  new  tenancy. 

a.  The  rule  usually  adopted.  By  the  decided  weight  of  au- 
thority in  this  country,  one  holding  over  may  be  held  liable  as  a 
tenant  for  a  further  period,  without  reference  to  his  actual 
wishes  on  the  subject.  As  it  is  frequently  expressed,  the  landlord 
has  the  option  to  treat  him  as  a  tenant  for  a  further  term  or  as 
a  trespasser.  It  is  said,  i.n  what  may  be  regarded  as  the  leading 
case  supporting  this  view:28'29  ''When  a  tenant  under  a  demise 
for  a  year  or  more  holds  over  after  the  end  of  his  term,  without 
any  new  agreement  with  the  landlord,  he  may  be  treated  as  a  ten- 
ant from  year  to  year,  and  in  all  other  respects  as  holding  upon 

21a  See  post,  §  209  c.  27  See   Ives  v.  Williams,  50  Mich. 

22  See  ante,  5  15.  lOO,  15  N.  W.  33. 

23  That  he  is  not  a  tenant  at  will,  2s,  2.9  Conway  v.  Starkweather,  1 
Bee  Knhn  v.  Smith,  125  Cal.  615,  58  Denio  (N.  Y.)  113. 

Pac.  204,  73  Am.  St.  Rep.  79;  Ferine  The  landlord  only,  and  not  a  les- 

V.  Teagne,  66  Cal.  446,  6  Pac.  84.  see  in  reversion,  has  the  right  to  as- 

24  See  post,  §  216.  sert  this  doctrine  as  against  an  over- 
2fe  See  ante,  §   15  a,   at  notes  559-  holding  tenant.     United   Merchants' 

567.  Realty  &  Imp.  Co.  v.  Roth,  122  App. 

26  See  ante,  §  15  c  Dlv.  628,  107  N.  Y.  Supp.  511. 


.  209  LANDLORD'S  OPTION,  1471 

the  terms  of  the  original  lease.  The  landlord  has  an  election  to 
treat  him  either  as  a  trespasser,  or  as  a  tenant.  He  will  be  a  tres- 
passer if  the  landlord  brings  ejectment,  or  resorts  to  summary 
proceedings  under  the  statute  to  recover  the  possession.  He  will 
be  a  tenant  if  the  landlord  either  receives  or  distrains  for  rent  ac- 
cruing after  the  end  of  the  original  term.  *  *  *  The  tenant  ha'^. 
no  such  election  as  that  which  belongs  to  the  landlord.  If  he  holds 
over,  though  for  a  very  short  period,  without  any  unequivocal 
act  at  the  time  to  give  his  holding  the  character  of  a  trespass,  he 
is  not  afterwards  at  liberty  to  deny  that  he  is  in  as  a  tenant,  if 
the  landlord  chooses  to  hold  him  to  that  relation. 

lai  England,  and  in  one,  if  not  more,  of  the  states  of  this  country, 
the  courts  have  not  recognized  an  option  in  the  landlord  thus  to 
hold  the  tenant  for  another  period  merely  because  he  wrongfully 
retains  possession  during  a  part  of  that  period,3o  they  applying, 
in  this  case  as  in  others,  the  rule  that  a  tenancy  can  be  created 
only  by  the  consent  of  the  parties  thereto.  A  modern  English 
case,  however,  approximates  somewhat  in  result,  it  would  seem,  to 
the  ordinary  American  rule,  it  being  held  that,  the  landlord  hav- 
ing demanded  rent  of  the  overholding  tenant,  the  latter 's  failure 
to  reply  to  such  demand,  combined  with  his  continued  retention 
of  possession,  showed  a  consent  on  his  part  to  the  renewal  of  the 
former  tenancy .^^ 

It  is  somewhat  surprising  that  the  courts  of  this  country,  which 
have  ordinarily  shown  a  desire  to  mould  the  law  in  favor  of  the 
tenant  rather  than  the  laadlord,  should  have  originated  and  gen- 
erally adopted  a  rule,  the  tendency  of  which  is,  in  many  cases, 
to  operate  with  considerable  severity  upon  a  tenant  who  is  dis- 

30  See  Ibbs  v.  Richardson,  9  Adol.  holding  over  by  any  lessee  shall  be 

&  E.   849;    Jones  v.  Shears,  4  Adol.  evidence  of  a  new  lease  would  seem 

&  E.  832;    Waring  v.  King,  8  Mees.  &  to  preclude  the  adoption  of  the  ord- 

W.    571;    Nisbet    v.    Hall,    28    Nova  inary    American    doctrine     in    that 

Scotia.  80;  Kendall  v.  Moore,  30  Me.  state.     See    Miller    v.    Lampson,    66 

327;    Edwards  v.  Hale.  91  Mass.    (9  Conn.  432,  34  Atl.  79.     But  compare 

Allen)   4G2;   Delano  v.  Montague,  58  Byxbee  v.   Blake,   74   Conn.   607,   51 

Mass.     (4    Cush.)     42;     Emmons    v.  Atl.   53F5,  57  L.  R.  A.  222.     And  see 

Scudder,    115    Mass.    367.     Compare  the  reference  to  the  Wyoming  stat- 

Dimock  v.  Van  Bergen,  94  Mass.  (12  ute.  post,  note  72. 

Allen)    5f)l.            '  ^^  Dougal    v.    McCarthy    [1893]    1 

The  provision  of  the  Connecticut  Q.  B.  736. 
statute    (Gen.   St.    §   4043)    that  no 


2472  HOLDING  OVER  BY  TENANT.  §  209 

posed  promptly  to  relinquish  possession  but  is  accidentally  pre- 
vented from  so  doing.  The  purpose  and  effect  of  the  rule  ap- 
pear to  be  to  impose  a  penalty  upon  the  tenant  wrongfully  hold- 
ing over,  and  this  penalty  it  adjusts  without  reference  to  the  act- 
ual wrong  inflicted  upon  the  landlord,  as  measured  by  the  period 
of  the  holding  over,  or  to  the  culpability  of  the  tenant. 

b.  The  theory  of  the  rule.  It  has  been  suggested  that  this  op- 
tion in  the  landlord  is  to  be  regarded  as  based  on  the  theory  that 
the  tenant  holding  over  presumably  intends  to  hold  for  an- 
other term  or  period,  and  that  he  cannot  overthrow  this  presump- 
tion by  asserting,  to  the  disadvantage  of  the  landlord,  that  he  is 
holding  as  a  wrongdoer.32  There  seems,  however,  no  advantage 
iu  introducing  such  a  theory,  and  it  is  more  satisfactory  to  regard 
this  as  ''one  among  the  cases  where  a  person  may  be  charged, 
as  upon  a  contract,  without  his  consent,  and  contrary  to  his  in- 
tention. "^-^^  In  other  words,  the  tenant  is  liable  for  further  rent 
upon  the  principle,  not  of  contract,  but  of  quasi  contract.  That 
this  is  the  character  of  the  liability  plainly  appears  from  the  fact 
that  it  exists  in  spite  of  any  statements  by  the  tenant  evidencing 
a  contrary  intention.^^ 

32  Conway  v.  Starkweather,  1  Wierengo's  Estate,  113  Mich.  151,  71 
Denio  (N.  Y.)  113.  N.    W.    489,    67    Am.    St.    Rep.    461; 

33  Clinton  Wire  Cloth  Co.  v.  Gard-  Bradley  v.  Slater,  50  Neb.  682,  70 
ner,  99  111.  151.  In  Herter  v.  Mul-  N.  W.  258;  Smith  v.  Bell,  44  Minn, 
len,  159  N.  Y.  28,  53  N.  E.  700,  it  is  524,  47  N.  W.  263;  Haynes  v.  Aid- 
said,  per  Martin'  J.,  "The  basis  of  rich,  133  N.  Y.  287,  31  N.  E.  94,  28 
this  liability  is  often  said  to  be  an  Am.  St.  Rep.  636;  Graham  v.  Demp- 
implied  agreement  upon  the  part  of  sey,  169  Pa.  460,  32  Atl.  408;  Cava- 
the  tenant  to  hold  for  another  year,  naugh  v.  Clinch,  88  Ga.  610,  15  S. 
While  I  doubt,  as  I  always  have,  the  E.  673. 

propriety    of    calling    this    class    of        In    one   case  it  has  been   decided 

obligations    implied    contracts,    but  that   this   rule  will   not  be   applied 

think  they  are  to  be  regarded  as  the  against  a  municipal  corporation  for 

duties  which  the  law  imposes,  yet,  the  reason  that  no  contract  will  be 

whether    they    be    denominated    im-  implied   against  such  a  body.     San 

plied  contracts  or  duties  created  by  Antonio  v.  French,  80   Tex.   575,  16 

law,  in  either  case  the  right  arises  S.  W.  440,  26  Am.  St.  Rep.  763.     This 

upon  an  implication  of  law,  and  in  view  would  seem  to  be  based  on  the 

no  sense  upon  an  express  or  abso-  theory  that  the  tenant's  liabiliiy  is 

lute  contract."  a  strictly  contractual  one.     That  a 

34  Schuyler  v.  Smith,  51  N.  Y.  309,  -mnnicipality  may  be  made  liable  in 

10  Am.  Rep.  609;  Wolffe  v.  Wolff,  69  quasi  contract,  see  1  Abbott,  Munic- 

Ala.  549,  44  Am.  Rep.  526;  Mason  v.  jpal  Corporations,  p.  580. 


209 


LANDLORD'S  OPTION. 


1473 


e.  Facts  justifying  exercise  of  option.  A  question  has  arispn 
in  a  number  of  eases  as  to  what  constitutes  a  ''holding  over"  by 
the  tenant,  so  as  to  bring  him  within  this  rule.  The  cases  are  gen- 
erally to  the  effect  that  the  mere  fact  that  the  holding  over  was 
of  but  short  duration  does  not  exclude  the  application  of  the 
rule,35  nor  does  the  fact  that  the  tenant  was  engaged  in  moving 
at  the  expiration  of  the  term  and  continued  so  doing  without  in- 
termission, and  completed  his  removal  within  a  few  days,  have 
such  an  effect.^*^  The  action  of  the  tenant  in  allowing  all  the  per- 
sonal property  used  on  the  premises  during  the  term  to  remain 
there  till  after  its  expiration  ordinarily  involves  a  holding  overj^^ 


35  Conway  v.  Starkweather,  1 
Denio  (N.  Y.)  113  (fourteen  days); 
Schuyler  v.  Smith,  51  N.  Y.  3C9,  10 
Am.  Rep.  G09  (twenty-one  days); 
Wolffe  V.  Wolff,  69  Ala.  549  (ten 
days);  Clinton  Wire  Cloth  Co.  v. 
Gardner,  99  111.  151  (eleven  days); 
Oussani  v.  Thompson,  19  Misc.  524, 
77  N.  Y.  St.  Rep.  1061,  43  N.  Y.  Supp. 
1061  (one  day) ;  Shanahan  v.  Shana- 
han,  55  N.  Y.  Super.  Ct.  (23  Jones  & 
S.)  339,  14  N.  Y.  St.  Rep.  732  (two 
days) ;  Sullivan  v.  George  Ringler 
&  Co.,  171  N.  Y.  693,  64  N.  E.  1126 
(five  days).  But  in  Ketcham  v. 
Ochs,  34  Misc.  470,  70  N.  Y.  Supp. 
268;  Id.,  74  App.  Div.  626,  77  N.  Y. 
Supp.  1130,  it  was  held  that  holding 
over  till  the  afternoon  of  the  day 
after  that  on  which  the  term  came 
to  an  end  did  not  bring  the  case 
within   the  rule. 

36  Shanahan  v.  Shanahan,  55  N. 
Y.  Super  Ct.  (23  Jones  &  S.)  339,  14 
N.  Y.  St.  Rep.  732.  So  in  Oussani  v. 
Thompson,  19  Misc.  524,  77  N.  Y.  St. 
Rep.  lOGl,  43  N.  Y.  Supp.  1061,  where 
the  tenancy  expired  October  1,  and 
the  tenant  commenced  to  move  on 
that  day  but  did  not  finish  moving 
till  5  o'clock  in  the  afternoon  of  the 
next  day,  the  tenant  was  held  liable 
for   another  term.     But  see   to   the 


contrary,  Ketcham  v.  Ochs,  34  Misc. 
470,  70  N.  Y.  Supp.  26S. 

37  Vosburgh  v.  Corn,  23  App.  Div. 
147,  48  N.  Y.  Supp.  598.     In  McMann 
V.  Bloomer,  107  N.  Y.  Supp.  882,  it 
was  held  that  the  action  of  the  ten- 
ant in  leaving  some  of  his  furniture 
on  the  premises  for  about  a  week,  by 
the    permission    of    the   janitor,    in- 
volved a   holding   over,   the   janitor 
having  no  authority   to  grant  such 
permission.     And    in    Fitzgerald    v. 
St.  George,  110  N.  Y.  Supp.  971,  leav- 
ing, for  fourteen  days,  bales  of  pa- 
per, empty  cases  and  shelving,  was 
regarded  as  constituting  a  holding 
over.     But    where   the   janitress    of 
the  apartment  told  the  tenant  that 
he  might  leave  a  piano  and  crib  on 
the  premises,  and  it  was  customary 
to  leave  articles  until  they  could  be 
conveniently    removed,     there    was 
held  to  be  no  holding  over  within 
the  rule  (Smith  v.  Maxfield,  9  Misc. 
42,  59  N.  Y.   St.  Rep.   669,  29   N.  Y. 
Supp.  63),  and  it  was  even  held  that 
there    was    no    holding   over    where 
articles  mortgaged  were  left,  to  be 
removed  by  the  mortgagee,  and  he 
failed    to    remove    them    for    fifteen 
days.     Ketcham    v.    Ochs,    34    Misc. 
470,  70  N.  Y.  Supp.  268;   Id.,  74  App. 
Div.  626,  77  N.  Y.  Supp.  1130. 


L.  and  Ten.  93. 


1474 


HOLDING  OVER  BY  TENANT. 


209 


but  the  leaving  of  mere  rubbish  on  the  premises  does  not.^^  In 
one  state  the  question  whether  there  was  a  holding  over  has  been 
quite  frequently  regarded  as  one  for  the  jury,  particularly  in 
cases  in  which  some  of  the  tenant's  chattels,  though  not  all,  re- 
mained on  the  premises  after  the  end  of  the  term.^^ 

There  is  a  holding  over  by  the  tenant  within  the  rule,  though 


In  Cavanaugh  v.  Clinch,  88  Ga. 
610,  15  S.  E.  673,  it  was  held  that 
there  was  a  holding  over  within  the 
rule  when  the  tenant  retained  pos- 
session of  part  of  the  premises  for 
two  weeks  in  order  to  store  articles 
pending  their  distribution  to  his 
customers. 

38  Gibbons  v.  Dayton,  4  Hun  (N. 
Y.)  451;  Rohrbach  v.  Crossett,  46  N. 
Y.  St.  Rep.  426,  19  N.  Y.  Supp.  450. 
And  see  Wilson  v.  Prescott,  62  Me. 
115,  where  this  was  held  not  a  con- 
tinued use  and  occupation  waiving 
a  notice  by  the  tenant  terminating 
a  tenancy  at  will. 

30  In  Vosburgh  v.  Corn,  23  App. 
Div.  147,  48  N.  Y.  Supp.  598,  Hatch, 
J.,  says:  "We  do  not  question  but 
that  a  case  of  holding  over  may  be 
so  doubtful  that,  determination  of  it 
may  not  be  made  as  matter  of  law, 
as  where  the  tenant  has  left  upon 
the  premises  fixtures  and  small  arti- 
cles of  little  value  which  he  Intends 
to  abandon,  or  where  the  removal  of 
the  property  has  been  practically  ac- 
complished. Such  are  the  cases  of 
Rorbach  v.  Crossett,  46  N.  Y.  St.  Rep. 
426,  19  N.  Y.  Supp.  450,  where  the 
property  left  was  fixtures  and  worth- 
less articles,  and  the  keys  were  sur- 
rendered and  accepted  by  the  land- 
lord; McCabe  v.  Evers,  30  N.  Y.  St. 
Rep.  833,  9  N.  Y.  Supp.  541,  where  a 
stove  and  some  rubbish  were  left, 
and  the  keys  were  tendered  the  day 
following  the  expiration  of  the 
lease;    Manly  v.  Clemens,  39  N.   Y. 


St.  Rep.  199,  14  N.  Y.  Supp.  366, 
where  the  landlord  refused  to  renew 
the  lease,  and  the  tenant  began  mov- 
ing out  and  continued  to  midnight 
of  that  day,  when  he  had  removed 
every  thing  except  a  desk  and  safe, 
which  he  removed  the  next  day." 
So  it  was  held  to  be  a  question  for 
the  jury  where  the  tenant  did  not 
remove  all  his  machinery,  which 
was  very  heavy,  for  over  three 
weeks,  owing  to  delays  caused  by  a 
previous  fire  and  negotiations  for  a 
new  lease  (Smith  v.  Allt,  4  Abb.  N. 
C.  [N.  Y.]  205,  7  Daly,  492);  and 
where  the  tenant,  before  the  end  of 
the  term,  removed  everything  ex- 
cept some  broken  boards  and  de- 
layed doing  this  because  the  last  day 
of  the  term  was  a  holiday,  and  there 
was  a  procession  the  next  day 
(Hammond  v.  Eckhardt  16  Daly,  113, 
30  N.  Y.  St.  Rep.  856,  9  N.  Y.  Supp. 
508) ;  and  where  there  was  evidence 
that  the  tenant,  in  an  interview 
with  the  landlord's  agent,  gave  up 
the  key,  but  in  the  same  interview 
was  given  permission  to  re-enter  in 
order  to  clean  up  and  remove  a  few 
remaining  articles  (Frost  v.  Akron 
Iron  Co.,  1  App.  Div.  449,  72  N.  Y. 
St.  Rep.  478,  37  N.  Y.  Supp.  374); 
and  where  the  tenant  left  a  press  on 
the  premises  and  thereafter  two  of 
his  employes  entered  and  used  it 
without  his  knowledge  (Excelsior 
Steam  Power  Co.  v.  Halstead,  5  App. 
Div.  124,  39  N.  Y.   Supp.   43). 


209 


LANDLORD'S  OPTION. 


1475 


he  himself  is  not  in  possession,  if  his  subtenant  has  possession 
and  fails  to  relinquish  it  before  the  end  of  the  original  term,  this 
being  in  effect  a  holding  over  by  the  tenant,  as  being  a  result  of 
his  putti-ng  another  in  possession.^o  And  it  seems  that,  on  the 
same  theory,  a  holding  over  by  one  to  whom  the  tenant  has  as- 
signed his  term  might  likewise  be  regarded  as  a  holding  over  by 
the  assignor,-*!  though  the  courts  might  hesitate  to  apply  the  rule 
in  such  a  case,  especially  if  the  landlord  had  recognized  the  as- 
signee as  his  tenant  by  accepting  rent,  or  similar  acts.  And  the 
view  that  a  holding  over  by  any  person  to  whom  the  tenant  thus 
transfers  his  right  of  possession,  whether  by  sublease  or  other- 
wise, involves  a  holding  over  by  the  tenant  within  the  rule,  is 
not  m  harmony  with  occasional  decisions  that  in  the  case  of  a 
lease  to  a  firm,  if  all  but  one  of  the  partners  withdraw  during  the 
term,  giving  place  to  others,  a  holding  over  by  the  new  partner- 
ship does  not  bind  those  who  retired.^2 
d.    Facts  excluding  exercise  of  option.    The  option  on  the  part 


40  Bacon  v.  Brown,  9  Conn.  334; 
Hall  Steam  Power  Co.  v.  Campbell 
Print.  Press  &  Mfg.  Co.,  5  Misc.  264, 
25  N.  Y.  Supp.  106;  Manheim  v. 
Seitz,  21  App.  Div.  16,  47  N.  Y.  Supp. 
282;  Lubetkin  v.  Henry  Ellas  Brew. 
Co.,  21  Abb.  N.  C.  304,  4  N.  Y.  Supp. 
195;  Sullivan  v.  George  Ringler  & 
Co.,  59  App.  Div.  184,  69  N.  Y.  Supp. 
38;  Id.,  171  N.  Y.  693,  64  N.  E.  1126; 
Haynes  v.  Aldrich,  133  N.  Y.  287,  31 
N.  E.  94,  28  Am.  St.  Rep.  636;  Cam- 
pau  V.  Mitchell,  103  Mich.  617,  61  N. 
W.  890. 

In  Swart  v.  Western  Union  Tel. 
Co.,  132  Mich.  651,  94  N.  W.  197,  It 
was  decided  that,  since  a  person 
occupying  desk  room  merely  was 
not  a  subtenant,  if,  upon  the  ex- 
piration of  the  tenancy,  the  landlord 
refrained  from  removing  such  per- 
son's chair  and  desk,  there  was  in 
effect  a  consent  by  him  to  such  per- 
son's continued  occupancy,  and  that 
he  could  not  regard  this  as  consti- 
tuting a  holding  over  by  the  tenant. 


See,  also,  Landsberg  v.  Tivoli  Brew. 
Co.,  132  Mich.  651,  94  N.  W.  197,  for 
another  case  in  which  the  rule  was 
apparently  regarded  as  inapplicable. 

41  See  Lubetkin  v.  Henry  Elias 
Brew.  Co.,  21  Abb.  N.  C.  304,  4 
N.  Y.  Supp.  195;  Fulmer  v.  Cross- 
man,  8  Del.  Co.  Rep.  (Pa.)  78,  as 
in  accord  with  this  view. 

42  James  v.  Pope,  19  N.  Y.  324; 
Mason  v.  Tretig,  23  Misc.  443,  52  N. 
Y.  Supp.  249.  Buchanan  v.  Whit- 
man, 151  N.  Y.  253,  45  N.  E.  556,  in- 
volved the  question  whether,  in  the 
case  of  a  lease  to  a  firm,  a  partner 
alone  holding  over  could  assert  a 
right  of  renewal  given  by  the  lease 
to  the  firm,  and  it  was  decided  that 
he  could  not,  the  landlord  not  hav- 
ing recognized  him  as  holding  under 
the  terms  of  the  lease.  The  lan- 
guage of  the  court  is  rather  adverse 
to  the  view  that  a  holding  over  by 
one  partner  covld  bind  the  other 
partners,  if  otherwise  than  as  their 
representative. 


1476 


HOLDING  OVER  BY  TENANT. 


209 


01  the  landlord  to  regard  the  tenant  as  liable  for  another  period 
can  obviously  not  be  exercised  when  the  latter  remains  in  pos- 
session under  an  agreement  that  he  is  to  hold  for  a  less  period,^^ 
nor  when  the  landlord  or  the  landlord's  agent  induces  him  to 
remain  temporarily.-*^  And  a  provision  of  the  lease  that  the  ten- 
ant shall  pay  rent  for  the  term,  and  also  for  such  time  as  he  may 
hold  the  premises,  has  been  held  to  give  the  landlord  a  right  to 
hold  him  merely  for  the  period  of  actual  occupancy.'*^ 

It  has  been  decided  in  one  state  that  the  rule  would  not  be 
applied  in  favor  of  the  landlord  if  the  tenant  was  unable  wholly 
to  relinquish  possession  owing  to  the  serious  illness  of  a  member 
of  his  family,^^  and  likewise  where  the  removal  was  forbidden 


43  Wilcox  V.  Raddin,  7  111.  App.  (7 
Bradw.)  594;  Landsberg  v.  TivoU 
Brew.  Co.,  132  Mich.  651,  94  N.  W. 
197;  Dobbin  v.  McDonald,  60  Minn. 
380,  62  N.  W.  437;  Montgomery  v. 
Willis,  45  Neb.  434,  63  N.  W.  794; 
Luger  V.  Goerke,  18  App.  Div.  291,  79 
N.  Y.  St.  Rep.  839,  45  N.  Y.  Supp. 
839.  It  was  beld  tbat  one  of  sev- 
eral landlords,  tenants  in  common  of 
the  reversion,  could  so  agree  to  a 
temporary  holding  over  by  the  les- 
see firm,  though  he  was  a  member 
of  such  firm.  Valentine  v.  Healey, 
158  N.  Y.  369,  52  N.  B.  1097,  43  L. 
R.  A.  667.  But  a  mere  proposition 
by  the  tenant  to  hold  for  a  less  time, 
to  which  he  receives  no  answer 
owing  to  the  agent's  failure  to  trans- 
mit the  answer,  a,  refusal,  does  not 
justify  him  in  holding  over.  Smith 
V.  Snyder,  168  Pa.  541,  32  Atl.  64. 

44  Greaton  v.  Smith,  1  Daly  (N. 
Y.)  380;  Campau  v.  Mitchell,  103 
Mich.  617,  61  N.  W.  890.  So  where 
the  landlord's  agent  refused  to  ac- 
cept the  key  and  the  rent  which 
was  due,  and  told  the  tenant  to 
await  the  landlord's  return  to  the 
city.  Adler  v.  Mendelson,  74  Wis. 
464,  43  N.  W.  505. 

41.  Pickett    V.    Bartlett,    107    N.    Y. 


277,  14  N.  E.  301.  A  similar  effect 
was  given  to  a  clause  in  the  lease 
providing  that  the  tenants  should 
pay  "double  rent  for  all  such  time 
as  they  shall  hold  over  after  the 
expiration  of  the  term."  Green  v. 
Kroeger,  67  Mo.  App.  621.  But  see 
Edwards  v.  Hale,  91  Mass.  (9  Allen) 
462,  where  it  is  said  that  "covenants 
for  the  payment  of  rent,  in  case  the 
lessees  shall  hold  over,  do  not  give 
them  the  right  to  hold  over." 

46  Herter  v.  Mullen,  159  N.  Y.  28, 
53  N.  E.  700,  44  L.  R.  A.  703,  50  Am. 
St.  Rep.  517  (three  out  of  the  eight 
judges  dissenting).  On  a  subse- 
quent hearing  in  the  intermediate 
court,  it  was  decided  that  the  ten- 
ant thus  retaining  possession  was 
liable  for  rent  until  his  final  remov- 
al and  until  he  gave  notice  to  the 
landlord  of  that  fact.  Herter  v. 
Mullen,  65  N.  Y.  Supp.  279. 

In  Preiser  v.  Wielandt,  48  App. 
Div.  569,  62  N.  Y.  Supp.  890,  the  de- 
cision first  above  referred  to  was 
regarded  as  establishing  that  a  ten- 
ant so  holding  over  in  case  of  sick- 
ness was  rightfully  in  possession, 
and  that  therefore  the  landlord,  in 
cisft  he  undertook  to  tear  down  the 
building  at  the  end  of  the  term,  and 


§209 


LANDLORD'S  OPTION. 


1477 


by  the  board  of  health  owing  to  an  infectious  disease  contracted 
by  the  tenant 's  child.'*^  i^  another  state,  hoAvever,  it  is  held  that 
the  application  of  the  rule  would  not  be  affected  by  the  severe 
illness  of  the  tenant.-^^ 

As  before  stated,  the  rule  which  we  are  now  discussing  is  fre- 
quently stated  as  giving  to  the  landlord  a  right  to  treat  the  ten- 
ant as  holding  for  another  year,  or  "as  a  trespasser."  This 
statement,  that  the  tenant  may  be  treated  as  a  trespasser,  means 
merely,  it  would  seem,  that  the  landlord  may  treat  him  as  one 
wrongfully  in  possession.  In  other  words,  the  overholding  ten- 
ant, if  not  recognized  by  the  landlord  as  rightfully  in  possession, 
is  a  ''tenant  at  sufferance,"  giving  this  latter  term  its  proper 
signification  of  a  tenant  holding  over  without  permission.^9  In 
a  few  cases  it  has  been  decided  that  the  landlord  having,  by  his 
acts,  made  his  election  to  treat  the  tenant  holding  over  as  a  tres- 
passer, could  not  thereafter  assert  a  liability  on  his  part  as  ten- 
ant for  a  further  term.^*^ 


so  necessitated  the  removal  of  the 
sick  person,  was  liable  in  tort  for 
injuries  to  such  person  at  the  suit 
of  such  person's  administrator. 

47  Regan  v.  Fosdick,  19  Misc.  489, 

43  N.  Y.  Supp.  1102. 

48  Mason  v.  Wierengo's  Estate,  113 
Mich.  151,  71  N.  W.  489,  67  Am.  St. 
Rep.  4G1.  Here,  however,  the  ten- 
ant was  not,  apparently,  sick  on  the 
premises,  which  consisted  of  a  store, 
but  the  expressions  of  the  court 
would  seem  to  militate  strongly 
against  the  view  taken  in  Herter  v. 
Mullen,  159  N.  Y.  28,  53  N.  E.   700, 

44  L.  R.  A.  417,  70  Am.  St.  Rep.  517. 
40  See  ante,  §  15. 

50  It  was  held  that  there  was  such 
nn  election  when  the  landlord  put  up 
a  notice  "to  let"  and  accepted  the 
keys  and  took  possession  (Rosen- 
burg  V?  Lustgarten,  41  N.  Y.  St.  Rep 
C23,  16  N.  Y.  Supp.  523),  and  when 
the  tenant  made  a  new  lease  to  an- 
other (Goldberg  v.  Mittler,  23  Misc. 
116,  50  N.  Y.  Supp.  733;  Coleman  v. 


Fitzgerald  Bros'.  Brew.  Co.,  29 
Misc.  349,  60  N.  Y.  Supp.  460;  Smith 
V.  Maxfield,  9  Misc.  42,  29  N.  Y.  Supp. 
63);  but  not  merely  because  the 
landlord,  before  the  end  of  the 
term,  posted  a  "to  let"  sign,  which 
he  allowed  to  remain  after  the  end 
of  the  term  (Shanahan  v.  Shana- 
han,  55  N.  Y.  Super.  Ct.  [23  Jones  & 
S.]  339,  14  N.  Y.  St.  Rep.  738;  Man- 
ly V.  Clemens,  39  N.  Y.  St.  Rep.  199, 
14  N.  Y.  Supp.  366). 

The  commencement  of  summary 
proceedings  against  the  tenant  by 
the  landlord  has  been  regarded  as 
showing  an  election  to  regard  his 
possession  as  wrongful,  precluding 
the  landlord  from  thereafter  assert- 
ing a  new  tenancy  (Johnson  v.  John- 
son, 62  Minn.  302,  64  N.  W.  905; 
Rosenberg  v.  Sprecher,  74  Neb.  176, 
103  N.  W.  1045,  105  N.  W.  293),  as 
has  a  judgment  in  such  proceedings 
in  favor  of  the  landlord  (Lambert  v. 
Borden,  16  111.  App.  [16  Bradw.] 
431),     Likewise,  the  commencement 


1478 


HOLDING  OVER  BY  TENANT. 


§-09 


e.  Character  of  new  tenancy.  In  the  case  above  referred  to 
as  a  leading  case,^^  it  is  said  that  the  new  tenancy  created,  at 
the  landlord's  option,  by  the  holding  over,  is  a  tenancy  from  year 
to  year,  and  there  are  other  cases  to  the  effect  that,  if  the  original 
tenancy  was  for  a  year  or  more,  the  new  tenancy  is  from  year  to 
year.s2  j^j^j  on  the  same  principle,  in  cases  in  which  the  original 
term  was  less  than  a  year,  as  a  month  or  a  quarter,  the  new  ten- 
ancy might  presumably  be  regarded  as  a  periodic  tenancy  meas- 
ured by  such  a  period.^^  in  a  majority,  however,  of  the  deci- 
sions asserting  this  option  on  the  part  of  the  landlord,  it  is  stated, 
v/ithout  any  particular  discussion,  that  the  new  tenancy  is  for  an- 
other vear.5*      Occasionally   it  is  stated  that  the  new  tenancy 


of  an  action  for  the  penalty  named 
in  the  instrument  of  lease  in  case 
the  tenant  held  over  was  regarded  as 
an  election.  Peck  v.  Christman,  94 
111.  App.  435. 

In  Drake  v.  Wilhelm,  109  N.  C.  97, 
13  S.  E.  S91,  an  offer  by  the  landlord 
to  allow  the  tenant  to  remain  at 
the  same  rent,  made  after  the  end 
of  the  term,  was  regarded  as  a  waiv- 
er of  the  former's  right  to  treat  the 
latter  as  already  his  tenant. 

51  Conway  v.  Starliweather,  1 
Denio   (N.  Y.)   113. 

52  Smith  V.  Bell,  44  Minn.  524,  47 
N.  W.  263;  City  of  Chicago  v.  Peck, 
98  111.  App.  434;  Goldsborough  v. 
Gable,  140  111.  269,  29  N.  E.  722,  15 
L.  R.  A.  294;  Williams  v.  Ladew,  171 
Pa.  369,  33  Atl.  329;  Providence 
County  Sav.  Bank  v.  Hall,  16  R.  I. 
154,  13  Atl.  122;  Parker  v.  Page,  41 
Or.  579,  69  Pac.  822;  Shepherd  v. 
Cummings,  1  Cold.  (Tenn.)  354; 
Noel  V.  McCrory,  47  Tenn.  (7  Cold.) 
623.  In  Wisconsin  it  is  so  provided 
by  statutie.  See  Rev.  St.  1898,  § 
2187. 

5:i  Such  seems  to  be  the  decision  in 
Hood  V.  Drysdale,  27  Pa.  Super.  Ct. 
540. 

BiWolffe  V.  Wolff,  69  Ala.  549,  44 


Am.  Rep.  526;  Robinson  v.  Holt,  90 
Ala.  115,  7  So.  441;  A.  G.  Rhodes 
Furniture  Co.  v.Weeden,  108  Ala.  252, 
19  So.  318;  Bacon  v.  Brown,  9  Conn. 
334;  Cavanaugh  v.  Clinch,  88  Ga. 
610,  15  S.  E.  673;  Clinton  Wire  Cloth 
Co.  V.  Gardner,  99  111.  151;  Condon 
V.  Brockway,  157  111.  90,  41  N.  E. 
634;  New  York,  C.  &  St.  L.  R.  Co.  v. 
Randall,  102  Ind.  453,  26  N.  E.  122; 
Alleman  v.  Vink,  28  Ind  App.  142, 
62  N.  E.  461;  Scott  v.  Beecher,  91 
Mich.  590,  5  N.  W.  20;  Mason  v. 
Wlerengo's  Estate,  113  Mich.  151,  71 
N.  W.  4S9,  67  Am.  St.  Rep.  461; 
Haynes  v.  Aldrich,  133  N.  Y.  287,  31 
N.  E.  94,  28  Am.  St.  Rep.  636; 
Schuyler  v.  Smith,  51  N.  Y.  309,  10 
Am.  Rep.  609;  Merchants'  State 
Bank  v.  Ruettel,  12  N.  D.  137,  97  N. 
W.  853,  65  L.  R.  A.  762;  Baltimore 
&  0.  R.  Co.  V.  West,  57  Ohio  St.  161, 
49  N.  E.  344;  Harvey  v.  Gunzberg, 
148  Pa.  294,  23  Atl.  1005;  Hemphill 
V.  Flynn,  2  Pa.  144;  Smith  v.  Snyder, 
168  Pa.  541,  32  Atl.  64;  Brinkley  v. 
Walcott,  57  Tenn.  (10  Heisk.)  22; 
Gilman  v.  City  of  Milwaukee,  31  Wis. 
563;  Voss  v  King,  38  W.  Va.  607,  18 
S.  E.  762.  That  the  tenant  says  that 
he  will  rem-ain  after  the  term  only 
as  tenant  from  month  to  month  does 


§  209  LANDLORD'S  OPTION.  I479 

is  for  a  term  of  the  same  length  as  the  original  tenancy.^'' 

The  arbitrary  character  of  the  rule  appears  from  the  varying 
statements  of  difU'ereut  courts  as  to  the  character  of  the  tenancy 
which  is  created,  at  the  option  of  the  landlord,  by  the  holding 
over.  While  the  majority  of  the  cases  state  that  a  tenancy  for 
another  year  is  created,  none  of  them  give  any  reason  why  the 
tenancy  should  be  for  a  year  rather  than  for  some  other  period. 
It  is  not  probable  that  a  tenant  for  a  month  would,  by  holding 
over,  become  subject,  at  the  landlord's  option,  as  a  tenant  for  a 
year  longer,  though  the  rule  as  frequently  stated  would  have 
such  an  effect.  It  would  perhaps  be  more  satisfactory  if  the 
courts  should  agree  that  the  tenant  shall  be  liable,  at  the  option 
of  the  landlord,  for  another  period  equal  to  the  period  by  which 
the  rent  was  originally  adjusted.  That  is,  that  a  tenant  under 
a  lease  at  an  annual  rent  should  be  liable  as  tenant  for  another 
year,  while  a  tenant  under  a  lease  at  a  monthly  rent  should  be 
liable  as  tenant  for  another  month.  The  courts  have,  however, 
asserted  no  such  rule,  and  it  would  have  in  its  favor  merely  the 
consideration  of  convenience  and  exactitude. 

When  the  tenant  is  thus  regarded  as  liable  for  rent  for  an- 
other period  or  term  at  the  landlord's  option,  his  new  holding 
is  subject,  as  regards  rent,  and  in  other  respects,  to  the  provis- 
ions of  the  original  lease,^^  in  the  same  way  as  if  the  new  tenancy 

not  prevent  him  from  being  held  as  mencement    of    the   occupation,    the 

tenant    from    year    to    year,    if    the  lease  is  regarded  as  for  a  full  year, 

landlord  does  not  assent  to  his  re-  so  that  the  tenant  holding  over  may 

maining  as   tenant  from   month   to  be    treated    as    tenant    for    another 

month.     Abeel  v.  McDonnell,  39  Tex.  year.     Douglass  v.  Seiferd,  18  Misc. 

Civ.  App.  453,  87  S.  W.  1066.  188,  41  N.  Y.   Supp.   289;    Mason  v. 

55Ketcham  v.  Ochs,  34  Misc.  47U,  Tietig,  23  Misc.  443,  52  N.  Y.  Supp. 

70  N.  Y.  Supp.  268;  Id.,  74  App.  Div.  249. 

626,  77  N.  Y.  Supp.  1130;  Wood  v.  Gor-  so  Wolffe  v.  Wolff.  69  Ala.  549,  44 
don,  44  N.  Y.  St.  Rep.  640,  18  N.  Y.  Am.  Rep.  526;  McKinney  v.  Peck,  28 
Supp.  109;  Schneider  v.  Curran,  19  111.  174;  Clapp  v.  Noble,  84  111.  62; 
Ohio  Cir.  Ct.  R.  224;  Bradley  v.  New  York,  C.  &  St.  L.  R.  Co.  v.  Ran- 
Slater,  50  Neb.  682,  70  N.  W.  258,  dall,  102  Ind.  453,  26  N.  E.  122;  Mc- 
Where  a  lease  is  within  the  statute  Natt  v.  Grange  Hall  Ass'n,  2  Ind. 
providing  that  an  agreement  for  the  App.  341,  27  N.  E.  325;  Baylies  v.  In- 
occupation of  land  in  New  York  City,  gram,  84  App.  Div.  360,  82  N.  Y. 
which  does  not  specify  the  duration,  Supp.  891;  Id.,  181  N.  Y.  518,  73  N. 
shall  be  regarded  as  running  till  the  E.  1119;  Merchants'  State  Bank  v. 
first    of    May   next   after   the    com-  Ruettell,  12  N.  D.  519,  97  N.  W.  853; 


1480  HOLDING  OVER  BY  TENANT.  §210 

were  created  witli  the  tenant's  consent.^''' 

§  210.    Nev/  tenancy  by  agreement. 

a.  Agreement  express  or  implied.  Without  reference  to  the 
doctrine,  just  discussed,  that  the  landlord  has  an  option  to  re- 
gard the  tenant  holding  over  as  in  for  another  period  or  succes- 
sion of  periods,  it  is  evident  that  the  landlord  and  tenant  may 
agree  upon  a  continuance,  or  rather  renewal,  of  the  tenancy,  that 
is,  there  may  be  a  new 'demise  by  the  former  to  the  latter,  with  a 
consequent  right  of  possession  in  the  latter.  Such  a  demise  may 
be,  and  frequently  is,  in  express  terms,  but  it  may  be  inferred 
from  the  acts  of  the  parties,  such  as  the  payment  and  receipt  of 
rent.  In  either  case  there  is,  strictly  speaking,  a  "renewal  lease," 
but  this  expression  is  ordinarily  restricted  to  the  case  of  a  new 
demise  for  a  fixed  term. 

The  presumption  is,  it  has  been  said,  in  the  absence  of  evidence 
on  the  subject,  that  the  retention  of  possession  is  wrongful,  and 
not  under  a  new  letting,  expressed  or  inferred  from  the  acts  of 
the  parties.^s 

The  agreement  for  a  new  tenancy  is,  as  is  above  suggested, 
ordinarily  inferred  from  the  payment  of  rent  by  the  overholding 
tenant  and  its  acceptance  by  the  landlord,  but  other  circum- 
stances may  be  considered.^^  By  a  considerable  number  of  cases, 
an  agreement  for  a  new  tenancy  at  a  particular  rent  is  to  be  in- 
ferred from  the  facts  that  the  landlord  notifies  the  tenant  that 
if  he  holds  over  he  Avill  be  held  liable  at  that  rent,  and  that  the 
tenant,  without  making  any  protest,  does  hold  over.^o  it  has 
been  said  that  a  mere  demand  by  the  landlord,  made  after  the  end 

Stevens  v.  New  York,  111  App.  Div.  and  after  the  term  the  landlord  con- 

362,   97   N.   Y.   Supp.    10G2;    Voss  v.  tinned  to  collect  the  same  rent  from 

King,  38  W.  Va.  607,  IS  S.  E.  762.  the  subtenant,  and  no  notice  of  the 

57  See  post,  §  210  c.  termination    of    the    original    lease 

58  Brown  v.  Keller,  32  111.  151,  83  was  given,  the  jury  were  allowed  to 
Am.  Dec.  258.  find  that  the  former  tenant  still  con- 

59  When  a  subtenant  being  in  pos-  tlnued  as  such  and  that  the  land- 
session,  the  landlord  arranged  with  lord  was  still  bound  to  pay  to  the 
the  tenant  to  collect  the  rent  from  tenant  the  excess  of  rent  collected, 
the  subtenant,  and  to  pay  over  to  Schwarzler  v.  McClenahan,  38  App. 
the  tenant  the  difference  between  the  Div.  525,  56  N.  Y.  Supp.  611. 

rent  paid  by  the  subtenant  and  the        eo  See  post,  at  note  111. 
smaller  rent  payable  by  the  tenant, 


§210 


NEW  TENANCY  BY  AGREEMENT. 


1481 


of  the  term,  for  rent  then  accruing,  shows  permission  by  the 
landlord  that  the  tenant  may  remain,'^!  but  it  has  been  decided 
not  to  be  conclusive  evidence  of  his  assent  to  a  new  tenancy.*^- 
/^The  mere  fact  that  the  landlord  fails  promptly  to  demand  pos- 
session, or  to  take  steps  to  recover  it,  does  not  show  that  he  has 
consented  to  the  creation  of  a  new  tenancy.^^  And  the  fact  that 
he  brings  a  suit  for  rent,  which  may  be  intended  to  apply  only 
to  rent  accrued  during  the  original  tenancy,  cannot  have  such  an 
effect.^'*  That  the  landlord,  after  making  another  lease  to  an- 
other person,  tells  his  tenant  that  he  does  not  wish  to  disturb  him 
and  will  not  da  so  until  compelled  so  to  do  by  his  new  lessee,  is 
obviously  too  loose  and  indefinite  to  constitute  a  new  letting.^^ 
Nor  does  the  action  of  the  landlord  in  listening  to  a  proposition 
from  the  tenant  for  a  new  lease  have  such  an  effect.''^ 

The  payment  and  receipt  of  rent,  though  prima  facie  it  shows  a 
consent  to  a  new  tenancy,  may,  under  particular  circumstances, 
fail  to  do  so,  as  wheji  the  landlord  received  it  in  ignorance  that 
the  original  tenancy  had  come  to  an  end,"^"^  or  the  payment  is 


61  Willis  V.  Harrell,  118  Ga.  906, 
45  S.  E.   794. 

The  landlord's  consent  to  a  fur- 
ther holding  has  been  regarded  as 
shown  by  a  month's  notice,  given  by 
the  landlord,  to  quit  on  a  day  three 
months  later  thar  the  end  of  the 
term,  the  notice  declaring  that  day 
to  be  the  end  of  a  monthly  term,  the 
landlord  also,  in  his  affidavit  for  the 
tenant's  removal,  stating  that  the 
tenant  held  at  a  monthly  rental  of 
a  certain  amount,  payable  monthly. 
Baker  v.  Kenny,  69  N.  J.  Law,  180, 
54  Atl.  526. 

62  Condon  y.  Barr,  47  N.  J.  Law, 
113,  54  Am.  Rep.  121.  In  Banbury 
V.  Sherin,  4  S.  D.  88,  55  N.  W.  723, 
it  was  decided  that  there  was  no  re- 
newal for  another  year  because  the 
landlord  demanded  rent  for  the  first 
month  after  the  expiration  of  the 
lease,  where  a  notice  given  before  its 
expiration  demanded  possession,  not 
on  the  day  (?f  its  expiration,  but  a 


month  thereafter,  since  the  effect  of 
such  notice  was  to  allow  the  tenant 
to  hold  over  a  month,  paying  rent. 

63  Cairo  &  St.  L.  R.  Co.  v.  Wiggins 
Ferry  Co.,  82  111.  230;  Den  d.  Decker 
V.  Adams,  12  N.  J.  Law  (7  Halst.) 
99;  Jackson  v.  McLeod,  12  Johns. 
(N.  Y.)   182. 

eiFelton  v.  Chellis  (Vt.)  69  Atl. 
149.  But  contra  when  the  suit  was 
specifically  for  rent  accruing  since 
the  end  of  the  original  tenancy. 
Clinton  Wire  Cloth  Co.  v.  Gardner. 
99  111.  151. 

65  Ball  V.  Peck,  43  111.  482. 

66  Mastin  v.  Metzinger,  99  Mo. 
App.  613,  74  S.  W.  431. 

The  landlord  does  not,  by  accept- 
ing a  bond,  in  the  course  of  pro- 
ceedings by  him  to  recover  the  land, 
to  relinquish  possession  to  him,  ad- 
mit the  tenant's  possession  to  be 
rightful.  Dorrell  v.  Johnson,  34 
Mass.  (17  Pick.)  263. 

67  Doe  d.  Lord  v.  Crago,  6  C,  B.  90. 


1482  HOLDING  OVER  BY  TENANT.  §  210 

made  after  suit  to  recover  possession  has  been  brought  by  the 
landlord.^^  It  is  a  question  of  fact  in  each  case  whether  a  new 
tenancy  is  created.^^ 

The  fact  that  one  of  the  several  joint  lessees  holds  over  under 
a  tacit  agreement  with  the  landlord  for  a  new  tenancy  does  not 
bind  the  other  joint  tenants  for  a  further  period,'^"  unless,  it 
seems,  they  assent  to  such  holding  and  agreement."^ 

In  AVyoming  it  is  provided  by  statute  that  there  shall  be  no 
implied  renewal  of  a  lease,  for  any  period  whatever,  either  by 
the  tenant  holding  over  or  by  the  landlord  accepting  rent,  and 
that  a  holding  over  shall,  in  the  absence  of  an  express  contract 
in  writing  for  renewal,  create  a  tenancy  at  sufferance  only  J  2  It 
is  difficult  to  perceive  the  object  of  such  legislation,  apparently 
making  one  retaining  possession  by  his  landlord's  asseait,  even 
though  paying  rent  to  him,  a  wrongdoer. 

b.  Character  of  new  tenancy.  The  weight  of  authority  is  to 
the  effect  that  if  the  previous  tenancy  was  for  one  or  more  years, 
the  new  tenancy  thus  created  "by  implication"  is,  presumptively, 
one  from  year  to  year.'^^    This  view,  in  the  ordinary  case,  when  the 

68  Vanderford  v.  Foreman,  129  N.  he  was  allowed  to  hold  over  by  the 
C.  217,  39  S.  E.  839.  vendor    merely    in    hopes    that    he 

69  Dougal  V.  McCarthy  [1893]  1  Q.  would  obtain  the  decree  and  the 
B.   736;   Pusey  v.  Presbyterian  Hos-  sale  be   carried   through. 

pital,  70  Neb.  353,  97  N.  W.  475,  113  to  James    v.    Pope,    19    N.    Y.    324. 

Am.   St.  Rep.   788;    Wilcox   v.   Mon-  See  Draper  v.  Crofts,  15  Mees.  &  W. 

tour  Iron  &  Steel  Co.,  147   Pa.  540,  166. 

23  Atl.  840;   White  v.  Sohn,   63   W.  71  See  Christy  v.  Tancred,  9  Mees. 

Va.  80,  59  S.  E.  890.     In  VvMlliamson  &   W.    438;    Tancred   v.    Christy,    12 

V.  Paxton,  18  Grat.  (Va.)  475,  where  Mees.  &  W.  316. 

a  contract  for  the  sale  of  land  to  a  72  Wyoming  Rev.  St.  1899,  §§  2772, 

trustee   provided  that,   if   he    failed  2773.     And  see  the  Connecticut  stat- 

to  obtain  a  decree  ratifying  the  pur-  ute,  ante,  note  30. 

chase    by    a    time    named,    the    pur-  73  Doe  d.  Clarke  v.  Smaridge,  7  Q. 

chaser   should    occupy   the  property  B.  957;    Manning  v.  Dever,  35  U.  C. 

as  tenant  for  a  year,  and  the  sum  Q.     B.     294;     Dougal     v.    McCarthy 

previously   paid   by   him    should   be  [1893]  1  Q.  B.  736;   Singer  Mfg.  Co. 

regarded  as  rent,  and  he  did  fail  to  v.    Sayre,    75    Ala.    270;    Belding  v. 

obtain  such  decree,  it  was  held  that  Texas  Produce  Co.,   61  Ark.  377,  33 

the  fact  that  he  continued  to  hold  S.  W.  421;  Strousse  v.  Bank  of  Clear 

after  the  year,  paying  rent,  did  not  Creek  County,  9  Colo.  App.  478,  49 

make  him  tenant  from  year  to  year,  Pac.  260;  Roberson  v.  Simmons,  109 

since  the  circumstances  showed  that  Ga.  360,  34  S.  B.  604;  Clinton  Wire 


§210 


NEW  TENANCY  BY  AGREEMENT. 


1483 


new  tenancy  is  based  upon  the  payment  and  acceptance  of  rent, 
accords  with  the  general  rule  as  to  the  inference  of  a  tenancy 
from  year  to  year  from  the  payment  of  a  yearly  rent,'^^  since  the 
rent  reserved  on  a  lease  for  one  or  more  years,  even  though 
payable  monthly,  is  usually  an  annual  rent,  that  is,  adjusted 
with  reference  to  yearly  periods,  and  like  sums,  paid  and  accepted 
periodically  after  the  termination  of  the  lease,  may  well  be 
regarded  also  as  constituting  annual  rent.  Likewise,  adjudica- 
tio'ns  that,  if  the  original  tenancy  was  for  one  or  more  months, 
at  a  certain  monthly  rent,  the  payment  and  acceptance  of  a  like 
rent,  after  the  expiration  of  the  original  tenancy,  create  a  tenancy 
from  month  to  month,'^^  are  in  accord  with  the  general  rule  as  to 
the  inference  of  a  monthly  tenancy  from  the  payment  of  monthly 

rent.'^^ 

In  some  cases  the  continuance  of  the  relation  by  the  assent  of 


Cloth   Co.    V.    Gardner,   99    111.    151; 
Hately  v.   Myers,    96   111.   App.   217; 
Gardner  v.   Dakota  County   Com'rs, 
21  Minn.  33;   Love  v.  Law,  57  Miss. 
596;  Schneider  v.  Lord,  62  Mich.  141, 
28    N.    W.     773;     Goldsborough    v. 
Gable,  140  111.  269,  29  N.  E.  722,  15 
L.  R.  A.  294;   Streit  v.  Fay,  230  111. 
319,  82  N.  E.  648,  120  Am.  St.  Rep. 
304;    Hall    v.    Myers,    43    Md.    446; 
Hanimon    v.    Douglas,    50    Mo.    434; 
Critchfield  v.  Remaley,  21  Neb.  178, 
31  N.  W.  687;  West  v.  Lungren,  74 
Neb.  105,  103  N.  W.  1057;  Baltimore 
&  O.  R.  Co.  V.  West,  57  Ohio  St.  161, 
49  N.  E.  344;    Borough  of  Phoenix- 
ville  v.  Walters,  147  Pa.  501,  23  Atl. 
776;  Matthews  v.  Hipp,  66  S.  C.  162, 
44    S.    E.    577;     Hart    v.    Finney,    1 
Strob.  Law   (S.  C.)    250;  Kibbard  v. 
Newman,   61   Tenn.    (2   Baxt.)    285; 
Amsden   v    Atwood,   69   Vt.   527,  38 
Atl.    263;     Emerick    v.    Tavener,    9 
Grat.    (Va.)    224;    Baltimore  Dental 
Ass'n  v.  Fuller,  101  Va.  627,  44  S.  E. 
771;   King  v.  Wilson,  98  Va.  259,  35 
S.  E.  727;    Allen  v.  Bartlett,  20  W. 
Va.  46. 


74  See  ante,  §  14  b  (2)   (a). 

75  Stoppelkamp     v.     Mangeot,     42 
Cal.   316;    Williams  v.  Apothecaries 
Hall  Co.,   80  Conn.  508,  69  Atl.   12; 
Shirk  V.  Hoffman,  57  Minn.  230,  58 
N.  W.  990;    Backus  v.  Steinberg,  59 
Minn.  4C3,  61  N.  W.   335;    Simmons 
V.  Jai-man,  122  N.  C.  195,  29  S.  E.  332; 
Condon  v.  Barr,  47  N.  J.  Law,  113, 
54  Am.  Rep.  121;    Baker  v.  Kenny, 
69  N.  J.  Law,  180,  54  Atl.  526;  Provi- 
dence County  Sav.  Bank  v.  Hall,  16 
R.    I.    154,    13    Atl.    122;    Barium    v. 
Berger,    125    Mich.    504,    84    N.    W. 
1070;    Eastman  v.  Richard,  29  Can. 
Sup.    Ct.     438     (semble).     Compare 
Schilling  v.  Klein,  41  111.  App.  209. 
In  Hammon  v.  Douglas,  50  Mo.  434, 
it  is  said  that  if  a  yearly  rent   is 
received   from   the   overholding  ten- 
ant, there  is  a  tenancy  from  year  to 
year,  while  if  a  monthly  rent  is  so 
received,  he  is  a  tenant  from  month 
to  month.     This  it  is  conceived,   is 
the  proper  rule,  subject,  however,  to 
evidence  of  a  different  intention. 

76  See  ante,  §  16  c  (1). 


1484  HOLDING  OVER  BY  TENANT.  §  210 

both  parties  has  been  spoken  of,  not  as  creating  a  periodic  ten- 
ancy, such  as  one  from  year  to  year  or  from  month  to  month, 
but  as  creating  a  new  tenancy  for  another  year,''"''  while  occa- 
sionally the  new  tenancy  is  said  to  be  for  the  same  period  as  the 
original  term,  without  reference  to  whether  it  be  greater  or  less 
than  a  year.'^^  It  has  also  been  stated  that  if  a  tenant  for  a  term 
less  than  a  year  holds  over,  aaid  the  landlord  accepts  or  demands 
rent,  there  is  a  new  demise  for  another  term  of  the  same  dura- 
tion, while  if  the  original  term  is  for  a  year  or  more,  there  is 
created  a  tenancy  from  year  to  yearJ^ 

The  doctrine  that  a  tenancy  from  year  to  year  is  to  be  inferred 
from  a  holding  over  and  the  payment  of  rent  has  been  applied, 
not  only  when  the  holding  is  after  the  expiration  of  the  term  of  a 
lease,  but  also  when  a  lease  is  given  by  a  tenant  for  life,  and,  after 
its  termination  by  his  death,  rent  is  accepted  by  the  remainder- 
man from  the  tenant  previously  holding  under  the  lease.^*^ 

In  Maine  and  Massachusetts,  where  the  statutory  provision  that 
no  estate  or  interest,  unless  created  by  writing,  shall  have  greater 
force  and  effect  than  a  tenancy  at  will,  is  construed  as  excluding 
the  inference  of  a  tenancy  from  year  to  year  from  the  payment 
of  a  yearly  rent,^^  the  new  tenancy,  ordinarily  to  be  inferred 
from  the  actions  of  the  parties  in  case  of  a  holding  over,  is  at  will, 
and  terminable  as  such  by  either  party.^^ 

In  a  number  of  states  the  character  of  the  tenancy  created  by 
such  a  holding  over  with  the  landlord's  consent  is  determined 

77  Cole  V.  Sanford,  77  Hun,  198,  R.  85;  Doe  d.  Tucker  v.  Morse,  1 
59  N.  Y.  St.  Rep.  763,  28  N.  Y.  Supp.  Barn  &  Adol.  365;  Oakley  v.  Monck, 
358;  Bateman  v.  Maddox,  86  Tex.  L.  R.  1  Exch.  159.  See  Bernstein  v. 
546,  26  S.  W.  51;  Baltimore  &  O.  R.  Demmert,  73  N.  J.  Law,  118,  62  Atl. 
Co.  V.  West,  57  Ohio  St.  161,  49  N.  187. 

B.   344;    Zippar  v.   Reppy,    15   Colo.  si  See  ante,  §  14  b  (2)   (a),  at  note 

260,  25  Pac.  164;   Usher  v.  Moss,  50  480. 

Miss.  208.  82  Wheeler  v.  Cowan,  25  Me.  283; 

78  Rothschild  V.  Williamson,  83  Kendall  v.  Moore,  30  Me.  327;  Frank- 
Ind.  387;  Bollenbacker  v.  Fritts,  98  lin  Land,  Mill  &  Water  Co.  v.  Card, 
Ind.   50.  84    Me.    528,    24   Atl.    960;    Perry   v. 

79Prickett    v.    Ritter,    16    111.    96;  Rockland  &  R.  Lime  Co.,  94  Me.  325, 

Field    V.   Herrick,   14    111.   App.    (14  47  Atl.  534;  Emmons  v.  Scudder,  115 

Bradw.)  181;  Kleespies  v.  McKenzie,  Mass.  367;  Walker  Ice  Co.  v.  Ameri- 

12  Ind.  App.  404,  40  N.  B.  648.  can  Steel  ft  Wire  Co.,  185  Mass.  463, 

eo  Doe  d.  Martin  v.  Watts,  7  Tenn.  70  N.  E.  937, 


210 


Kew  tenancy  by  agreement. 


148c 


by  the  language  of  a  local  statute.    These  statutes  are  referred 
to  in  the  notes.^^ 


83  In  California  (Civ.  Code,  § 
1945)  it  is  provided  that  if  rent  is 
paid  and  accepted  after  the  end  of 
the  term,  the  parties  are  presumed 
to  have  renewed  the  lease  on  the 
same  terms  and  for  the  same  time, 
not  exceeding  "one  month  vfhen 
the  rent  is  payable  monthly,  nor 
in  any  case"  one  year.  ,-  In  Mon- 
tana (Rev.  Codes  1907,  §  5230), 
North  Dakota  (Rev.  Codes  1905, 
§  5531),  and  South  Dakota  (Rev. 
Civ.  Code  1903.  §  1437),  there 
are  like  provisions,  in  the  latter  two 
states  the  words  in  quotation  marks 
being  oi^iitted.  See  Banbury  v.  She- 
rin,  4  S.  D.  88,  55  N.  W.  723.  The 
next  section  of  the  California  Code 
provides  that  a  hiring  of  real  prop- 
erty, for  a  term  not  specified  by  the 
parties,  is  deemed  to  be  renewed, 
as  stated  in  the  previous  section,  at 
the  end  of  the  term  implied  by  law, 
unless  one  of  the  parties  gives  no- 
tice to  the  other  of  his  intention  to 
terminate  the  same,  at  least  as  long 
before  the  expiration  thereof  as  the 
term  of  the  hiring  itself,  not  exceed- 
ing one  month.  Like  provisions  are 
found  in  North  Dakota  and  South 
Dakota.  Presumably,  by  "the  term 
implied  by  law"  is  meant  the  term 
arising  under  the  previous  section 
by  rea^ion  of  the  holding  over  and 
payment  and  acceptance  of  rent. 

In  Iowa,  under  the  statute  pro- 
viding that  any  person  in  possession 
of  land  with  the  assent  of  the  owner 
is  presumed  to  be  a  tenant  at  will 
until  the  contrary  is  shown  (ante, 
§  13  a  (6),  note  393),  a  tenant  hold- 
ing over  and  paying  rent  is,  in  the 
absence  of  stipulation  to  the  con- 
trary,   merely     a     tenant    at    will. 


O'Brien  v.  Troxel,  76  Iowa,  760,  40 
N.  W.  704;  German  State  Bank  v. 
Herron,  111  Iowa,  25,  82  N.  W.  430. 

In  Kansas  (Gen.  St.  1905,  §  40-52) 
and  Oklahoma  (Rev.  St.  1903,  § 
3321),  when  a  tenant  under  a  lease 
for  one  or  more  years  continues  to 
occupy  with  the  landlord's  assent,  he 
is  to  be  deemed  a  tenant  from  year 
to  year.  See  "Ware  v.  Nelson,  4  Kan. 
App.  258,  45  Pac.  923. 

Minnesota  Rev.  Laws  1905,  §  3333, 
provides  that  when  a  tenant  of  urban 
real  estate  holds  over  without  an  ex- 
press contract,  no  tenancy  for  any 
other  period  than  the  shortest  inter- 
val between  the  times  of  payment  of 
rent  under  the  terms  of  the  original 
lease  shall  be  implied.  This  provision 
was  held  to  be  inapplicable  when  the 
original  lease  gave  the  tenant  an 
option  to  renew.  Quade  v.  Fitzloff, 
93  Minn.  115,  100  N.  W.  660.  As  to 
what  constitutes  "an  express  con- 
tract," see  Stees  v.  Bergmeier,  91 
Minn.  513,  98  N.  W.  648.  As  to 
recovery,  by  one  holding  as  tenant 
from  month  to  month  under  the 
statute,  for  injuries  to  his  goods 
caused  by  the  landlord's  negligence, 
see  Slafter  v.  Siddall,  97  Minn.  291, 
106  N.  W.  308. 

In  Missouri,  where  the  statute 
provides  that  an  oral  lease  of  a 
building  in  a  city  shall  create  a 
tenancy  from  month  to  month  (ante, 
§  14  c  [2],  note  508),  a  tenant 
of  such  a  building,  holding  over.  Is 
a  tenant  from  month  to  month. 
Hammon  v.  Douglas,  50  Mo.  442; 
Drey  v.  Doyle,  28  Mo.  App.  249; 
Smith  V.  Smith,  62  Mo.  App.  596. 

Nevada  Comp.  Laws,  §  3827,  pro- 
vides that  in  case  of  a  lease  for  a 


1486 


HOLDING  OVER  BY  TENANT. 


§210 


Any  inference,  from  the  payment  and  receipt  of  rent,  or  from 
other  circumstances,  as  to  the  character  of  the  tenancy  created, 
upon  a  holding  over  with  the  landlord's  consent,  is  one  of  fact, 
and  may  be  excluded  by  evidence  that  another  class  of  tenancy 
was  intended,  the  rule  in  this  regard  being  the  same  as  in  the  case 
of  an  original  entry  under  a  ''general  letting. "«■*•  ^^  Thus  the 
lease  may  expressly  determine  the  character  of  the  holding  in  case 
the  tenant  fails  to  vacate  at  the  end  of  the  term,^^  or  the  holding 
over  may  be  by  virtue  of  a  provision  for  renewal  in  the  lease.^^ 
So  a  new  agreement  between  the  landlord  and  the  tenant  as  to 
the  future  holding  necessarily  excludes  any  contrary  inference,^^ 
as  when  the  landlord  acquiesced  in  the  tenant's  proposal  to  re 
main  but  a  limited  time,^^  or  when  the  landlord  told  the  tenant 
that  if  he  held  over  it  must  be  as  tenant  from  month  to  month.^'^ 
It  has  been  held  that  the  fact  that  a  tenant,  holding  over  after  a 
term  of  several  years,  pays  as  rent  for  a  month  a  sum  different 


month,  or  for  any  term  less  than  a 
year,  if  the  tenant  holds  over  by  the 
landlord's  consent,  the  tenancy  shall 
be  construed  to  be  a  tenancy  from 
month  to  month,  or  a  tenancy  for 
such  term  less  than  a  year,  as  the 
case  may  be. 

In  Wisconsin  Rev.  St.  1898,  §  2187, 
the  statute  provides  that  "if  a  ten- 
ant for  a  year  or  more  shall  hold 
over  after  the  expiration  of  his  term, 
he  may,  at  the  election  of  his  land- 
lord, be  considered  a  tenant  from 
year  to  year  upon  the  terms  of  the 
original  lease."  This  is  stated  to  be 
in  confirmation  of  the  common-law 
rule.  Brown  v.  Kayser,  60  Wis.  1,  18 
N.  W    523.     See  ante,  §  209. 

84,85  See  ante,  §  14  b  (2). 

sepappe  v.  Trout,  3  Okl.  260,  41 
Pac.  397.  So  in  McDevitt  v.  Lam- 
bert, 80  Ala.  536,  2  So.  438,  where  the 
lease  gave  the  lessee  the  "option  to 
continue  to  occupy  by  the  month," 
the  lessee,  holding  over,  became  ten- 
ant from  month  to  month. 

8T  Montgomery  v.  Hamilton  Coun- 
ty Com'rs,  76  Ind.  362,  40  Am.  Rep. 


250.     See  Harty  v.  Harris,  120  N.  U. 
408,  27  S.  E.  90. 

ss  Secor  v.  Pestana,  37  111.  525; 
Johnson  v.  Foreman,  40  111.  App. 
456;  Walker  v.  Githens,  156  Pa.  178, 
27  Atl.  36;  Insurance  &  Law  Bldg.  Co. 
V.  National  Bank,  71  Mo.  58;Gunso- 
lus  v..  Dormer,  54  Wis.  630,  12  N.  W. 
62. 

89  Lally  V.  New  Voice,  128  111.  App. 
455;  Montgomery  v.  Willis,  45  Neb. 
434,  63  N.  W.  794.  So,  where  the 
overholding  tenant's  offer  of  a  cer- 
tain rent  was  refused,  but,  to  his 
proposal  to  pay  that  rent  till  he 
found  another  place,  the  landlord 
made  no  reply,  and  the  property  was 
placed  by  the  latter  in  the  hands  of 
his  agent  to  rent  to  others,  it  was 
held  that  there  was  a  tenancy  in 
accordance  with  the  tenant's  pro- 
posal till  he  found  another  place. 
Hoffman  v.   McCollum,  93  Ind.  326. 

no  Shipman  v.  Mitchell,  64  Tex. 
174.  And  see  Brownell  v.  Welch.  91 
111.  523;  Oarrner  v.  Dakota  County 
Com'rs,  21  Minn.  33. 


s  210  NEW  TENANCY  BY  AGREEMENT.  14S7 

from  that  payable  monthly  under  the  original  lease,  renders 
the  new  holding  one  from  month  to  month,  on  the  theory,  it  seems, 
that,  there  being  nothing  to  show  that  these  payments  are  not 
of  a  monthly  rent,  they  are  to  be  regarded  as  such,  while  in  the 
ordinary  case  of  the  payment  of  sums  similar  to  those  stipulated 
for  in  the  instrument  of  lease,  the  payments  are  to  be 
construed  with  reference  thereto,  and  consequently  as  being 
installments  of  yearly  rent,  if  such  was  the  character  of  the  pay- 
ments under  the  lease.^^ 

It  has  been  said  that  a  holding  over  pending  a  treaty  for  a  new 
lease  creates  a  tenancy  at  will,'^^  and  this  accords  with  the  ordi- 
nary rule  that  a  permissive  holding  without  the  payment  of  a 
periodic  rent  constitutes  such  a  tenancy,  provided  there  is  no 
payment  of  a  periodic  rent  during  the  negotiations.  Permission 
to  hold  until  the  tenant  could  remove  his  fixtures  has  been  re- 
garded as  creating  a  tenancy  at  will,^^  and  such  a  tenancy  has 
been  regarded  as  arising  when  the  landlord  told  the  tenants  hold- 
ing over,  before  accepting  any  payments  from  them,  that  he 
would  not  consent  to  a  tenancy  from  year  to  year,  but  that  they 
should  remain  as  they  were  on  the  expiration  of  the  lease.^'* 

Conceding  that  the  new  tenancy,  created  by  a  permissive  hold- 
ing over,  is  in  the  particular  case  periodic,  that  is,  from  period 
to  period,  it  can,  by  the  weight  of  authority,  be  determined  only 
by  notice,  as  in  the  case  of  a  similar  periodic  tenancy  otherwise 

91  Blumenberg  v.  Myres,  32  Cal.  93,  ecuted,  it  was  held  that  the  fact 
91  Am.  Dec.  560;  Fall  v.  Moore,  45  that  he  subleased  the  adjoining 
Minn.  515,  48  N.  W.  404.  That  the  premises  to  the  former  occupant 
rent,  being  an  annual  rent,  is  paid  thereof,  and  paid  the  rent  named  in 
monthly,  is  immaterial.  See  Bern-  the  new  agreement,  although  the 
stein  V.  Demmert,  73  N.  J.  Law,  118,  payment  was  under  protest  because 
"62  Atl.  187.  the    adjoining    premises    needed    re- 

92  Doe  d.  Hollingsworth  v.  Sten-  pairs,  sufficiently  showed  an  entry 
nett,  2  Esp.  717;  Grant  v.  White,  42  under  the  new  agreement,  so  as  to 
Mo.  285;  City  of  Dubuque  v.  Miller,  make  him  tenant  at  will  rather  than 
11  Iowa,  583;  Jackson  v.  Miller,  7  tenant  at  sufferance,  and  so  to  re- 
Cow.   (N.  Y.)   747.  quire   notice    before    he    could   quit. 

Where  a  tenant  held  over,  having  Emmons  v.  Scudder,  115  Mass.  367. 
made  an  agreement  with  the   land-        93  Landsberg  v.  Tivoli   Brew.  Co., 

lord  for  the  leasing  to  him   of  the  132  Mich.  651,  94  N.  W.  197. 
premises   previously  leased  to   him,        oi  idington  v.  Douglas,  6  Ont.  Law 

and     also     of    adjoining     premises.  Rep.  266. 
which   lease  was   not,   however,   ex- 


1488 


HOLDING  OVER  BY  TENANT. 


§210 


ereated.^^  In  one  state  at  least,  however,  a  different  view  has 
been  taken,  to  the  effect  that  such  a  new  tenancy  can  be  termi- 
nated without  notice,  a  distinction  being  made  between  a  tenancy 
from  year  to  year  arising  from  holding  over  and  one  arising 
otherwise.*^^  There  are  in  England  several  decisions  as  to  the 
mode  of  determining  the  time  at  which  the  notice  to  quit  must, 
in  such  a  case,  expire.^'"''^ 

c.  Terms  of  new  tenancy.  The  new  tenacy  created  by  the 
mutual  assent  of  the  landlord  and  tenant  is  presumptively  o.n  the 
same  terms  as  the  original  lease,  so  far  as  these  are  applicable 
to  the  new  tenancy.io'^     So  it  has  been  held  that  a  proviso  for  re- 


95Hately  v.  Myers,  96  111.  App. 
217;  Wilgus  v.  Lewis,  8  V-o.  App. 
336;  Hall  v.  Myers,  43  Md.  446; 
Shirk  V.  Hoffman,  57  Minn.  230,  58 
N.  W.  990;  Critclifield  v.  Remaiey,  21 
Neb.  178,  31  N.  W.  687;  Baltimore 
Dental  Ass'n  v.  Fuller,  101  Va.  627, 
44  S.  E.  771;  Allen  v.  Bartlett,  20  W. 
Va.  46;  Brown  v.  Kayser,  60  Wis.  1, 
18  N.  W.  523.  In  Wisconsin  the 
statute  now  provides  that  the  ten- 
ancy from  year  to  year  created  by 
holding  over  may  be  terminated  by 
thirty  day's  notice  at  the  end  of 
any  year.  Rev.  St.  1898,  §  2187. 
See  Peehl  v.  Bumbalek,  99  Wis.  62, 
74  N.  W.  545. 

96  Gladwell  v.  Holcomb.  60  Ohio 
St.  427,  54  N.  E.  473,  71  Am.  St.  Rep. 
724. 

In  Adams  v.  Cohoes,  127  N.  Y.  175, 
28  N.  E.  25,  likewise,  it  seems  to  be 
held  that  the  tenant  holding  over 
becomes  a  tenant  from  year  to  year, 
with  the  right,  however,  to  term- 
inate his  tenancy  at  the  end  of  any 
year  without  notice.  But  the  case 
is  by  no  means  clear.  Rohrbach  v. 
Crossett,  46  N.  Y.  St.  Rep.  426,  19 
N.  Y.  Supp.  450,  seems  to  be  to  the 
same  effect.  And  see  Thompson  v. 
Chich,  92  Hun,  510,  72  N.  Y.  St.  Rep. 
212,  37  N.  Y.  Supp.  59.     If  the  ten- 


ancy from  year  to  year,  created  by 
holding  over,  is  terminable  without 
notice,  it  is  practically  equivalent 
to  a  tenancy  for  another  year,  it 
seems. 

The  tenancy  thus  arising  from  a 
holding  over  by  consent  is  not  with- 
in the  statute  providing  that  leases 
of  land  in  New  York  City  not  speci- 
fying the  duration  of  the  tenancy 
shall  run  until  the  first  day  of  May. 
Laimbeer  v.  Taller,  21  N.  Y.  St.  Rep. 
380,  4  N.  Y.  Supp.  588;  Id.,  125  N.  Y. 
725,  26  N.  E.  756;  Furman  v.  Galan- 
opulo,  92  N.  Y.  Supp.  730. 

97-99  See  ante,  §  200,  at  notes  182- 
186. 

100  Morgan  v.  Harrison  [1907]  2 
Ch.  137;  In  re  Canada  Coal  Co.,  27 
Ont.  151;  Isaacs  v.  Ferguson,  26  New 
Br.  1;  Wolffe  v.  Wolff,  69  Ala.  549, 
44  Am.  Rep.  52G;  Singer  Mfg.  Co. 
V.  Sayre,  75  Ala.  270;  Belding  v. 
Texps  Produce  Co.,  61  Ark.  377,  33 
S.  W.  421;  Zippar  v.  Reppy,  15  Colo. 
260,  25  Pac.  164;  McKinney  v.  Peck, 
28  111.  174;  Goldsborough  v.  Gable. 
152  111.  594,  38  N.  E.  1025;  Ridgeway 
V.  Hannum,  29  Ind.  App.  124,  64  N. 
E.  44;  De  Young  v.  Buchanan,  10 
Gill  &  J.  (Md.)  149,  32  Am.  Dec.  156; 
Dimock  v.  Van  Bergen,  94  Mass.  (12 
Allen)    551;   Weston  v.  Weston,  102 


§210 


NEW  Tli^NANCY  BY  AGRliiEMBNT. 


Ksy 


entry  on  nonpayment  of  rent  attaches  to  the  tenanoy  created 
by  the  permissive  holding  over,^^^  and  likewise  a  covenant  to 
repair^*^-  or  improve. ^"^^ 

It  w^as  held  that  the  rent  could  not  be  presumed  to  be  the 
same  vi'hen  the  lease,  which  was  for  a  year,  provided  for  several 
.collateral  matters  to  be  dooie  by  each  party,  which  could  not  be 
performed  in  a  subsequent  year,^*^'^  and  when  the  lease  provided 
that,  as  compensation  for  the  use  of  the  land,  the  lessee  should 
reduce  it  from  wild  land  to  a  state  of  cultivation,  this  not  being 
applicable  to  the  new  tenancy,  since  there  was  no  more  wild  land, 
the  tenant  was  regarded  as  liable  for  the  value  of  the  use  and 
occupation.io^  And  it  has  been  suggested  that  a  change  in  the 
condition  of  the  premises,  rendering  them  less  valuable,  might 
rebut  the  presumption  that  the  rent  is  the  same.^^^ 

The  tenant's  covenant  to  put  the  premises  in  the  same  state 
of  repair  at  the  end  of  the  term  as  at  the  beginning  has  beeai 
regarded  as  not  binding  him  to  put  them  in  such  a  state  of  re- 
pair at  the  end  of  the  new  tenancy.^^'^ 

If  the  original  lease  specifically  provides  different  terms  in 
case  of  continuance  of  the  tenancy,  the  original  terms  obviously 
cannot  apply  thereto.^^^ 


Mass.  514;  Brown  v.  Magorty,  156 
Mass.  209,  30  N.  E.  1021;  Faxon  v. 
Jones,  176  Mass.  138,  57  N.  E.  360; 
Gardner  v.  Dakota  County  Com'rs, 
21  Minn.  83;  Love  v.  Law,  57  Miss. 
596;  Coatsworth  v.  Ray,  52  N.  Y. 
Supp.  498;  Baylies  v.  Ingram,  84 
App.  Div.  360,  82  N.  Y.  Supp.  891; 
Id.,  181  N.  Y.  518,  73  N.  E.  1119; 
Pflum  V.  Spencer,  123  App.  Div.  742, 
108  N.  Y.  Supp.  344;  Finney  v.  St. 
Louis,  39  Mo.  177;  Haeussler  v.  Hol- 
man  Paper-Box  Co.,  49  Mo.  App.  631; 
Moore  v.  Harter,  67  Oliio  St.  250,  65 
N.  E.  883;  Williams  v.  Foss-Arm- 
strong  Hardware  Co.,  135  Wis.  280, 
115  N.  W.  803;  Phillips  v.  Monges,  4 
Whart.  (Pa.)  226;  Wilson  v.  Alex- 
ander, 115  Tenn.  125.  88  S.  W.  935; 
Amsden  v.  Atwood,  69  Vt.  527,  38 
Atl.  263;  Allen  v.  Bartlett,  20  W.  Va. 
46. 


101  Thomas  v.  Packer,  1  Hurl.  &  N. 
669;  Baylies  v.  Ingram,  84  App.  Div. 
360,  82  N.  Y.  Supp.  891;  Id.,  181  N. 
Y,  518,  73  N.  E.  1119. 

102  Digby  V.  Atkinson,  4  Camp.  275. 
See  Haeussler  v.  Holman  Paper-Box 
Co.,  49  Mo.  App.  631;  Hett  v.  Zan- 
zen,  22  Ont.  414.  Frederick  v.  Dan- 
iels, 74  Conn.  710,  52  Atl.  414,  ap- 
pears, however,  to  be  C07itra. 

103  Slafter  v.  Siddall,  97  Minn.  291, 
106  N.  W.  308. 

104  Diller  v.  Roberts,  13  Serg.  & 
R.    (Pa.)    60,  15  Am.  Dec.  578. 

105  Martin  v.  Hamersky,  63  Kan« 
360,  65  Pac.  637. 

106  Whittenmore  v.  Moore,  39  Ky. 
(9  Dana)    315. 

107  Johnson  v.  St.  Peter,  Hereford, 
4  Adol.  &  E.  520. 

108  See  City  of  Plattsmouth  v.  New 


L.  and  Ten.  94. 


1490 


HOLDING  OVER  BY  TENANT. 


§210 


"While,  in  the  absence  of  anything  to  show  the  contrary,  the 
courts  assume,  as  a  matter  of  law  apparently,  that  the  new  holding 
is  subject  to  the  terms  of  the  original  lease,  so  far  as  applicable, 
the  question  whether  it  is  so  subject  becomes  one  of  fact  if  there 
is  any  evidence  that  the  new  holding  is  on  different  terms.^^^ 

The  holding  over  may  be  upon  a  rent  different  from  that  be- 
fore reserved,  though  otherwise  the  terms  are  the  samc^^*^  A 
contract  for  a  different  rent  has  been  held  to  arise  when  the 
landlord  notifies  the  tenant  that  if  he  holds  over  he  must  pay 
an  increased  rent,  and  the  tenant  makes  no  reply  and  does  hold 
over,  this  being  regarded  as  an  acceptance  of  the  landlord's 
proposition.^  11  If,  however,  the  tenant  protests  against  such 
increase,  there  can,  by  the  cases  generally,  be  no  implication  of 
assent  by  him,  and  no  greater  rent  cau  be  demanded  than  before.ii^ 


Hampshire  Sav.  Bank  (C.  C.  A.)  139 
Fed.  631. 

100  City  of  Thetford  v.  Tyler,  8  Q. 
B.  95;  Hyatt  v.  Griffiths,  17  Q.  B. 
505;  Elgar  v.  Watson,  Car.  &  M. 
494;  Crommelin  v.  Thiess,  31  Ala. 
412,  70  Am.  Dec.  499;  Goldsbrough  v. 
Gable,  152  111.  594,  38  N.  B.  1025; 
Hitt  V.  Greiser,  71  Mo.  App.  206;  Dil- 
ler  V.  Roberts,  13  Serg.  &  R.  (Pa.) 
60,  15  Am.  Dec.  578. 

110  Kelly  V.  Patterson,  L.  R.  9  C. 
P.  681;  Digby  v.  Atkinson,  4  Camp. 
275. 

111  Roberts  v.  Hayward,  3  Car.  & 
P.  432;  RTithman  v.  Brandenburg, 
7  Colo.  480,  4  Pac.  788;  Griffin  v. 
Knisely,  75  111.  411;  Galloway  v.  Ker- 
by,  9  111.  App.  (9  Bradw.)  501; 
Easton  v.  Mitchell,  21  111.  App.  189; 
Rand  v.  Purcell,  58  111.  App.  228; 
Gardner  v.  Dakota  County  Com'rs, 
21  Minn.  33;  Columbia  Brew.  Co. 
V.  Miller,  124  Mo.  App.  384,  101 
S.  W.  711;  Hunt  v.  Bailey,  39 
Mo.  257;  Hulett  v.  Nugent,  71  Mo. 
131;  Despard  v.  Walbridge,  15  N.  Y. 
874;  Colt  V.  Planer,  51  N.  Y.  647; 
Mack  V.  Burt,  5  Hun  (N.  Y.)  28; 
Frost  V.   Akron  Iron   Co.,   12   Misc. 


348,   33   N.   Y.   Supp.   654;    Thorp   V, 
Philbin,  15  Daly,  155,  3  N.  Y.  Supp 
939;    Moore  v.  Harter,    67   Ohio    St 
250,  65  N.  E.  883;  Pittsfield  v.  Ewing 
6  Phila.  (Pa.)  455;  Williams  v.  Foss 
Armstrong  Hardware  Co.,   135  Wis 
280,  115  N.  W.  803;  Amsden  v.  Blais 
dell,  60  Vt.  386,  15  Atl.  332;   Apple 
ton  Waterworks  Co.  v.  Appleton,  132 
Wis.  563,  113  N.  W.  44;   Hilliard  v. 
Genmell,  10  Ont.  504.     The  doctrine 
referred  to  cannot  apply,  it  has  been 
decided,  if  before  giving  such  notice 
the  landlord  has  made  a  new  lease 
extending    the    term,    even    though 
such  lease  does  not  name  any  rent. 
Schickedantz  v.  Rincker,  75  Neb.  312, 
106  N.  W.  441. 

In  Murphy  v.  Little,  69  Vt.  261, 
37  Atl.  968,  it  was  held  that  the  land- 
lord, by  accepting  and  receipting  for 
payments  at  the  old  rate,  waived 
the  notice  of  the  proposed  increase 
in  rent. 

112  Meaher  v.  Pomeroy,  49  Ala. 
146;  Hunt  V.  Bailey,  39  Mo.  257; 
Gallagher  v.  Himelberger,  57  Ind. 
63;  Atkinson  v.  Cole,  16  Colo.  83,  26 
Pac.  815;  Canning  v.  Fibush,  77  Cal. 
196, 19  Pac.  376;  Lasher  v.  Heist,  12(i 


§211  LIABILITY  IN  USE  AND  OCCUPATION.  I49I 

Occasional  decisions  and  dicta  to  the  effect  that  even  if  the 
tenant  objects  to  the  payment  of  the  increased  rent,  he  will  be 
liable  therefor  so  long  as  he  retains  possession/^^  ^^j^.^  objectionable, 
as  in  effect  imputing  to  the  tenant  an  intention  which  he  has  ex- 
pressly disclaimed,  and  as  enabling  the  landlord  to  fix  a  penalty 
of  any  amount  for  a  wrongful  holding  over  by  the  tenant.^  ^^  It 
m-ight  indeed  be  questioned  whether,  in  the  ordinary  case,  the 
tenant,  by  retaining  possession  even  without  objection  to  the  pro- 
posed increase  of  rent,  intends  to  indicate  assent  to  such  increase. 
The  courts  have,  however,  assumed  that  he  does  so  intend.  It 
may  be  remarked  that,  if  holding  over  the  term  after  such  a 
notification  of  increase  in  rent  is  to  be  regarded  as  showing  an  ac- 
ceptance of  the  la.ndlord's  proposition  to  remain  in  possession 
at  that  rent,  the  agreement  should  bind  the  landlord  as  well  as  the 
tenant.  In  one  case,  however,  it  appears  to  have  been  decided 
that  the  landlord  is  not  bound  by  the  terms  of  his  notice  though 
the  tenant  does  hold  over.^^^ 

§    211.     Liability  in  use  and  occupation. 

We  have  thus  far  considered  the  liability  of  the  tenant  to  the 
landlord  upon  the  theory  that  there  was  a  continuation  of  the 
tenancy  with  the  landlord's  consent,  either  with  or  without  the 
tenant's  consent.  We  will  now  consider  the  liability  of  the 
tenant  to  the  landlord  in  case  he  holds  over  without  the  land- 
lord's assent,  and  the  landlord  does  not  assert  that  a  new  ten- 
ancy has  been  created. 

There  is  at  common  law  no  liability  for  rent  on  the  part  of  a 

111.  App.  82;  De  Young  v.  Buchanan,  v.  Walcott,  57  Tenn.  (10  Heisk.)   22, 

10  Gill  &  J.  (Md.)  149,  32  Am.  Dec.  the   tenant   was    regarded    as   liable 

156.     And  see  Mitchell  v.  Clary,  20  for  the  increased  rent  for  the  whole 

Misc.  594,  46  N.  Y.  Supp.  446,  where  year,    though   he    objected   that   the 

the  tenant  showed  his  nonassent  by  rent  was  too  great,  he  paying,  how- 

Immediately  leaving.  ever,  a  month's  rent  at  the  rate  nam- 

113  There  are  dicta  to  that  effect  ed,  and  expressing  a  willingness  to 

in  Stees  v.  Bcrgmeier,  91  Minn.  -513,  pay   it   until    he   could    get   another 

98  N.  W.  648;    Moore  v.  Harter,   67  suitable  place. 

Ohio  St.  250,  65  N.  B.  883,  and  a  die-  ii4  See  McClung  v.  McPherson,  47 

tum,  if  not  a  decision,  in  Griffin  v.  Or.  73,  81  Pac.  567,  82  Pac.  13. 

Knisely,  75  111.  411.     See  comments  115  Lautman  v.  Miller,  158  Ind.  382, 

on  this   latter  case   in    Galloway  v.  63  N.  E.  761. 
Kerby,  9  111.  App.  501.     In  Brinkley 


1492 


HOLDING  OVER  BY  TENANT. 


§211 


tenant  wrongfully  holding  over,  a  tenant  at  sufferance.  This, 
it  has  been  said,%  ' '  because  it  was  the  folly  of  the  owners  to  suffer 
them  to  continue  in  possession  after  the  determination  of  the 
preceding  estate,  "^^^  but  a  more  satisfactory  reason  is  that  an 
obligation  to  pay  rent  is  the  result  of  a  contract  or  reservation, 
and  there  is  ordinarily  no  coatract  to  pay  rent  after  the  term, 
nor  a  reservation  of  rent  then  to  accrue.^i^  It  is  only  by  means 
of  a  new  agreement  between  the  landlord  and  the  tenant,  in  effect 
a  renewal  of  the  lease,  or  by  means  of  the  application  of  the  doc- 
trine, before  referred  to,  of  the  landlord's  option,  as  against  the 
tenant  wrongfully  holding  over,  to  assert  a  renewal  of  the  ten- 
ancy ,^^8  that  the  tenant  can  be  subjected  to  liability  as  for  rent 
accruing  after  the  expiration  of  the  original  term. 

It  has  been  decided  in  a  number  of  cases  that  a  tenant  holding 
over  without  permission  is  liable  in  assumpsit  for  use  and  occu- 
pation for  such  period  as  he  so  holds  over,ii^  and  a  like  view  has 


116  Finch's  Case,  2  Leon.  143;  1 
Cruise's  Dig.,  tit.  9,  c.  2,  §  5. 

11'  Hogsett  V.  Ellis,  17  Mich.  351. 

118  See  ante,  §  209. 

119  Ibbs  V.  Richardson,  9  Adol.  &  B. 
S49;  Jennier  v.  Clegg,  1  Moody  & 
R.  213;  Bayley  v.  Bradley,  5  C.  B. 
396;  Leigh  v.  Dickerson,  15  Q.  B. 
Div.  60;  Christy  v.  Tancred,  9  Mees. 
&  W.  438;  Hogsett  v.  Ellis,  17  Mich. 
357;  Meaher  v.  Pomeroy,  49  Ala.  146; 
Pitkin  County  v.  Brown,  2  Colo.  APP. 
473,  31  Pac.  525;  Aheel  v.  Radcliff,  13 
Johns.  (N.  Y.)  297,  7  Am.  Dec.  377; 
Smith  V.  Singleton,  71  Ga.  68; 
Stuart  V.  Hamilton,  66  111.  253;  Van 
Brunt  V.  Pope,  6  Abb.  Pr.  (N.  S.,  N. 
Y.)  217;  Harris  v.  Foster,  97  Cal. 
292,  32  Pac.  246.  33  Am.  St.  Rep. 
187;  Williams  v.  Ladew,  171  Pa.  369, 
33  Atl.  329;  Bacon  v.  Brown,  9  Conn. 
334:  Pish  v.  Ryan,  88  111.  App.  524; 
L^utman  v.  Miller,  158  Ind.  382,  63 
N.  E.  761;  Longfellow  v.  Longfellow, 
54  Me.  240;  SchwoPbel  v.  Fugina.  14 

.  N.  D.  375,  104  N.  W.  848;  Chambers 
V.  Ross,  25  N.  J.  Law  (1  Dutch.)  293; 


Poole  V.  Engelke,  61  N.  J.  Law,  124, 
38  Atl.  823.  See  post,  §  306  d. 
Occasional  statements  that  the  hold- 
ing over  tenant  is  liable  for  rent 
(Chapin  V.  Foss,  75  111.  280;  Ven- 
tura Hotel  Co.  V.  Pabst  Brew.  Co., 
33  Ky.  Law  Rep.  149,  109  S.  W.  354; 
Forbes  v.  Smiley,  56  Me.  174)  pre- 
sumably mean  little,  if  anything, 
more  than  that  he  is  liable  in  use 
and  occTipation.  In  one  case  a  ten- 
ant who  held  over  was  made  liable 
for  the  value  of  the  use  and  occu- 
pation when  the  circumstances  pre- 
vented the  exercise  by  the  landlord 
of  the  option  to  hold  him  as  tenant 
for  another  year.  San  Antonio  v. 
French,  80  Tex.  575,  16  S.  W.  4C0,  26 
Am.  St.  Rep.  763.  But  in  Herter  v. 
Mullen,  52  App.  Div.  325,  65  N.  Y. 
Supp.  279,  the  court  appears  to  have 
decided  that  in  such  case  the  tenant 
is  liable  for  rent,  as  distinct  from 
the  value  of  the  use  and  occupation, 
a  view  not  concurred  in  by  one  of 
the  judges. 

In    Coleman    v.    Fitzgerald    Bros. 


§211 


LIABILITY  IN  USE  AND  OCCUPATION. 


149c 


been  asserted  with  reference  to  a  lessee  under  a  life  tenant  who 
holds  over  after  the  death  of  the  latter.120  g^ch  a  liability  has 
been  imposed  when  the  tenant  himself  was  not  in  pos- 
session, but  the  holding  over  was  by  a  subtenant  with- 
out the  tenant's  consent/21  though  if  the  landlord  accepts  the 


Brew.  Co.,  29  Misc.  349,  60  N.  Y. 
Supp.  460,  the  court  held  that  a  land- 
lord could  not  recover  rent  for  one 
month,  during  which  the  tenant  held 
over  after  the  three  years  term,  if 
after  that  month  the  landlord  made 
a  lease  to  another,  in  effect  constru- 
ing the  statement,  frequently  found, 
that  the  landlord  has  the  option  to 
treat  the  tenant  holding  over  as  a 
tenant  for  another  term,  or  as  a 
trespasser  (ante,  §  209),  as  exclud- 
ing any  other  alternative,  such  as  to 
hold  him  liable  as  tenant  for  the 
time  during  which  he  actually  holds 
over.  So  in  Macklin  v.  McNetton, 
30  Misc.  749,  63  N.  Y.  Supp.  438,  it 
is  decided  that  a  tenant  holding  over 
cannot  be  made  liable  in  use  and 
occupation,  the  landlord  having  the 
option  to  treat  him  as  a  tenant  for 
another  year,  or  as   a  trespasser. 

In  Merrill  v.  Bullock,  105  Mass. 
486,  it  is  said,  per  Gray,  J.,  that,  at 
common  law,  a  tenant  at  sufferance, 
occupying  by  permission  of  the  land- 
lord, was  liable,  upon  an  implied  con- 
tract, in  assumpsit  for  use  and  occu- 
pation." But,  it  is  submitted,  there 
is  no  such  thing  as  a  "tenant  at  suf- 
ferance, occupying  by  permission  of 
the  landlord."  One  is  a  tenant  at 
sufferance  because  he  occupies  with- 
out permission.  See  ante,  §  15  a. 
In  view  of  the  context,  it  may  be 
that  by  "occupying  by  permission" 
is  meant  commencing  occupation, 
that  is,  taking  possession,  by  per- 
mission. 

i»»  Guthmann  v.  Vallery,  51  Neb. 


824,  71  N.  W.  734,  66  Am.  St.  Rep. 
475;  Hoagland  v.  Crum,  113  111.  365, 
55  Am.  Rep.  424.  In  Mackey  v.  Rob- 
inson, 12  Pa.  170,  where  one  having 
control  over  the  premises  for  his  life 
only  made  a  lease  for  years,  it  was 
held  that  the  lessees,  holding  over 
after  his  death,  were  tort  feasors, 
and  consequently  not  liable  in  debt 
for  rent,  or  even  in  assumpsit,  but 
that  they  might  have  been  held 
liable  for  mesne  profits  in  ejectment. 
See  post,  §  212,  and  compare  post,  § 
306  d,  at  note  105. 

121  Henderson  v.  Squire,  L.  R.  4  Q. 
B.  170;  Harding  v.  Crethorn,  1  Esp. 
57;  Ibbs  v.  Richardson,  9  Adol.  &  E. 
849;  McKenzie  v.  City  of  Lexington, 
34  Ky.  (4  Dana)  129;  Dimock  v.  Van 
Bergen,  94  Mass.  (12  Allen)  551; 
Bless  V.  Jenkins,  129  Mo.  647,  31  S. 
W.  938. 

According  to  Schilling  v.  Holmes, 
23  Cal.  227,  83  Am.  Dec.  Ill,  it  would 
seem  that  a  tenant  might  be  so 
liable  even  when  he  had  been  evicted 
by  a  wrongdoer,  and  was  so  unable 
to  return  the  premises  at  the  end  of 
the  term.  In  that  case  he  was  held 
liable  under  such  circumstances  for 
double  rent,  under  the  statute.  But 
when  the  lessee  was  deprived  of  the 
possession  by  the  military  authori- 
ties during  the  term,  without  his 
consent,  he  was  held  not  to  be  liable 
in  case  they  held  over,  though  dur- 
ing the  term  he  received  rent  from 
them,  indirectly,  through  lessees  of 
other  parts  of  the  building.  Con- 
stant V.  Abell,  36  Mo.  174. 


1494 


HOLDING  OVER  BY  TENANT. 


§211 


subtenant  as  his  tenant  the  former  tenant  is  discharged.^ 22  Jq 
such  an  action  the  tenant  is  liable  for  the  reasonable  value  of  the 
use  and  occupation  of  the  premises,  and,  while  presumably  this 
would  be  regarded  as  prima  facie  equal  to  the  rent  reserved  by 
the  lease,  in  the  absence  of  evidence  to  the  contrary,  it  may  be 
either  more  or  less,  as  may  appear  proper  on  the  evidence. ^^^'^^^ 
In  IMassachusetts  and  Ehode  Island  it  is  provided  by  statute  that 
"tenants  at  sufferance  in  possession  of  land  or  tenements  shall 
be  liable  to  pay  rent  therefore  for  such  time  as  they  may  occupy 
or  detain  the  same."^25  n  i-i^g  been  held  that  a  tenant  at  will  who 
becomes  a  tenant  at  sufferance  by  reason  of  a  lease  or  other  con- 
veyance made  by  the  landlord,^  26  jg^  under  such  a  statute,  liable 
to  the  lessee  or  grantee  alone,^^!  ^nd  is  not  liable  even  to  him 
unless  he,  the  tenant,  has  notice  of  the  conveyance.^^^  Such  a 
statute  does  not,  it  has  been  decided,  apply  as  against  one  who 
originally  entered  otherwise  than  under  the  plaintiff  or  one 
under  whom  the  plaintiff  claims,  and  who  wrongfully  retains 
possession  after  his  interest  has  come  to  an  end.^29     Xn  Kansas  a 


122  Harding  v.  Crethorn,  1  Esp.  57; 
Dimock  v.  Van  Bergen,  94  Mass.  (12 
Allen)   551. 

123,124  Hogsett  V.  Ellis,  17  Mich. 
367;  City  of  Detroit  v.  Gleason,  116 
Mich.  564,  74  N.  W.  880;  Poole  v. 
Engelke,  61  N.  J.  Law,  124,  38  Atl. 
823;  Van  Brunt  v.  Pope,  6  Ahb.  Pr. 
(N.  S.,  N.  Y.)  217.  In  Clapp  v. 
Noble,  84  111.  62,  it  was  held  that  the 
rent  named  in  the  lease  fixes  con- 
clusively the  liability  of  the  tenant 
holding  over  in  defiance  of  the  land- 
lord. In  Dubuque  Lumber  Co.  v. 
Kimball,  111  Iowa,  48,  82  N.  W.  458, 
the  tenant  holding  over  was  held 
liable  for  the  rent  fixed  in  the  lease, 
and  not  for  that  named  in  a  subse- 
quent lease,  but  there  it  seems  that 
the  tenant  held  over  from  the  first 
by  permission. 

In  Ambrose  v.  Hyde,  145  Cal.  555, 
79  Pac.  64,  it  was  held  that  there 
could  be  no  recovery  in  use  and 
occupation  against  the  overholding 


tenant  by  reason  of  the  lack  of  evi- 
dence as  to  the  value  of  the  use 
and  occupation  or  as  to  the  rent 
reserved  on  the  expired  lease. 

125  Massachusetts  Rev.  Laws,  c. 
129,  §  3;  Rhode  Island  Gen.  Laws 
1896,  c.  269,  §  2. 

126  See  ante,  §  15  b,  at  note  586. 
12"  Bunton  v.  Richardson,  92  Mass. 

(10  Allen)  260;  Cofran  v.  Shepard, 
148  Mass.  582^  20  N.  E.  181,  3  L.  R. 
A.  257,  12  Am.  St.  Rep.  601. 

12s  Dixon  V.  Smith,  181  Mass.  218, 
63  N.  E.  419. 

Under  this  statute,  if  a  tenant  at 
will  continues  to  occupy  the  prem- 
ises after  a  portion  thereof  has  been 
conveyed  by  his  landlord,  he  becomes 
tenant  at  sufferance  as  to  all,  and  is 
liable  to  his  former  landlord  for  the 
reasonable  value  of  the  use  and 
occupation  of  such  portion  as  is  still 
retained  by  the  latter.  Emmes  v. 
Feeley,  132  Mass.  346. 

120  Merrill   v.   Bullock,   105    Mass, 


1  212  LIABILITY  AS  TORT  FEASOR.  1495 

tenant  holding  over  has  been  regarded  as  within  a  statute,i3o 
providing  that  an  occupant  without  special  contract  of  any  land 
shall  be  liable  for  rent  to  any  person  entitled  thereto.i^i 

§  212.     Liability  as  tort  feasor. 

If  the  tenant  fails  to  relinquish  possession  at  the  end  of  the 
term,i32  or  his  subtenant  fails  to  do  so,^^~^  he  is  liable  to  the  land- 
lord in  damages  for  the  resulting  injury  to  the  latter.  Thus  it 
has  been  held  that  the  landlord  may  recover  for  the  loss  of  an  op- 
portunity to  let  to  another/^3  ^nd  likewise  the  expense  of  a  suit 
to  recover  possession.i^^  But  usually  the  damages  sought  and 
allowed  are  the  value  of  the  land  for  use  or  rental  for  the  time 
during  which  the  landlord  was  kept  out  of  possession/ ^5  the 
action  for  damages  being  thus  in  effect  one  for  mesne  profits.i^s 
It  seems  to  be  immaterial,  for  most  purposes,  whether  the  landlord 
brings  an  action  of  tort  for  damages  from  holding  over,  or  an 
action  for  use  and  occupation,  which,  as  stated  in  the  preceding 
section,  he  has  the  right  to  bring. 

The  lease  may  provide  for  liquidated  damages,  in  a  reasonable 
amount,  in  case  the  tenant  holds  over.^^i     j^^  an  express  stipu- 

486;    Carpenter  v.   Allen,  189  Mass.  is*  Bramley  v.  Chesterton,  2  C.  B. 

246,  75  N.  E.   622.  (N.  S.)  592.     The  tenant  is  so  liable 

130  Gen.  St.  1901,  §  3864.  though  it  was  a  subtenant  who  kept 

131  Benton  v.  Beakey,  71  Kan.  872,  the  landlord  out.  Henderson  v. 
81  Pae.  196.  Squire,  L.  R.  4  Q.  B.  170. 

i32Bramley  v.  Chesterton,  2  C.  B.  "s  Buhman  v.  Nickels  (Cal.  App.) 

(N.  S.)   592;   Canning  v.  Fibush,  77  95  Pac.  177;   Barnett  v.  Feary,   101 

Cal.  196,  19  Pac.   376;    Snideman  v.  Ind.  95;  Keegan  v.  Kinnare,  123  111. 

Snideman,  118  Ind.  162,  20  N.  E.  723,  280,  14  N.  B.  14;  Butterfield  v.  Kirt- 

6  Am.  Rep.  460;   Russell  v.  Fabyan,  ley,  115  Iowa,  207,  88  N.  W.  371. 

34  N.  H.  225;  Moore  v.  Davis,  49  N.  i36  Sargent  v.  Smith,  78  Mass.  (12 

II.  45.  Gray)   426.     And  see  Russell  v.  KIl- 

132a  Henderson  v.  Squire,  L.  R.  4  lion,  7  Phila.    (Pa.)    110;   Henderson 

Q.  B.  170.  V.  Squire,  L.  R.  4  Q.  B.  170.     That  an 

133  Stoddard    v.    Waters,    30    Ark.  action  for  mesne  profits  will  lie,  see 

156.     But   it  has  been  decided  that  Comyn,  Landl.  &  Ten.  510;    Adams, 

damages  cannot  be  allowed  for  the  Ejectment   (Waterman's  Ed.)   at  pp. 

failure  to  relinquish  possession  till  383,  446;    1  Stephen's  Commentaries 

after  the  most  favorable  season  for  (7th  Ed.)  294.     Compare  ante,  §  15a, 

letting  it,  it  not  appearing  that  the  at  note  560. 

landlord  could   have  leased  it  even  ist  Poppers    v.    Meagher,    148    HI. 

If    sooner    returned.     Watrigant    v.  192,   35  N.  E.   805.     There  the  rent 

Dufort,  28  La.  Ann.  892.  reserved  was  §500  per  month,  with 


1496  HOLDING  OVER  BY  TENANT.  §  213 

lation  that  the  tenant  shall  in  that  case  pay  double  rent  has  as  such 
been  sustained.^^*  A  provision  of  this  character,  it  has  been 
held,  imposes  the  liability  on  the  tenant,  although  the  holding 
over  is  not  by  him,  but  is  by  one  to  whom  he  has  transferred  the 
possession.139  The  landlord  cannot  recover  liquidated  damages 
for  holding  over,  as  provided  by  the  lease,  if  he  has  recognized  the 
overholding  tenant  as  rightfully  in  possession,  as  by  accepting 
payments  from  the  tenant  as  of  rent,  i^°  or  even  by  demanding 
the  payment  of  rent.^"*^ 

§  213.     Liability  for  double  rent  or  value. 

a.  After  notice  or  demand  by  landlord.  By  St.  4  Geo.  2,  c. 
28,  §  1,  it  is  enacted  that  "in  case  any  tenant  or  tenants  for  any 
term  of  life,  lives  or  years,"  or  other  person  or  persons  in  pos- 
session of  any  lands,  tenements  or  hereditaments,  by,  from  or 
under,  or  by  collusion  with,  such  tenant  or  tenants,  shall  "will- 
fully hold  over"  after  the  determination  of  such  term  or  terms, 
and  "after  demand  made,  and  notice  in  writing  given,"  for  de- 
livering the  possession  thereof  by  his  or  their  landlords  or  lessors, 
or  the  person  or  persons  to  whom  the  remai.iider  or  reversion  be- 
longs, his  or  their  agents  lawfully  authorized,  such  person  or 
persons  so  holding  over  shall,  "for  and  during  the  time  he,  she 
and  they  shall  so  hold  over,"  pay  to  the  person  or  persons  kept 
out  of  possession,  "at  the  rate  of  double  the  yearly  value  of  the 
lands,  tenements  and  hereditaments  so  detained,  for  so  long  time 
as  the  same  are  detained."  This  statute  is  in  force  in  at  least 
one  state/ 42  and  has  been  re-enacted  in  another,!^^  and  in  others 
there  are  statutes  to  an  approximately  similar  effect.^^^    In  some 

a  provision  for  the  payment  of  ?30  142  See    Alexander's    British    Stat- 

per  day  in  case  of  holding  over,  and  utes  in  force  in  Maryland, 

this   was    regarded    as    valid,    testi-  143  2  New  Jersey  Gen.  St.  p.  19121, 

mony    showing    that    the    premises  §  27. 

were  worth  $7,000  a  year.  i*^  nunois,   Kurd's   Rev.   St.   1905, 

13S  Walker  v.  Engler,   30  Mo.  130.  c.  80.  §  2   (If  tenant,  or  person  hold- 

139  Kerr  v.  Simmons,  8  Mo.  App.  ing  under  or  in  collusion  with  him, 
43^  willfully  holds  over  after  expiration 

140  Chicago  Theological  Seminary  of  term  and  after  written  demand 
V.  Chicago  Veneer  Co.,  94  111.  App.  for  possession,  he  is  liable  for 
492_  double  the  yearly  value  for  the  time 

141  Kelso  V.  Crilly,  85  111.  App.  568.  of   such  holding  over) ;   Iowa  Code 


§213 


LIABILITY  FOR  DOUBLE  RENT  OR  VALUE. 


1497 


states  the  statrtte  makes  the  tenant  wrongfully  holding  over  liable, 
not  for  double  the  yearly  value  of  the  premises,  but  for  double 
rent,i4^  and  occasionally  the  statute  makes  the  tenant  holding  over 
liable  for  treble  rent.^^® 


1897,  §  2989   (Tenant  willfully  hold- 
ing ov^r  after  term  and  after  notice 
to  quit,  liable  for  double  the  rental 
value    during    the    time   of    holding 
over) ;  MissouH  Rev.  St.  1899,  §  4106 
(Substantially    same    as    Illinois); 
New   York   Real   Prop.    Law,    §    200 
(Substantially  same  as   Illinois,  ex- 
cept that  holding  over  must  be  after 
expiration  of  thirty  days  from  service 
of  demand  for  possession.     Liable  in 
addition      for      special      damages); 
South    Carolina    Civ.    Code    1902,    § 
2411  (Tenant,  or  person  in  collusion 
with  him,  holding  over  after  term- 
ination of  his  estate,  and  after  de- 
mand in  writing  for  possession,  for 
the  space  of  three  months  after  such 
demand,    shall     forfeit    double    the 
value  of  the  use   of  the  premises). 
The  sum  recoverable  is  to  be  calcu- 
lated from  the  time  of  demand,  and 
not  from  the  expiration  of  the  three 
months.      Reeves    v.    McKenzie,     1 
Bailey  Law  (S.  C)   497.     Wisconsin 
St.  1898,  §  2186    (Tenant,  or  person 
in  posses^.ion  under  or  by  collusion 
with    him,     willfully    holding    over 
after  demand  made  and  one  month's 
notice  in  writing,  liable  at  rate  of 
double  the  yearly  value  for  time  of 
holding  over,  and  also  for  all  special 
damage ) . 

nr.AlaMma  Code  1907,  §  i2TS 
(One  entering  under  lease,  who  un- 
lawfully retains  possession  after 
end  of  term  and  demand  to  sur- 
render, liable  for  double  agreed  rent 
au'^  for  special  damages) ;  Arkansas, 
Kirby's  Dig.  §  4(596  (Tf  any  tennnt, 
or  person  coming  into  possession  un- 


der or  by  collusion  with  him,  shall 
willfully   hold  over  after   the  term- 
ination of  the  term  and  thirty  days' 
written  notice  requiring  possession, 
he  shall  pay  double  the  yearly  rents 
for  the  time  of  such  holding  over) ; 
Delaicare  Rev.  Code  1893,  p.  866,  § 
5  (Tenant  holding  over,  or  person  in 
collusion   with   him   so   doing,  after 
notice    by    landlord,    is    liable    for 
double  rent) ;  Florida  Gen.  St.  1906, 
§  2235    (If  tenant  refuse  to  give  up 
possession  at  end  of  lease,  landlord 
may    demand    double    the    monthly 
rent,  and  may  recover  it  at  the  end 
of  every  month,  or  in  the  same  pro- 
portion    for    a    longer    or    shorter 
time) ;  Georgia  Code  1895,  §  3124  (If 
tenant  holds  over  after  his  term  ex- 
pires,    the     landlord     may     recover 
double    rent   for    such    time) ;    Ken- 
tucky St.  1903,  §  2293  (Tenant  whose 
terra  expires  at  time  certain  and  who 
refuses    to    deliver    possession,    and 
tenant   who,   having   agreed   to    dis- 
pense with  notice,  refuses  to  deliver 
possession  when  demanded,  shall  pay 
double  the  rent  he  would  otherwise 
have  been  boimd  to  pay,  computing 
from   the   time  he  should   have   de- 
livered possession)  ;  Mississippi  Code 
1906,   §    2883    (Where   tenant,    being 
lawfully    notified    by    his    landlord, 
shall  fail  or  refuse  to  quit,  he  shall 
thenceforward   pay   double  the   rent 
which     he     would     otherwise     have 
paid). 

lie  Calif ornia  Civ.  Code,  §  3345  (if 
tenant,  or  person  in  collnsirsn  with 
him,  holds  over  after  demand  and 
one   month's    notice    in    writing    re- 


1498 


HOLDING  OVER  BY  TENANT. 


§213 


Statutes  of  this  character  have  been  regarded  as  penal,  and 
therefore  to  be  strictly  construed.^ ^''^  Accordingly,  the  English 
statute,  which  specifies  tenancies  for  "life,  lives  or  years,"  has 
been  construed  not  to  apply  to  a  weekly  tenancy, ^^^  nor,  ap- 
parently, to  a  tenancy  from  quarter  to  quarter,^  ^^  though  it  does 
apply  to  a  tenancy  from  year  to  year.^^*^  A  statute  referring  to  a 
holding  over  "after  the  expiration  of  the  term"  has  been  held  not 
to  apply  to  a  holding  over  after  a  forfeiture  enforced  by  the  land- 
lord.151 

The  holding  over  must,  by  the  terms  of  most  of  the  statutes,  be 
willful,  and  a  holding  over  under  a  reasonable  mistake  as  to  his 
rights  does  not  make  the  tenant  liable.^^^  The  holding  over  is  not 
other  than  willful  merely  because  the  tenant  cannot  vacate  with- 
out great  inconvenience  and  injury  to  his  business.^^^ 

It  has  been  held  that  a  tenant  is  not  liable  under  such  a  statute 
when  the  holding  over  is  by  a  subtenant,^^'^  nor,  apparently,  when 


quiring  the  possession,  such  person 
must  pay  treble  rent  during  liis 
coiitiniiance  in  possession  p.fter  such 
notice).  See  Watson  v.  Whitney,  23 
Cal.  378;  Tewksbury  v.  Whitney,  25 
Cal.  265;  Kower  v.  Gluck,  33  Cal. 
402.  Montana  Rev.  Codes  1907,  § 
6076  (same). 

14^  Lioyd  V.  Rosbee,  2  Camp.  453 ; 
Robinson  v.  Learoyd,  7  Mees.  &  VV. 
54;  Chapman  v.  Wright,  20  111.  120. 
But  in  Beynroth  v.  Mandeville,  68 
Ky.  (5  Bush.)  584  it  is  said  that 
"the  statute  allowing  double  rent  is 
not  so  much  penal  as  compensatory, 
not  so  much  to  punish  a  delinquent 
tenant  as  to  indemnify  a  disappoint- 
ed landlord  for  the  vexations  and 
losses  resulting  from  a  tortious  de- 
tention of  that  which  it  may  be  often 
very  important  otherwise  to  dispose 
of,  and  from,  also,  expensive  litiga- 
tion. There  is  no  reason,  therefore, 
for  any  other  than  a  rational  and 
consistent  interpretation  of  the  stat- 
ute."    Per  Robertson,  J. 

That  the  action  for  double  rent  is 


in  contract,  see  State  v.  Helms,  101 
Wis.  280,  77  N.  W.  194.  As  between 
the  common-law  forms  of  action, 
debt  is  the  ?^)propriate  remedy.  See 
1  Chitty,  Pleading  (7th  Ed.)    112. 

148  Lloyd  V.  Rosbee,  2  Camp.  453. 

149  Wilkinson  v.  Hall,  3  Bing.  N. 
C.  508. 

isoRyal  V.  Rieh,  10  East,  48.  A 
contrary  view  was  adopted  in  Nix- 
dorff  V.  Wells,  4  Cranch,  C.  C.  350, 
Fed.    Cas.   No.   10,280. 

151  Stuart  V.  Hamilton,  66  111.  253. 

152  Swinfen  v.  Bacon,  6  Hurl.  &  N. 
184;  Poole  v.  Warren,  8  Adol.  &  B. 
582;  Belles  v.  Anderson,  38  111.  App. 
128.  But  where  the  claim  of  a  right 
to  hold  over  was  based  on  a  local 
custom  plainly  not  applicable,  the 
tenant  was  held  liable  for  double 
value.  Hirst  v.  Horn,  6  Mees.  &  W. 
393. 

153  Driver  v.  John  W.  Edrington  & 
Co.,  74  Ark.  12,  84  S.  W.  783. 

154  Rands  v.  Clark,  19  Wkly.  Rep. 
48. 


S  213  LIABILITY  FOR  DOUBLE  RliiNT  OR  VALUE.  1499 

by  his  cotenant,  without  his  assent.i^^  In  one  state,  however,  the 
tenant  was  held  liable  for  double  rent  when  he  could  not  return 
the  possession  to  his  landlord  owing  to  his  expulsion  by  a  wrongs 

doer.i^^ 

The  English  statute  refers  to  a  holding  over  ''after  a  demand 
made  and  notice  in  writing  given,  "^^^  but  this  does  not  neces- 
sitate a  demand  in  addition  to  a  valid  notice  to  quit-^^s  The 
notice  or  demand  need  not  include  a  statement  that  double  value 
or  rent  will  be  claimed.i^^  The  notice  or  demand  may  either 
be  -iven  before  the  expiration  of  the  term,  requiring  the  tenant 
to  relinquish  possession  at  such  expiration,^ «<^  or  may  be  given 
after  the  term,  provided  the  landlord  has  done  no  act  in  the  mean- 
time involving  an  acknowledgment  of  a  continuance  of  the  ten- 
ancy, but  if  the  demand  is  made  after  the  term,  the  landlord  can, 
under  the  English  statute,  recover  double  value  calculated  from 
the  date  of  the  demand  only  and  not  from  the  expiration  of  the 

term.^^^ 

Under  a  state  statute  which  omitted  the  words  of  the  English 
stPtute  "for  so  long  time  as  the  same  are  retained,"  or  equivalent 
words,  but  made  the  tenant  holding  over  in  terms  liable^  for 
"double  the  amount  of  the  annual  rent  agreed  to  be  paid,  it 
was  held  that  he  was  so  liable  for  double  the  full  annual  rent,  how- 
ever  short  the  period  during  which  he  held  over.i«2 

A  provision  making  the  tenant  holding  over  liable  for  "three 

1.5  Drapery.  Crofts,  15  Mees.&W.  a  question  for  the  jury.  Beynroth 
^gg  V.  Mandeville,  G8  Ky.  (5  Bush)  584. 

li^e  Schilling  V.  Holmes,  23  Cal.  i.^  Messenger  v.  Armstrong,  1 
227.  83  Am.  Dec.  111.  Term  R.  53;  Wilkinson  -  CoHey^ 

15TAS  to  necessity  of  demand  un-  Burrow,  2694;  Johnstone  v.  Hudle- 
der  particular  statutes,  see  Salas  v.  stone,  4  Barn.  &  C.  922;  Page  v. 
Davis,  120  Ga.  95,  47  S.  E.  644;  Wil-  More,  15  Q.  B.  684. 
lis  V  Hairell,  118  Ga.  906.  45  S.  B.  ido  Ullman  v.  Herzberg,  91  Ala. 
794;  Chapman  v.  Wright,  20  111.  120;  458,  8  So.  408,  U  L.  R.  A.  619,  24  Am. 
B-^Ue^  V.  Anderson,  38  111.  App.  128;     St.  Rep.  929. 

Thompson    v.    Marsh,    67     Ky.     (4        leo  Cutting   v.    Derby,    2   Wm.   Bl. 
Bush)    423.     It  has   been  held  that    1075. 

under  a  statute  providing  that  the        lei  Cobb  v.  Stokes,  8  East,  358. 
tenant  shall  be  liable  for  double  rent        i-  Ullman    v.    Herzberg     91    Ala. 
if  he   "shall   refuse   to   deliver   pos-    458.  8  So.  408.  11  L.  R.  A.  619,  24  Am 
session."    a   formal    demand    is    not    St.  Rep.  929;    Lvkes  v.  Schwarz.  91 
necessary,  and  the  tenant's  conduct    Ala.  461,  8  So.  7L 
may  amount  to  a  refusal,  this  being 


1500  HOLDING  OVER  BY  TENANT.  §  213 

tim«s  the  value  of  the  rents  which  may  have  accrued"  has  been 
held  to  refer,  not  to  the  rent  reserved,  but  to  the  rental  value, 
which,  in  the  case  of  a  renting  on  shares,  may  be  calculated  with- 
out reference  to  the  value  of  the  crops  actually  raised  by  the 
tenant.^  ^^ 

In  determining  the  value,  under  the  English  statute,  it  has 
been  said  that  the  rental  value  of  the  premises  as  a  whole,  with  all 
incidental  rights,  easements  and  appurtenances,  is  to  be  con- 
sidered, but  in  the  same  ease  it  was  determined  that  this  did  not 
justify  the  inclusion  of  the  value  of  power  supplied  by  the  landlord 
to  the  tenant  under  the  lease,  this  not  being  within  the  meaning 
of  the  phrase  "lands,  tenements  or  hereditaments. "^^^ 

The  landlord  may  waive  his  right  to  recover  under  the  stat- 
ute,i6^  but  it  has  been  held  that  he  does  not,  by  agreeing  with  the 
tenaait  that  the  latter  may  retain  the  premises  for  a  limited  time 
without  incurring  this  liability,  waive  the  right  to  assert  it  in  case 
the  tenant  holds  over  thereafter.iss  Whether  the  acceptance  ot 
single  rent  after  the  right  to  double  value  has  accrued  is  a  waiver 
of  the  latter  right  is,  it  has  been  said,  a  question  of  fact.i*^'^  That 
the  landlord  recovered  judgment  on  an  appeal  bond  given  by  the 
tenant  in  an  action  of  forcible  entry  and  detainer,  and  accepted 
payment  of  the  judgment,  was  held  not  to  bar  recovery  of  double 
rent  under  the  statute.^''* 

The  right  to  recover  double  value  under  the  English  statute 
exists  although  the  landlord  has  already  elected  to  treat  the 
overholding  tenant  as  a  trespasser  by  bringing  ejectment  against 
him.^^^  And  the  recovery  may  be  against  one  other  than  the 
person  to  whom  the  notice  and  demand  were  given,  as  when  there 
was  a  transfer  of  the  possession  after  the  service  of  the  notice.i"^*^ 
It  has  been  decided  that  a  lessee  in  reversion,  not  being  the 
landlord  of  the  prior  lessee,^^i  cannot  recover  under  the  English 
statute.i'^2 

1G2  Hendrick  v.  Cannon,  5  Tex.  24S.  i6?  Alexander  v.  Loeb,  230  111.  454, 

104  Robinson  v.  Learoyd,  7  Mees.  &  82  N.  E.  833. 

ytf    48.  i6'j  Soulsby  V.  Neving,  9  Ea^.t,  310. 

1C5  Rawlinson  v.  Marriott,  16  Law  iToLake  v.  Smith,  1  Bos.  &  P.  (N. 

T.   (N    S.)    207.  R">  174;  Schilling  v.  HolmeP,  23  Cal. 

iwUllman    v.    Herzberg,    91    Ala.  227,  83  Am.  Dec.  111. 

458,  8   So.   408,  11   L.  R.   A.   619,  24  -'^  See  ante,  §  146  d,  at  notes  22, 

Am.  St.  Rep.  929.  23. 

i67Ryal  V.  Rich,  10  East,  48.  it2  Blatchford  v.  Cole,  5  C.  B.   (N. 


§  213  LIABILITY  FOR  DOUBLE  KENT  OR  VALUEJ.  l50l 

If  the  statute  provides  for  double  rent  or  value  in  the  ease 
of  a  "willful"  holding  over,  the  complaint  must,  it  has  been  de- 
cided, allege  that  the  holding  over  was  "willful,"  in  order  to 
authorize  a  recovery  to  such  an  extent.^ '^^ 

b.  After  notice  by  tenant.  It  was  provided  by  St.  11  Geo.  2, 
e.  19,  §  18,  that  in  case  any  tenant  or  tenants  shall  give  notice  of 
an  intention  to  quit  the  premises,  at  a  time  mentioned  in  such 
notice  and  shall  not  accordingly  deliver  up  the  possession  at  the 
time  named  in  such  notice,  the  said  tenant  or  tenants,  or  their 
representatives,  shall  pay  double  the  rent  which  should  otherwise 
have  been  paid,  such  double  rent  to  be  sued  for  and  recovered 
at  the  same  times  and  in  the  same  manner  as  the  single  rent 
could  have  been  recovered.  A  substantially  similar  enactment 
is  to  be  found  in  a  number  of  states. ^'^^  In  two  states  at  least 
the  tenant's  liability  in  such  case  is  for  treble  rent.^'^^ 

The  English  statute  applies  to  any  tenancy,  although  created 
merely  by  parol,^''^  provided  the  tenancy  be  such  as  the  tenant 
has  power  to  terminate  by  notice.^''''  If  the  tenancy  is  one  which 
expires  at  a  certain  time  by  the  terms  of  the  demise,  the  giving 
of  notice  by  the  tenant  "is  a  work  of  supererogation,  which  fur- 
nishes no  rights  and  creates  no  liabilities.  "^'^^ 

S.)    514.     That   the   lessor   may,    In  York,    111   App.    Div.    362,   97  N.    Y. 

spite  of  such  lease  in  reversion,  re-  Supp.  1062. 

cover  double  rent,  see  Alexander  v.        i^*  Arkansas.     Kirby's     Dig.     1904, 

Loeb,  230  111.  454,  82  N.  E.  833.     In  §  4694;  Delaioare  Rev.  Code  1893,  p. 

the   latter   case  there  was  a  provi-  866;  District  of  Columbia  Code  1901, 

sion  that  the  possession  should  not  §    1224;     Illinois,    Hurd's    Rev.    St. 

pass  to  the  second  lessee  so  long  as  1905,  c.  80,  §   3;  Kentucky  St.  1903, 

the  possession  could  not  be  delivered  §    2283;     Mississippi    Code    1906,    § 

to  him  by  renson  of  the  first  lessee,  2883;  Missowi  Rev.  St.  1899,  §  4104 

and  this  is  referred  to  as  a  basis  for  New  Jersey.  2  Gen.  St.  p.  1921,  §  28 

the    decision.     Its    presence    would  New  York  Real  Prop.  Law,   §    199 

seem,    however,    to    be    immaterial.  Soxcth    Carolina    Civ.    Code    1902,    § 

That  the  lease  in  reversion  does  not  -^24. 

prevent    recovery    by    the    lessor    of        ^'^  California    Civ.    Code,    §    3344; 

,..,,,,  4..     14.,^       Montana  Rev.  Codes  1907,  §  6076. 

liquidated  damages  as  stipulated  for 

i"6  Timmins  v.  Rowlinson,  3  Bur- 
a  holding  over  by  the  prior  lessee,  .,  -.„ 

row,  1603. 

see    Thomas   v.   Wightman,    129    111.  i..  johnstone     v.     Hudlestone,     4 

^PP-  3*^5.  Barn.  &  C.  922. 

iT3Eaison  v.  Mulligan,  191  N.  Y.  its  Regan  v.  Fosdick,  19  Misc.  489, 

306.   84   N.   E.    75;    Stevens   v.   New  43  N.  Y.  Supp.  1102. 


1502 


HOLDING  OVER  BY  TENANT.  §  214 


The  notice  must  be  a  valid  notice,  sufficient  to  terminate  the 
tenancy.! "9  Consequently,  a  notice  by  the  tenant  that  he  will 
quit  upon  a  contingency  will  not  render  him  liable  if  he  fails  to 
quit  on  the  happening  of  the  contingency ,!»°  and  a  notice  that  he 
will  quit  "about  January  10th  or  15th"  has  likewise  been  held  not 
to  subject  the  tenant  to  such  a  liability .^s^ 

A  holding  over  by  one  who  entered  under  the  tenant,  after  the 
giving  of  the  notice  by  the  latter,  is  sufficient  to  subject  the  latter 
to  the  double  liability  .^^^ 

§  214.     Cotenant  lessee  holding  over. 

In  case  one  holding  under  a  lessee  is  himself  a  tenant  in  com- 
mon of  the  reversion,  as  when  one  tenant  in  common  takes  a  lease 
of  the  undivided  interest  of  the  other  tenant,i83  or  when  the 
lessee  of  an  undivided  interest  thereafter  acquires  the  other  un- 
divided interest  in  fee,  a  question  may  arise  as  to  the  status  of 
such  tenant  in  case  he  retains  possession  after  the  term  named  in 
the  lease,  that  is,  whether  he  is  to  be  regarded  as  a  tenant  hold- 
ing over,  or  as  a  tenant  in  common  rightfully  in  possession  as  such. 
It  has  in  England  been  decided  that  in  such  case  the  possession 
of  such  cotenant  is,  as  to  the  undivided  half  interest  not  belonging 
to  him,  prima  facie  that  of  a  tenant  at  sufferance,  and  that  he  is 
as  such  liable  in  use  and  occupation,i84  q;^^  there  are  cases  in  this 
country  which  make  a  cotenant  so  continuing  in  possession  liable 
for  rent  or  in  use  and  occupation,  upon  a  presumption,  apparently, 
that  his  continuance  in  possession  is  by  force  of  a  renewal  or  ex- 
tension of  the  prior  lease.^^s  in  two  states,  however,  the  contin- 
ued possession  of  such  cotenant  is  presumed  to  be  based  on  his 
right  as  tenant  in  common,!S6  and  he  has  consequently  in  one  of 

1T9  Johnstone     v.     Hudlestons,     4  iss  Chapin    v.    Foss,    75    111.    28'J; 

Barn.  &  C.  922.  Harry  v.  Ham',  127  Ind.  91,   26  N. 

180  Farrance  V.  Elkington,  2  Camp.  E.    562;     O'Connor    v.    Delaney,    53 
591.  Minn.    247,   54    N.   W.   1108,    39   Am. 

181  Pitkin  V.   Lloyd,   47   Mo.   App.  St.  Rep.   601;   Carson  v.  Broady,  56 
280.  Neb.   648,   77  :'.  W.   80,  71  Am.   St. 

182  Morris    v.    Burton,  1     Houst.    Rep.  G91;   Clayton  v.  McCay,  143  Pa. 
(Del.)    213.  225,  22  Atl.  754. 

183  See  ante,  §  71  c.  ^^^  See     McKay    v.    Mumford,    10 

184  Leigh    V.    Dickeson,  15    Q.    B.    Wend.  (N.  Y.)  351,  25  Am.  Dec.  566. 
I>iv.  60.  In  Mumford  v.  Brown,  1  Wend.   (N. 


§  215  PROCEEDING  TO  RECOVER  POSSESSION.  1503 

such  states  been  held  not  to  be  liable  in  use  and  occupation/ ^'^ 
and  likewise,  such  continued  possession  has  been  decided  not  to 
involve  a  holding  over  for  the  purpose  of  giving  an  option  to  the 
other  cotenant  or  cotenants  to  hold  hirn  for  another  term,  this  view 
being  asserted  even  though  he  was  c.nly  one  of  several  lessees, 
all  of  whom  constituted  a  partnership,  and  such  partnership,  and 
not  he  alone,  retained  the  possession. ^ss 

§  215.     Proceeding  to  recover  possession. 

Originally,  at  common  law,  the  proper  form  of  action  by  a 
landlord  to  recover  possession  from  the  tcJiant  was  a  writ  of  entry 
ad  terminum  qui  praeteriU.^^^  Subsequently,  upon  the  introduction 
of  the  action  of  ejectment,  this  became  the  recognized  mode  of 
recovery  by  the  landlord.  In  England  and  in  most  of  the  states, 
statutes  have  now  been  enacted  providing  for  proceedings  of  a 
summary  character  on  the  part  of  the  landlord  to  recover  pos- 
session from  the  tenant.  An  action  of  ejectment  brought  by  a 
landlord  against  his  tenant  does  not  differ  from  such  an  action 
when  brought  by  any  other  person,  and  a  discussion  of  the  law 
of  ejectment  will  not  here  be  attempted.  The  general  charac- 
teristics  of  a  summary  proceeding  by  a  landlord  to  recover  pos- 
session will  be  discussed  in  a  subsequent  chapter.^ ^'^'^  Equity  haa 
no  jurisdiction  to  expel  a  tenant  at  the  suit  of  the  landlord.i^<^ 

A  transferee  of  the  entire  reversion  has  no  doubt  the  same  right 
to  recover  possession  from  the  tenant  as  has  the  lessor. ^^^  In  the 
case,  however,  of  a  transfer  of  an  undivided  interest  in  the  rever- 

Y.)    52,  19  Am.  Dec.  461,  it  was  de-  369,  52  N.  E.  1097,  43  L.  R.  A.  667; 

cided  that  the  person  remaining  in  Id.,  178  N.  Y.  391,  70  N.  E.  913. 

possession    under    such    circumstan-  is9  See  Stearns,  Real  Actions    (2d 

ces  was  not  liable  for  double  rent  as  Ed.)    129. 

a  tenant  holding  over.     In  Rockwell  i89a  See  post,  chapter  XXVIII. 

V.  Luck,  32  Wis.  70,  it  was  decided  i9o  Torrent  v.  Muskegon   Booming 

that  the  cotenant  remaining  in  pos-  Co.,  22  Mich.   354;   Blain  v.  Bveritt, 

session    was   presumed    to   be    In   as  36  Md.  73.     See  Montague  v.  Hood, 

cotenant,  but  that  this  presumption  78  S.  C.  222,  58  S.  E.  767. 

was  rebutted  by  the  evidence  in  that  191  S?e  Green  v.  Missouri  Pac.  R. 

particular  case.  Co.,  82  Mo.  653,  to  the  effect  that  the 

187  Dresser  v.  Dresser,  40  Barb,  purchaser  at  a  foreclosure  sale  of 
(N.  Y.)  300;  McKay  v.  Mumford,  10  the  reversion  may  sue  for  posses- 
Wend.  (N.  Y.)  351,  25  Am.  Dec.  566.  sion  after  the  expiration  of  the  term. 

188  Valentine  v.  Healey,  158  N.  Y. 


1504 


HOLDING  OVER  BY  TENANT.  §  l>  15 


sion,  all  those  interested  in  the  reversion  should,  it  seems,  or- 
dinarily join  in  the  proceeding  to  recover  possession.i92 

One  to  whom  a  lease  in  reversioni»3  of  the  premises  is  made, 
being  the  person  entitled  to  possession  on  the  expiration  of  the 
prior  term,  would  seem  to  be  the  proper  person,  rather  than  the 
landlord,  to  bring  an  action  of  ejectment  to  recover  the  posses- 
sion from  a  tenant  holding  over.i^^  There  is,  however,  one  de- 
cision that  the  landlord  may  bring  such  action  against  the  over- 
holding  tenant  in  spite  of  the  reversionary  lea.se,!^^  and  so  far 
as  in  any  jurisdiction  the  lessor  may  be  under  an  obligation  to  put 
his  lessee  in  possession,  as  against  a  third  person  holding  without 
right,!''^^  he  should,  it  seems,  be  given  the  right  of  recovering 
the  possession  from  another  wrongfully  withholding  it.  Whether 
a  summary  proceeding  may  be  brought  against  an  over  holding 
tenant  by  a  landlord  who  has  made  a  lease  in  reversion,  or  whether 
it  may  be  brought  by  the  lessee  in  reversion,  or  whether  it  may 

192  In  Holt  V.  Martin,  51  Pa.  499,  in  Blatchford  v.  Cole,  5  C  B.  (N.  S.) 
it  was  decided  that  the  lessor  could  514,  wTiich  case  involved  the  ques- 
recover  the  premises  although  he  tion  of  the  right  of  the  lessee  in  re- 
had  conveyed  an  undivided  interest  version  to  recover  double  value 
in  the  reversion,  the  tenant  not  hav-  against  a  prior  tenant  wrongfully 
ing  attorned  to  the  grantee,  and  the  holding  over  (see  ante,  note  172). 
latter  having  done  no  act  "to  sever  These  dicta  were  as  ft)llows:  "The 
the  possession."  tenant   by   his   contract   engages   to 

193  See  ante,  §  146  d.  give   up  possession  to  the  landlord, 

194  In  Gardner  v.  Keteltas,  3  Hill  As  against  him,  therefore,  the  land- 
(N.  Y.)  330,  38  Am.  Dec.  637,  it  is  lord  must  be  the  person  entitled  to 
said  by  Nelson,  C.  J.,  in  reference  the  possession;"  and,  "as  regards 
to  this  question,  that  "as  to  the  rem-  the  tenant,  the  person  entitled  to 
edy  by  ejectment,  the  suit  must  be  possession  is  the  landlord,  whether 
brought  by  the  lessee,  the  right  of  for  the  purpose  of  enjoying  it  himself 
entry  being  in  him  alone  at  the  or  giving  the  possession  to  a  new 
time."  In  Gazzolo  v.  Chambers,  73  tenant."  A  right  in  the  landlord  to 
111.  75,  it  s  likewise  said  that,  in  maintain  an  action  for  possession, 
such  a  case,  "the  landlord  is  not  en-  in  spite  of  the  lease  in  reversion,  is 
titled  to  possession  and  can  main-  recofrnized  in  general  terms  in  King 
tain  no  action  to  recover  the  prem-  v.  Reynolds,  67  Ala.  229;  Hammond 
ises.  The  right  of  immediate  pos-  v.  Jones,  41  Ind.  App.  32,  83  N.  E. 
cession  is  alone  in  the  lessee,  and  he  257;  Vincent  v.  Defield,  98  Mich.  84, 
must  bring  the  action."  56  N.  W.  1104. 

195  Fox  V.  Macaulay,  12  U.  C.  C.  losa  See  ante,  §§  88,  182  a  (2), 
P.    298.     The    decision    is    in    terms  note    815. 

based  on  the  dicta  of  Cockburn,  C.  J., 


.  216  FORCIBLE  RESUMPTION  OF  POSSESSION.  15C5 

be  brought  by  either,  is  properly  a  question  of  the  construction  of 
the  statute  authorizing  such  proceedings.^^^ 

§  216.     Forcible  resumption  of  possession  by  landlord. 
^   a      General  considerations.     Not  infrequently  the  landlord,  up- 
on the  failure  of  the  tenant  to  relinquish  possession  when  his 
right  thereto  expires,  has  undertaken  to  resume   possession  by 
force,  and  the  question  of  the  nature  of  the  liabilities  to  which 
the  landlord  may  thereby  subject  himself  has  been  the  subject 
of  considerable  controversy.     He  is,  under  the  English  statutes 
of  forcible  entry  and  detainer,  and  under  the  local  statutes  ot 
some  states,  liable  to  a  criminal  prosecution  in  such  a  case,  his  right 
to  possession  being  no   justification  for  his  disturbance   of  the 
public  peace.19^       And  in  many  of  the  states,  the  tenant  can,  m 
case  of  such  forcible  entry  by  the  landlord,  maintain  an  action 
to  recover  possession  of  the  premises  under  the  statutes  of  forcible 
entry  and  detainer,  it  being  usually  considered  that  one  cannot 
defend  such  an  action  by  showing  that  he  was  entitled  to  the 
possession  which  he  thus  forcibly  took.^^^    a  more  difficult  ques- 
tion arises,  however,  when  the  tenant  undertakes  to  assejt  a  pe- 
cuniary liability  in  damages  on  the  part  of  the  landlord  for  thus 
taking  possession. 

There  are  several  decisions  to  the  effect  that  even  though  the 
forcible  entrv  or  forcible  expulsion  would  otherwise  be  ground 
for  recovery' of  damages,  the  lease  may,  by  a  special  provision 
authorizing  such  acts  as  against  a  tenant  holding  over,  relieve 
the  landlord  from  liability.^^^     There  might,  however,  be  some 

msee  post,  §  273  n.  ^   case  the  tenant  resisted  Ms   re- 

loTSee  Y  B.  9  Hen.  6,  f.  19,  pl.  12;  moval  of  the  latter's  furniture  and 
1  Hawkins  Pleas  of  the  Crown,  c.  the  landlord  sought  to  overcome 
64    ?  3;   McClain.  Criminal  Law,  §§    that  resistance.  ^ 

836-841;  Edwick  v.  Hawkes.  18  Ch.  -^  See  Vinson  v.  Flynn^  64  ArK^ 
Div  199-  Turner  v.  Meymott,  1  453,  43  S.  W.  146,  46  S.  W.  186  39 
Sng  158;  Taunton  v.  Costar,  7  L.  R.  A.  415;  Phelps  -  ^-dolph, 
Term  R  431;  Low  v.  Elwell,  121  147  111.  335.  35  N.  E.  243;  Scott  v  Wil- 
mT.?  309  23  Am  Rep  272;  Wood  v.  lis,  122  Ind.  1,  22  N.  E.  786;  Smith 
H  t  4  Johns  (N.\)  313;  Man-  v.  Reeder.  21  Or.  541,  28  Pac  890^15 
ning  V  Brown,  47  Md.  506;  Souter  v.  L.  R.  A.  172;  and  cases  cied  13  Am 
Codman.  14  R.  I.  119.  51  Am.  Rep.  &  Eng.  Enc^  Law  (^^/^^);\^' Jf ' 
Qfti  Tn  Com  V  Haley,  86  Mass.  (4  19  Cyclopedia  Law  &  Proc.  li^t). 
1,  en,  3lt^e  lardlord  was  heM  to  ...  Goshen  ..  People^  ^i,^"'-™' 
te  Uab!e  CTlminally  tor  an  assault    44  Pac.  503;  Page  v.  D«  Puy,  40  ID. 

Xj  and  Ten.  95. 


1506 


HOLDING  OVER  BY  TENANT. 


§216 


question  whether  a  license  to  use  force  in  contravention  of  the 
provisions  of  the  forcible  entry  and  detainer  acts  is  valid.^o^ 

b.  Liability  for  entry  on  the  land.  The  eases  are  usually  to 
the  effect  that  the  mere  entry  on  the  land  by  the  reversioner  in 
such  ease,  although  forcible,  does  not  constitute  a  trespass,  giv- 
ing a  right  of  action  in  damages,  in  view  of  the  well  recognized 
rule  that  a  plea  of  liberum  tencmentum  or  title  in  the  defendant  is 
a  good  defense  to  an  action  of  trespass  quare  clausum  fregit.  The 
fact  that  the  statutes  make  such  an  entry  a  criminal  offense,  and 
give  the  person  entered  upon  a  right  to  recover  the  possession 
of  which  he  has  thus  been  deprived,  cannot  be  regarded  as  au- 
thorizing a  recovery  of  damages  on  account  of  such  entry.-^^ 

That  the  reversioner,  after  entering,  commits  some  wrongful 
act,  does  not  make  him  a  trespasser  ah  ijiitio,  since  the  principle 
of  the  Six  Carpenters'  Case-*^^  applies  only  wlien  there  is  a 
special  authority  given  by  the  law  to  do  some  particular  act  which 
would,  apart  from  such  special  authority,  be  a  trespass,  and  not 
to  the  case  of  one  exercising  a  right  which  appertains  to  all  per- 
sons,203  such  as  that  of  the  owner  of  land  to  enter  thereon-^o* 


506;  Fabri  v.  Bryan,  80  111.  18^; 
Kavanagh  v.  Gudge,  7  Man.  &  G. 
316. 

200  See  Spencer  v.  Commercial  Co., 
30  Wash.  520,  71  Pac.  53;  Edwick  v. 
Hawkes,  18  Ch.  Dlv.  199.  And  com- 
pare Fifty  Associates  v.  Rowland, 
59  Mass.   (5  Cush.)   214. 

201  Taunton  v.  Costar,  7  Term  K. 
431;  Argent  v.  Durrant,  8  Term  R. 
403;  Turner  v.  Meymott,  1  Bing. 
158;  Harvey  v.  Brydges,  14  Mees.  & 
W.  437;  Burling  v.  Read,  11  Q.  B. 
904;  Pollen  v.  Brewer,  7  C.  B.  (N. 
S.)  371;  Meriton  v.  Coombes,  9  C. 
B.  787;  Beddall  v.  Maitland,  17  Ch. 
Div.  174;  Beattie  v.  Mair,  10  L.  R. 
Ir.  208;  Vinson  v.  Flynn,  64  Ark. 
453,  43  S.  W.  146,  46  S.  W.  186,  29  L. 
R.  A.  415;  Tribble  v.  Frame,  30  Ky. 
(7  J.  J.  Marsh.)  599,  23  Am.  Dec. 
439;  Manning  v.  Brown,  47  Md.  506; 
Moore  v.  Mason,  83  Mass.  (1  Allen) 
406;   Low  v.  Elwell,  121  Mass.  309, 


23  Am.  Rep.  272;  Smith  v.  Detroit 
Loan  &  BIdg.  Ass'n,  115  Mich.  340, 
73  N.  W.  395,  39  L.  R.  A.  410,  69 
Am.  St.  Rep.  575;  Fuhr  v.  Dean,  26 
Mo.  lie,  69  Am.  Dec.  484;  Krevet  v. 
Meyer,  24  Mo.  107  (but  see  Emer- 
son V.  Sturgeon,  59  Mo.  404);  Sterl- 
ing V.  Warden,  51  N.  H.  217,  12  Am. 
Rep.  80;  Weeks  v.  Sly,  61  N.  H.  89; 
State  V.  Morgan,  59  N.  H.  322;  Wilde 
V.  Cantillon,  1  Johns  Cas.  (N.  Y.) 
123;  Hyatt  v.  Woods,  4  Johns  (N.  Y.) 
150;  Livingston  v.  Tanner,  14  N.  Y. 
(4  Kern.)  64  (dictum);  Overdeer  v. 
Lewis,  1  Watts  &  S.  (Pa.)  90,  37 
Am.  Dec.  440;  Willoughby  v.  North- 
eastern R.  Co.,  32  S.  C.  410,  11  S.  E. 
339;  Rush  v.  Aiken  Mfg.  Co.,  58  S. 
C.  145,  36  S.  E.  497,  79  Am.  St.  Rep. 
836;  Souter  v.  Codman,  14  R.  I.  119, 
15  Am.  Rep.  364. 

202  8  Coke,  146  a. 

20,1  Johnson  v.  Hannahan,  1  Strob. 
Law  (S.  C.)   313.     See  Esty  v.  Wil- 


§216 


FORCIBLE  RESUMPTION  OF  POSSESSION. 


1507 


Though,  as  above  stated,  the  weight  of  authority  is  otherwise, 
there  are  occasional  decisions  to  the  effect  that  a  forcible  entry  by 
the  reversioner  does  make  him  liable  in  trespass  or  its  equivalent 
for  breaking  the  close,-°^  this  view  being  ordinarily  based  on 
the  theory  that,  since  this  is  illegal  as  being  forbidden  by  the 
statutes  of  forcible  entry  and  detainer,  there  must  be  a  right  to 
recover  damages  on  account  thereof,  while  occasionally  the  fact 
that  there  is  a  summary  proceeding  provided  by  statute  for  the 
recovery  of  possession  is  referred  to  as  showing  a  legislative  in- 
tent that  he  shall  not  take  possession  by  force.-°^ 


mot,  81  Mass.  (15  Gray)  168;  Turner 
V.  Footman,  71  Me.  218;  1  Smith's 
Leading  Cases  (8th  Am.  Ed.)  at  p. 
263. 

20 1  Johnson  v.  Hannahan,  1  Strob. 
Law  (S.  C.)  313. 

203  Larkin  v.  Averj',  23  Conn.  304; 
Mason  v.  Hawes,  52  Conn.  12,  52  Am. 
Rep.  552;  Entleman  v.  Hagood,  95 
Ga.  390,  22  S.  E.  545;  Reeder  v. 
Purdy,  41  111.  279;  Brock  v.  Berry,  31 
Me.  293;  Thiel  v.  Bull's  Ferry  Land 
Co.,  58  N.  J.  Law,  212,  33  Atl.  281 
(Only  nominal  damages  recoverable. 
And  compare  Mershon  v.  Williams, 
62  N.  J.  Law,  779,  42  Atl.  778); 
Whitney  v.  Brown,  75  Kan.  678,  90 
Pac.  277,  121  Am.  St.  Rep.  446;  Dus- 
tin  V.  Cowdry,  23  Vt.  631;  Griffin  v. 
Martel,  77  Vt.  19,  58  Atl.  788.  The 
earlier  Vermont  case  is  to  a  consid- 
erable extent  based  on  a  misreading 
of  the  old  authorities  on  the  English 
statutes  of  forcible  entry,  as  is 
shown  in  the  article  in  4  Am.  Law 
Rev.  hereafter  referred  to.  Hillary 
V.  Gay,  6  Car.  &  P.  284,  a  nisi  prius 
decision  by  Lord  L3-ndhurst,  so  far 
as  it  is  to  be  regarded  as  a  decision 
that  trespass  quare  clausum  will  lie 
in  such  case,  must  be  regarded  as 
overruled  by  the  later  English  deci- 
sions. 

In  Fort  Dearborn  IjOdge  v.  Klein, 


115  111.  177,  3  N.  E.  279,  56  Am.  Rep. 
133,  it  is  decided  that  a  peaceable 
entry  will  not  entitle  the  tenant  to 
maintain  trespass  quare  clausum, 
it  being  said,  however,  that  a  forcible 
entry  will  do  so.  But  the  law  in 
that  state  is  that  even  a  peaceable 
entry  by  the  person  entitled  to  pos- 
session is  within  the  forcible  entry 
and  detainer  statute  (Phelps  v.  Ran- 
dolph, 147  111.  335,  35  N.  E.  243),  and 
since  the  view  that  trespass  quare 
clausum  will  lie  is  based  chiefly  on 
the  fact  that  there  is  a  violation  of 
such  statute,  there  seems  some  in- 
consistency. 

In  Emerson  v.  Sturgeon,  59  Mo. 
404,  it  is  decided  that  the  plea  of 
liberum  tenem,entum  is  no  defense 
to  an  action  of  trespass  quare  claus- 
um, and  this  seems  in  effect  to  over- 
rule the  cases  cited  ante,  note  301, 
deciding  that  the  tenant  forcibly 
ejected  by  the  landlord  cannot 
bring  that  action. 

206  Mason  v.  Hawes,  52  Conn.  12, 
52  Am.  Rep.  552;  Enthelman  v.  Ha- 
good, 95  Ga.  390,  22  S.  E.  545;  Thiel 
v.  Bull's  Ferry  Land  Co.,  58  N.  J. 
Law,  212,  33  Atl.  281.  That  the  ten- 
ant has  delivered  the  key  to  the 
landlord,  the  tenant  retaining  the 
possession,  gives  the  landlord  no 
right  in  this  regard  which  he  would 


1508  HOLDING  OVER  BY  TENANT.  §216 

c.  Liability  for  injury  to  tlie  person.  In  jurisdictions  in  wliieh 
the  forcible  entry  on  land  is  itself  regarded  as  constituting  a  cause 
cf  action  in  trespass  quarc  clausum,  any  violence  employed  against 
the  tenant  or  his  family  could,  no  doubt,  be  alleged  in  aggravation 
of  damages,207  though  ordinarily  there  would  be  a  separate  count 
inserted  for  the  assault.  But  in  most  jurisdictions,  as  above  stated, 
tliere  can  be  no  recovery  as  for  trespass  on  the  land  in  such 
case,  and  the  question  arises  whether  there  is  nevertheless  a  dis- 
tinct right  of  recovery  for  an  assault  made  upon  the  person  of  the 
tenant  or  a  member  of  his  family  in  entering  on  the  premises  or  in 
expelling  such  person  therefrom.  In  the  numerous  cases  above 
referred  to  as  denying  any  right  of  recovery  for  the  entry  on  the 
land,  there  is  no  suggestion  of  a  distinct  cause  of  action  arising 
from  the  use  of  force  against  the  tenant,  provided  such  force  is 
no  greater  than  is  necessary  for  the  purpose  of  effecting  an  en- 
trance, or  of  expelling  the  tenant  if  he  refuses  to  leave,  and  there 
are  cases  which  in  terms  deny  any  such  liability  on  the  part  of 
the  landlord.208  It  is  said  that  the  landlord,  "not  being  liable 
to  the  tenant  in  an  action  of  tort  for  the  principal  act  of  entry 
upon  the  land,  cannot  be  liable  to  an  action  for  the  incidental  act 
of  expulsion,  which  the  landlord,  merely  because  of  the  tenant's 
unlawful  resistance,  has  been  obliged  to  resort  to  in  order  to  make 

otherwise  not  have.     Griffin  v.  Mar-  890,  15  L.  R.  A.  172  (dictum);   Sout- 

tel,  77  Vt.  19,  58  Atl.  788.  er  v.  Codman,  14  R.   I.   119,  51  Am. 

207  Sedgwick,  Damages,  §  929.  Rep.  364;  Dawson  v.  Marsh,  74 
See  Taylor  v.  Cole,  1  H.  Bl.  555;  Conn.  498,  51  Atl.  529.  That  the 
Davison  v.  Wilson,  11  Q.  B.  890.  tenant   mistakenly  believes   that  he 

208  Harvey  v.  Brydges,  14  Mees.  &  is  entitled  to  possession  is  imma- 
W.  437;  Blades  v.  Higgs,  10  C.  B.  terial  in  this  regard.  Allen  v.  Keily, 
(N.  S.)  713;  Burling  v.  Read,  11  Q.  17  R.  I.  731,  24  Atl.  776,  16  L.  R.  A. 
B.  904;  Meriton  v.  Coomhes,  9  C.  B.  798,  33  Am.  St.  Rep.  905.  For  an 
787;  Vinson  v.  Flynn,  64  Ark.  453,  admirable  discussion  of  the  whole 
43  S.  W.  146,  46  S.  W.  186,  39  L.  subject  in  support  of  the  view  that 
R.  A.  415;  Stearns  v.  Sampson,  59  the  tenant  has  no  such  right  of 
Me.  568.  8  Am.  Rep.  442;  Manning  action,  and  a  review  of  the  authori- 
v.  Brown,  47  Md.  506;  Jackson  v.  ties  up  to  that  time,  see  an  article 
Farmer,  9  Wend.  (N.  Y.)  201;  Sterl-  by  Joseph  Willard,  Esq.,  in  4  Am. 
ing  V.  Warden,  51  N.  H.  217,  12  Am.  Law  Rev.  429,  referred  to  by  Gray, 
Rep.  80  (semble);  Low  v.  Elwell,  C.  J.,  in  the  case  cited  in  the  next 
121  Mass.  309,  23  Am.  Rep.  272;  note,  as  rendering  superfluous  fur- 
Stone  v.  Lahey,  133  Mass.  426;  ther  consideration  of  the  cases. 
Smith  V.  Reeder.  21  Or.  541,  28  Pac. 


§216 


FORCIBLE  RESUMPTION  OF  POSSESSION.  15C9 


his  entry  effectual,  "209  ^nd  the  same  principle  would  be  applicable 
to  the  force  incidental  to  an  entry  against  the  tenant's  resistance. 
But  there  are  English  cases  which  support  a  dilTerent  view,  to  the 
effect  that,  while  the  law  does  not  support  an  action  against  the 
reversioner  for  the  forcible  entry  on  his  own  land,  it  will  recognize 
the  statutes  of  forcible  entry  and  detainer  to  the  extent  of  holding 
that  a  possession  obtained  by  force  in  defiance  of  these  statutes 
does  not  justify  acts  such  as  would  otherwise  be  ground  for  a  re- 
covery in  damages  ■,-^^  and  to  the  same  effect,  apparently,  are  cases 
in  this  country,  which  assert  that,  if  the  reversioner  enters  peace- 
ably, he  may  thereafter  expel  the  tenant  or  remove  his  furniture, 
thereby  implying  that  he  cannot  do  so  if  he  enters  otherwise  than 
peaceably .211  There  are  also  authorities  to  the  effect  that  an  entry 
is  necessarily  forcible  if  followed  by  a  forcible  expulsion  of  the 
person  in  possession,  although  the  actual  entrance  on  the  premises 
was  effected  without  the  use  of  force.212  There  seems,  indeed, 
no  substantial  distinction  between  the  case  of  one  who  "slips  in" 
without  opposition,  and  then  forcibly  expels  the  person  in  pos- 
session, and  that  of  one  who  effects  an  entrance  by  forcibly  over- 
coming resistance.  The  latest  of  the  English  cases  referred  to 
adopts  this  view,  that  the  landlord  is  liable  for  a  forcible  expul- 
sion, even  though  there  was  no  force  in  the  actual  entry,  since 
this  is  made  forcible  by  the  subsequent  expulsion,2i3  and  there  are 

200  Per  Gray,  C.  J.,  in  Low  v.  El-  N.  H.  10,  53  Am.  Dec.  228.     And  see 

well,  121  Mass.  309,  23  Am.  Rep.  272.  Wliittaker  v.  Perry,  38  Vt.  107. 

210  Newton  v.  Harland,  1  Man.  &  212  Bacon's  Abr.,  Forcible  Entry 
G.  644;  Beddall  v.  Maitland,  17  Ch.  (B),  citing  Dalton's  Justice,  299; 
Div.  174;  Edwick  v.  Hawkes,  18  Cb.  Lambarde's  Eirenarcba,  chap.  4,  p. 
Div.  199.  The  decision  in  the  142  (Ed.  1610),  quoted  in  PoUociv, 
first  case  was  in  effect  by  a  divided  Torts  (5th  Ed.)  p.  359;  Seitz  v. 
court,  and  in  the  last  two,  by  one  Miles,  16  Mich.  456;  Willard  v.  War- 
judge  alone  (Fry,  J.).  This  view  is  ren,  17  Wend.  (N.  Y.)  257;  Winter- 
approved   in   Lightwood,    Possession  field  v.  Stauss.  24  Wis.  394. 

of    Land,    141,    and    is    referred    to,        ^''  Edwick  v.  Hawkes,  18  Ch.  Div. 

.,,      ,                 1         ,.         „„„„!    ,r.  199.  supra,  where  Fry,  J.,  says  that 

without  approval  or  disapproval,  m  '       ^     '                   /'      '       *;   ^      . 

„        „^„    o,-„  II   the   operation   of  the   statute   is 

Pollock,  Torts   (5th  Ed.)   358,  359.  «     ^   ^     .,,                    .     .       .^■ 

'  confined   to  the  mere  act  of  getting 

211  Stearns  v.  Sampson,  50  Me.  568,  ^^^^    ^^^   ^^^,^^^^^    ^^^    ^^^^^    ^^   ^^^ 

8    Am.    Ren.   442;    Smith    v.   Detroit  property  in  question  peaceably,  the 

Loan  &  Bldg.  Ass'n,   115  Mich.  340,  statute  is  evidently  not  adequate  to 

73  N.  "W.  395,  39  L.  R.  A.  410,  69  Am.  meet  the  evil  which  it  was  intended 

St.  Rep.  575;    Whitney  v.  Swett,  22  to    repress." 


1510 


HOLDING  OVER  BY  TENANT. 


§216 


several  cases  in  this  country  which,  without  considering  the  mode 
of  entry,  decide  that  the  reversiojier  is  liable  in  damages  if  he 
forcibly  expels  the  tenant.-^^ 

For  any  excess  of  force  used  in  expelling  the  tenant  the  rever- 
sioner would,  no  doubt,  in  all  jurisdictions,  be  liable  in  dam- 
ages,2i5  and  the  possibility  that  the  jury  might  find  that  such  ex- 
cessive force  was  used  seems  to  render  the  forcible  eviction  of  a 
tenant  holding  over  his  term  a  somewhat  precarious  proceeding 
in  any  jurisdiction. 

An  entry  in  the  absence  of  the  tenant  and  his  family  has  been 
regarded  as  a  peaceable  entry,  which  gives  a  valid  possession  to 
the  reversioner,2i6  even  though  the  entry  involves  the  breaking 
open  of  doors,"^'^  so  as  to  entitle  him  to  use  force  in  excluding 


214  Entelman  v.  Hagood,  95  C^a. 
390,  22  S.  E.  545;  Reeder  v.  Purdy, 
41  111.  279;  Joaes  v.  Pereira,  13  La. 
Ann.  102;  Boniel  v.  Block,  44  La. 
Ann.  514,  10  So.  S69;  Flaherty  v. 
Andrews,  2  E.  D.  Smith  (N.  Y.)  529; 
Marchand  v.  Haber,  16  Misc.  322,  37 
N.  Y.  Supp.  952;  Wamsganz  v.  Wolff, 
86  Mo.  App.  205  (semble) ;  Thiel  v. 
Bull's  Ferry  Land  Co.,  58  N.  J.  Law, 
212,  33  Atl.  281  (but  see  Mershon 
V.  Williams,  62  N.  J.  Law,  779,  42 
Atl.  778);  Rush  v.  Aiken  Mfg.  Co., 
58  S.  C.  145,  36  S.  E.  497,  79  Am.  St. 
Rep.  836  (semble) ;  Larkin  v.  Avery, 
23  Conn.  304;  Spencer  v.  Commer- 
cial Co.,  30  Wash.  520,  71  Pac.  53. 
And  see  Sharp  v.  Kinsman,  18  S. 
C.  108,  where  it  it  is  said  that  tJie 
landlord  has  no  right  to  eject  the 
overholding  tenant. 

215  Vinson  v.  Flynn.  64  Ark.  453, 
43  S.  W.  146,  46  S.  W.  186,  39  L.  R. 
A.  415;  Sampson  v.  Henry,  28  Mass. 
(11  Pick.)  379,  30  Mass  (13  Pick.) 
36;  Whitney  v.  Swett,  22  N.  H.  10, 
53  Am.  Dec.  228:  Gregory  v.  Hill, 
8  Term  R.  299. 

216  Davis  V.  Burrell.  10  C.  B.  821; 
Winn  v.  State.  55  Ark.  360.  18  S.  W. 
375;   Marsh  v.  Bristol,  65  Mich.  37S. 


32  N.  W.  645;  Todd  v.  Jackson,  26 
N.  J.  Law  (2  Dutch.)  525;  Smith  v. 
Detroit  Loan  &  Bldg.  Ass'n,  115 
Mich.  340,  73  N.  W.  S?5,  39  L.  R.  A. 
410,  69  Am.  St.  Rep.  575;  Bliss  v. 
Johnson,  73  N.  Y.  529,  29  Am.  Rep. 
500:  Mussey  v.  Scott,  32  Vt.  82,  76 
Am.  Dec.  151;  Sage  v.  Harpending, 
49  Barb.  (N.  Y.)  166,  34  How.  Pr.  1. 
But  Wilder  v.  House,  48  111.  279,  is 
contra,  and  in  Mason  v.  Hawes,  52 
Conn.  12.  52  Am.  Rep.  552,  it  was 
even  held  that  the  landlord  was 
liable  in  damages  though  he  entered 
in  the  tenant's  absence  and  removed 
the  latter's  furniture  carefully,  and 
did  not  prevent  the  latter  from  re- 
entering. 

21T  Mershon  v.  Williams,  62  N.  J. 
Law,  779,  42  Atl.  778;  Hoske  v. 
Gentzlinger,  87  Hun,  3,  33  N.  Y. 
Supp.  747;  Mussey  v.  Scott,  32  Vt. 
82,  76  Am.  Dec.  151. 

That  breaking  open  a  door  is  not 
a  forcible  entry,  see  Smith  v.  Reeder, 
21  Or.  541,  28  Pac.  890,  15  L.  R.  A. 
172;  and  Williams  v.  Taperell,  8 
Times  Law  R.  241,  contains  a  dic- 
tum to  that  effect  by  Wills,  J. 

Entry  by  unlocking  a  door,  in  the 
absence  of  the  tenant  and  his  family. 


§  216  FORCIBLE   RESUMPTION    OF    POSSESSION.  ISH 

the  tenant  afterwards  seeking  to  re-enter,  without  thereby  sub- 
jecting himself  to  liability  in  damages.  There  are  statements  to 
be  found,  however,  to  the  effect  that  an  entry  by  breaking  open  a 
door  is  within  the  forcible  entry  and  detainer  statute,2i8  and, 
under  such  a  view,  a  possession  so  obtained  would  seem  not  to 
justify  the  forcible  exclusion  of  the  tenant,  in  jurisdictions  in 
which  it  is  held  that,  because  of  such  statutes,  a  forcible  entry  will 
not  justify  his  forcible  expulsion.^i^  In  jurisdictions  where  the 
landlord's  right  to  expel  the  tenant  forcibly  is  recognized,- ^o  the 
former  has,  no  doubt,  the  right  to  forcibly  exclude  the  latter,  if 
he  attempts  to  re-enter  after  the  lajidlord  has  taken  possession 
in  the  tenant's  absence.^^^ 

d.  Liability  for  removal  of  chattels.  The  question  of  the  land- 
lord's  liability  in  damages  for  removal  of  the  tenant's  personal 
chattels  on  the  premises  would  ordinarily  be  determined  by  the 
same  considerations  as  his  liability  for  injuries  to  the  person.  If 
he  is  regarded  as  being  liable  in  trespass  quare  clausum,  the  re- 
moval of  the  chattels  would  presumably  be  a  matter  of  aggrava- 
tion. And  if  he  would  be  liable  for  the  forcible  removal  of  the 
tenant  or  members  of  his  family  by  force,  he  would,  it  seems,  be 
liable  for  the  removal  of  the  tenant's  chattels.222 

is  not  a  forcible  entry.     Smith  v.  De-  referred  to  approvingly  in  Mershon 

troit  Loan  &  Bldg.  Ass'n,  115  Mich.  v.  Williams,   62  N.  J.  Law,   779,   42 

340,  73  N.  W.  395,  39  L.  R.  A.  410,  Atl.     778.     That    trespass     may'   be 

69  Am.  St.  Rep.  575.     See  Com.  Dig.,  maintained    by   a   landlord   who   re- 

Forciblc  Entry    (A3).  entered     by    forcing    open     a    door 

21s  Anonymous,    2    Rolle,    2;    Com.  against    the    tenant    returning,    see. 

Dig.,    Forcible    Entry    (A    2).     And  also,  Mussey  v.  Scott,  32  Vt.  82,  76 

see  Willard  v.  Warren,  17  Wend.  (N.  Am.  Dec.  151. 
Y.)   257.     In  Whittaker  v.  Perry,  38        220  See  ante,  at  note  208. 
Vt.  107,  it  is  apparently  the  view  of        221  See  Tribble  v.  Frame,    30   Ky. 

the    court   that  the   breaking   in   of  (7  J.   J.  Marsh.)    599,   23   Am.   Dec. 

the  door  when  the  tenant  is  in  the  439;  Freeman  v.  Wilson,  16  R.  I.  524, 

house  is  a  forcible  entry.  17  Atl.  921. 

219  In  Todd   V.    Jackson,   26   N.    J.        222  Mason  v.  Hawes,   52  Conn.    12, 

Law    (2    Dutch.)    525,   it  is   decided  52  Am.  Rep.  552;   Wilder  v.  House, 

that  even  if  any  entry  by  breaking  48  111.  279.     In  Griffin  v.  Martel,  77 

open  a   door   is  within  the   statute,  Vt.    19,    58    Atl.    788,    he    was    held 

the  landlord    obtains  thereby  a  pos-  liable  under  a  count  in  trespass  de 

session    sufficient    to    support    tres-  honis    asportotis.    the    other    counts 

pass    against    the   tenant   returning  being,  it  seems,  in  trespass  q.  c.  f. 
to   the    premises.     This   case   is   re- 


J512  HOLDING  OVER  BY  TENANT.  §217 

In  several  eases  it  has  been  decided  that,  if  the  landlord  enters 
peaceably,  he  may  remove  the  tenant's  chattels  without  incurring 
any  liability  for  so  doing,223  ^nd  tliis  accords  with  the  view  that, 
after  a  peacible  entry,  he  may  expel  the  tenant  by  force,224  with 
the  difference  that  the  removal  of  the  chattels  could  not  relate 
back  so  as  to  render  the  entry  forcible.^^s  In  jurisdictions  where 
the  landlord  has  a  right  to  expel  the  tenant  even  after  a  forcible 
entry, ^sti  he  would,  no  doubt,  have  the  right  to  remove  the  latter 's 
furniture  in  a  like  case.^^^ 

The  landlord  is  liable  for  any  unnecessary  injury  to  such  chat- 
tels,228  ]3^t  is  not,  it  would  seem,  in  any  case  liable  for  injury 
caused  by  their  exposure  to  the  weather  after  their  removal, 
such  injury  being  avoidable  by  the  tenant  by  having  them  placed 
under  shelter.-^^ 

§  217.    Rights  of  landlord  after  resuming  possession. 

After  the  landlord  lias  re-entered  without  using  force,  he  has 
such  possession  as  will  justify  an  action  of  trespass  qnnre  clanMim 
by  him  against  the  tenant  if  the  latter  remains  in  possession,23o 

223  Todd  V.  Jackson,  26  N.  J.  L^w  Adams  v.  Adams,  7  Phila.  (Pa.)  160; 
(2  Dritch.)  525;  Merslion  v.  Wil-  Overdeer  v.  Lewis,  1  Watts  &  S. 
liams,  62  N.  J.  Law,  779,  42  Atl.  778;  (Pa.)  90,  37  Am.  Dec.  440;  Kellam 
Smith  V.  Detroit  Loan  &  Bldg.  Ass'n,  v.  Janson,  17  Pa.  467.  Compare 
115  Mich.  340,  73  N.  W.  395,  39  L.  post,  §§  216  d,  285,  at  note.3  543-546. 
R.  A.  410,  69  Am.  Rep.  575;  Whitney  229  Weeks  v.  Sly,  61  N.  H.  89.  But 
V.  Swett,  22  N.  H.  10,  53  Am.  Dec.  Wetzel  v.  Meranger,  85  111.  App.  457, 
228;  Mussey  v.  Scott,  32  Vt.  82,  76  is  to  the  effect,  apparently,  that  the 
Am.  Dec.  151;  Losch  v.  Pickett,  36  landlord,  tho'ugh  entitled  to  remove 
Kan.  216,  12  Pac.  822;  Weeks  v.  Sly,  the  goods,  is  liable  if  he  places  them 
61  N.  H.  89;  Ish  v.  Marsh,  1  Neb.  where  they  will  be  exposed  to  injury 
Unoff.  864,  96  N.  W.  58.  by  the  weather. 

224  See  ante,  at  note  208.  2.-?o  Butcher  v.  Butcher,  7  Barn.  & 

225  See   ante,   at  notes  202,  212.  c.  399;   Hey  v.  Moorehoiise.  6  Bin;?. 

226  See  ante,  at  note  208.  N.  C.  52;  Whittaker  v.  Perry,  38  Vt. 

227  See  Weeks  v.  Sly,  61  N.  H.  89;  107;  Stearns  v.  Sampson,  59  Me. 
Freeman  v.  Wilson,  16  R.  I.  524,  17  568,  8  Am.  Rep.  442.  And  see  state- 
Atl.  921;  Souter  v.  Codman,  14  R.  I.  ments  referred  to  ante,  §  15  a,  at 
119,  51   Am.  Rep.  364.  notes  557,  565,  that  not  until  entry 

228  Vinson  v.  Flynn,  64  Ark.  453,  can  the  landlord  maintain  trespass 
43  S.  W.  146,  46  S.  W.  186.  39  L.  R.  against  the  tenant  at  sufferance,  im- 
A.  415;  Whitney  v.  Swett.  22  N.  H.  plying  that  he  can  do  so  after 
10,  53  Am.  Dec.  228;  Mershon  v.  Wil-  entry. 

liams,  62  N.  J.  Law,  779.  42  Atl.  778; 


§217 


RIGHTS  AFTER  RESUMING  POSSESSION. 


1513 


in  accordance  with  the  rule  that  where  two  persons  are  upon 
land  claiming  adversely  to  one  another,  the  possession  will  be  im- 
puted to  the  one  who  has  the  title.-^^  And  he  would,  it  seems, 
have  the  right  to  maintain  an  action  for  assault  if  the  tenant 
undertakes  to  expel  him  by  force. 

The  landlord  may  ordinarily,  it  seems,  after  a  peaceable  re- 
entry, use  force  to  exclude  the  tenant  seeking  to  re-enter,23  2 
though  in  some  jurisdictions  the  forcible  retention  of  possession 
after  a  peaceable  entry  is  regarded  as  being  within  the  forcible 
entry  and  detainer  laws.^'^'s 

Presumably,  even  in  jurisdictions  where  the  landlord  is  held  li- 
able for  a  forcible  expulsion  of  the  tenant,  he  would  incur  no  liabil- 
ity if,  after  obtaining  entrance  peaceably,  he  dismantles  the  house 
in  such  a  way  as  to  render  it  uninhabitable,  as  by  removing  a  door 
or  a  window,  provided  he  does  not,  in  so  doing,  commit  any  tres- 
pass upon  the  persons  of  the  tenant  or  his  family,  or  upon  the 
chattels  belonging  to  them,234  a.nd  he  might,  it  would  seem,  use 
force  in  case  a  tenant  attempts  to  interfere  with  him  in  so  doing.^ss 


28iLitt.  §  701;  Lightwood,  Posses- 
sion of  Land,  36;  Pollock  &  Wright, 
Possession,  24;  Reading  v.  Royston, 
2  Salk.  423;  Winter  v.  Stevens,  91 
Mass.  (9  Allen)  526.  See  remarks 
of  Maule,  J.,  in  Jones  v.  Chapman,  2 
Exch.  821,  quoted  by  Lord  Salborne 
in  Lows  V.  Telford,  1  App.  Gas.  414. 

232  See  ante,  at  note  216. 

283  See  Phelps  v.  Randolph.  147  111. 
335,  35  N.  E.  243;  Winterfield  v. 
Stauss,  24  Wis.  394;  and  cases  cited 
13  Am.  &  Eng.  Enc.  Law  (2d  Ed.) 
763. 

284  In  Jones  v.  Foley  [1891]  1  Q. 
B.  730,  it  was  decided  that  the  land- 
lord entering  peaceably  was  not 
liable  for  injuries  to  the  tenant's 
furniture  caused  by  the  act  of  the 
former  in  removing  the  roof.  But 
in  Preiser  v.  V/ielandt,  48  App.  Div. 
569,  62  N.  Y.  Supp.  890,  it  was  held 
that  the  landlord  was  liable  in  dam- 
ages if,  by  tearing  down  the  house 


on  the  leased  premises  after  the  end 
of  the  tenancy,  the  tenant's  sick  wife 
was  so  disturbed  and  agitated  as 
to  become  mortally  ill.  There  is  no 
discussion  of  the  question,  but  the 
theory  seems  to  be  that  the  tenant's 
right  of  possession  is  extended  by 
illness  in  his  family  rendering  re- 
moval hazardous  to  the  patient. 
Citing  Herter  v.  Mullen,  159  N.  Y. 
28,  53  N.  E.  700,  44  L.  R.  A.  703,  70 
Am.  St.  Rep.  517,  ante,  note  46, 
v/hich,  however,  involved  a  different 
question. 

285  See  Steams  v.  Sampson,  59  Me. 
568,  8  Am.  Rep.  442;  Mugford  v. 
Richardson,  88  Mass.  (6  Allen)  76, 
83  Am.  Dec.  617;  Harris  v.  Gilling- 
ham,  6  N.  H.  11,  23  Am.  Dec.  701. 
But  in  Com.  v.  Haley,  86  Mass.  (4 
Allen)  318,  it  was  held  that  the  land- 
lord was  criminally  liable  for  as- 
sault if  he  resisted  the  interfereno« 
of  the  tenant. 


CHAPTER  XXII. 

STIPULATIONS  FOR  RENEWAL  OR  EXTENSION. 

8  218.  Renewal  and  extension  distinguished. 

219.  Additional  term  as  part  of  original  term. 

220.  Sufficiency  and  construction  of  stipulation  for  renewal. 

221.  Stipulations  for  perpetual  renewal. 

222.  Election  by  lessee  to  extend. 

a.  Retention  of  possession. 

b.  Requirement  of  express  notice. 

223.  Election  by  lessee  to  renew  — Notice  to  lessor. 

224.  Election  by   lessor. 

225.  Compliance  by  lessee  with,  covenants  and  conditions. 

226.  Form  of  renewal. 

227.  Terms  of  new  tenancy  — Applicability  of  former  stipulations. 

228.  Appraisement  to  ascertain  rent. 

229.  Qualified  right  to  renewal  or  extension. 

230.  Persons  to  whom  stipulations  available. 

231.  Persons  against  v/hom  stipulations  available. 

232.  Covenant  by  sublessor  to  renew. 

233.  Breach  of  covenant  to  renew — Remedies. 
284.  Trusts  arising  from  renewal. 

§  218.    Renev/al  and  extension  distinguished. 

The  validity  of  a  covenant  by  the  lessor  to  "renevr"  the  lease, 
that  is,  upon  the  expiration  of  the  lease,  to  make  another  lease  to 
the  same  tenant  which  will  have  the  effect  of  creating  another 
tenancy  in  him  for  a  further  period,  has  been  uniformily  recog- 
nized, both  in  England  and  this  country.  To  be  distinguished 
from  such  a  provision  for  renewal,  is  a  proAdsion  for  an  "exten- 
sion" of  the  term  for  a  certain  time  at  the  tenant's  option, 
"the  privilege  of  a  further  term,"  as  it  is  sometimes  expressed. 
A  proAdsion  for  an  extension  does  not,  as  does  a  covenant  to 
renew,  involve  an  agreement  to  make  a  lease  for  an  additional 
term,  but  rather  serves  to  extend  the  operation  of  the  original 


I  218  RENEWAL  AND  EXTENSION  DISTINGUISHED.  1515 

lease,  so  as  to  make  this  latter  a  lease  not  only  for  the  term 
originally  named,  but  also  for  the  additional  term,  subject  to  the 
lessee's  election  as  to  whether  the  tenancy  shall  continue  during 
such  latter  term,  and  consequently  no  further  lease  is  necessary 
in  order  to  vest  the  leasehold  in  the  lessee  for  such  additional 
term  in  case  he  elects  in  favor  of  a  continuance.^  Such  a  lease 
for  a  certain  term,  with  a  provision  giving  the  lessee  a  right  of 
extension  for  another  term  named,  may  be  regarded  in  either 
one  of  two  ways:  (1)  As  creating  a  leasehold  estate  in  the  lessee 
of  a  duration  measured  by  the  sum  of  the  two  terms,  with  an  op- 
tion in  the  lessee  to  terminate  it  at  the  end  of  the  first  named  term, 
either  by  relinquishing  possession,  or  failing  to  give  notice  of  a 
desire  to  continue  possession,  or  otherwise,  according  as  the  lan- 
guage conferring  the  privilege  may  provide,^  or  (2)  as  creating 
two  estates  in  the  lessee,  one  to  commence  upon  the  termination  of 
the  other,  provided  all  conditions  precedent  as  to  election  and 
notice  are  satisfied.^ 

1  Brown  v.   Samuels,  24  Ky.  Law  volve   the   view   that,   by   the   mere 

Rep.  1216,  70  S.  W.  1047;    Holley  v.  subsequent    exercise    of    the    option. 

Young,    66   Me.    520;    Willoughby  v.  an  estate  for  the  additional  period  is 

Atkinson  Furnishing  Co.,  93  Me.  185,  transferred    to    the    lessee,    a    legal 

44    Atl.    612;    Kramer    v.    Cook,    73  impossibility.    It   would    seem.       To 

Mass.    (7   Gray)    650;    De    Friest   v.  transfer  an  estate,  a  conveyance  of 

Bradley,  192  Mass.  346,  78  N.  E.  467;  some  sort  is  necessary.     See  post,  at 

Clarke    v.    Merrill,    51    N.    H.    415;  note  160. 

Swan  V.  Inderlied,  187  N.  Y.  872,  80        2  See  Chretien  v.  Doney,   1  N.    Y. 

N.  E.  195;   House  v.  Burr,  24  Barb.  (1  Comst.)    419;  Walker  v.  Wadley, 

(N.  Y.)    525;    Voege  v.  Ronalds,   83  124  Ga.  275,  52  S.  E.  904;  Montgom- 

Hun,  114,  31  N.  Y.  Supp.  353;  Caley  ery  v.   Hamilton  County  Com'rs,   76 

V.  Thornquist,  89    Minn.    348,   94   N.  Ind.  362,  40  Am.  Rep.  250;    Heffron 

W.  108;  McClelland  v.  Rush,  150  Pa.  v.    Treber    (S.   D.)    110    N.   W.    781. 

57,    24    Atl.    354,    16    L.    R.    A.    554;  See,  as  tending  to  favor  such  a  view, 

Quinn  v.  Valiquette,  80  Vt.   434,   68  Hemming  v.  Brabason,  0.  Bridg.  p. 

Atl.   515,   14   L.   R.   A.    (N.   S.)    962.  1,  1  Lev.  45,  1  Keb.  154;  3  Preston's 

But  in  Ward  v.   Hasbrouck,  169   N.  Conveyancing,   75. 
Y.  407,  62  N.  E.  434,  it  was  said,  in        3  This   view   is    perhaps   indicated 

considering  the  applicability  of  the  in    Kramer    v.    Cook,    73    Mass.     (7 

statute   of   frauds,   that   "an   option  Gray)    550;    Willoughby  v.  Atkinson 

for  an  extension,"   existing  in   con-  Furnishing  Co.,  93  Me.  185,  44  Atl. 

nection  with  a  lease  for  four  months,  612;    Sheppard    v.    Rosenkrans,    109 

"did    not    render    the    agreement    a  Wis.  58,  85   N.  W.  199,  53  L.  R.  A. 

lease  for  a  longer  period  than  four  650,  83  Am.  St.  Rep.  886. 
months."     This   would    seem   to    in- 


1516 


STIFULATIO^^S  FOR  RENEWAL  OR  EXTENSION. 


§1^18 


In  a  number  of  cases,  what  might  well  be  regarded  as  a  cove- 
nant to  renew,  as  apparently  looking  towards  the  making  of  a 
new  lease  by  the  lessor,  has  been  regarded  as  in  effect  a  stipula- 
tion for  an  extension,  vesting  in  the  lessee  an  estate  extending 
to  the  end  of  the  second  period  named,  without  any  necessity 
of  the  making  of  a  second  lease.^  The  same  courts,  however, 
which  have  thus  in  effect  regarded  a  stipulation  for  a  renewal 
as  equivalent  to  a  provision  for  an  extension,  would  presumably 
recognize  and  enforce  a  stipulation  which  in  terms  called  for  the 
making  of  a  new  lease  and  expressly  stipulated  that  until  this  was 
done  no  legal  interest  should  vest  in  the  lessee  for  the  additional 
term.5  Conceding  this,  the  rule  in  those  states  would  seem  to  be 
one  of  construction  merely,  that  is,  that  unless  a  clear  intention 


4Holley  V.  Young,  66  Me.  520; 
Perry  v.  Rockland  &  R.  Lime  Co., 
94  Me.  325,  47  Atl.  534;  Ferguson  v. 
Jackson,  180  Mass.  557,  62  N.  E.  965 
(semble);  Wood  v.  Edison  Elec.  Il- 
luminating Co.,  184  Mass.  523,  69 
N.  E.  364,  100  Am.  St.  Rep.  573; 
Ranlet  v.  Cook,  44  N.  H.  512,  84  Am. 
Dec.  92;  Caley  v.  Thornquist,  89 
Minn.  348,  94  N.  W.  10S4;  Harding 
V.  Seeley,  148  Pa.  20,  23  Atl.  118.  So 
it  has  been  decided  that  the  lessee 
had  a  term  for  the  full  period  named 
when  there  was  merely  an  option 
"of  renting"  the  property  for  the 
further  term  (Walker  v.  V>'adley, 
124  Ga.  275,  52  S.  E.  904),  when 
there  was  a  covenant  "to  let  and 
demise  for  a  further  term"  (Trus- 
tees of  Congregation  of  Sons  of 
Abraham  v.  Gerbert,  57  N.  J.  Law, 
395,  31  Atl.  383),  when  the  lessee  was 
given  the  "privilege  of  releasing" 
(Willoughby  v.  Atkinson  Furnishing 
Co.,  93  Me.  185,  44  Atl.  612),  when 
the  lessors  agreed  to  "renew"  (Ran- 
let V.  Cook,  44  N.  H.  512,  84  Am. 
Dec.  98),  and  when  the  lessee  was 
given  the  "privilege  of  renewal"  (In- 
surance &  Law  Bldg.  Co.  v.  National 
Bank,  71  Mo.  58;  Kentucky  Lumber 


Co.  v.  Newell,  32  Ky.  Law  Rep.  396, 
105   S.   W.   972). 

In  Kollock  V.  Scribner,  98  Wis. 
104,  73  N.  W.  777,  it  is  said  by  Mar- 
shall, J.,  that  "there  is  much  re- 
spectable authority  to  the  effect  that 
the  words  'renew'  and  'extend' 
should  be  construed  in  accordance 
with  their  ordinary  meaning.  Obvi- 
ously, one  means  to  prolong  or  to 
lengthen  out;  the  other,  to  make 
over,  to  re-establish,  or  to  rebuild; 
and  those  courts  and  writers  that 
have  construed  them  accordingly 
certainly  have  the  best  of  the  argu- 
ment, if  the  judicial  construction  is 
to  follow  the  true  definitions  of  the 
words.  We  apprehend  that  no  one 
would  seriously  contenl  that  an 
agreement  to  renew  a  note  would 
be  satisfied  otherwise  than  by  mak- 
ing a  new  note  in  place  of  the  old 
one.  It  would  seem  that  the  con- 
struction adhered  to  in  some  juris- 
dictions, that  to  renew  is  equivalent 
to  extend,  violates  the  rules  of  lan- 
guage to  reach  a  judicial  construc- 
tion out  of  harmony  with  the  uni- 
versally accepted  meaning  of  the 
words  as  defined  by  lexicographers." 
B  See    Kentucky    Lumber    Co.    v. 


s  218  RENEWAL  AND  EXTENSION  DISTINGUISHED.  15 17 

Otherwise  shall  appear,  a  provision  which  is  in  terms  a  covenant 
for  renewal  is  to  be  construed  as  a  provision  for  extension. 

When  the  words  "renewal,"  "reletting,"  and  the  like,  occur- 
ring in  a  stipulation  of  this  character,  are  given  their  ordinary 
meaning,  the  lessee  has,  until  the  renewal  lease  is  executed,  no  le- 
gal inte'rest  beyond  the  original  term,  as  distinct  from  a  right  of 
action  for  breach  of  the  covenant,  or  for  specific  performance,^ 
though  a  stipulation  for  a  renewal  has  been  asserted  to  constitute 
an  equitable  defense  to  an  action  by  the  lessor  for  possession 
after  the  lapse  of  the  original  term,  under  a  statute  allowing 
equitable  defenses  J  That  such  a  covenant  does  not  give  a 
legal  interest  seems  to  be  by  implication  recognized  in  those 
c^ses  upholding  the  right  of  the  lessee  to  specific  performance 
of  a  covenant  to  make  a  renewal  lease,  since  such  relief  would 
be  entirely  superfluous  if  the  covenant  itself  conferred  such 
an  interests ^ 

Occasionally  it  has  been  said  that  a  provision  giving  to  the  les- 
see the  privilege  of  continuing  in  possession  after  the  term  named 
is  equivalent  to  a  covenant  for  renewal.^     Whether,  however,  such 

Newell,  32  Ky.  Lav/  Rep.  39G,  105  S.    of   the   term,   the   lessee   desired   to 
■^    g-^2  retain   the    premises,   he    might   do 

6  Piatt  V.  Cutler,  75  Conn.  183,  52    so    provided    he    gave    six    months' 
Atl.   819;    Hunter  v.    Silvers,   15   111.    notice,    was    construed    as    a    cove- 
174;  Sutherland  v.  Goodnow,  108  HI.    nant  to  make  a  renewal  lease,  and 
523' 48  Am.  Rep.  560;  Finney  V.  Cist,    as   consequently   not    constituting  a 
34  Mo.  303,  84  Am.  Dec.  82;  Swank    lease  for  the  whole  time,  including 
V.  St.  Paul  City  R.  Co.,  61  Minn.  423,    the  renewal  term. 
63  N   W.  1088;  Kollock  v.  Scribner,        7  Ferguson  v.   Jackson,  180  Mass. 
98  Wis.  104,  73  N.  W.  776;  Orton  v.    557,  62  N.   E.  965;    Pittsburg  Drove 
Noonan,  27   Wis.   272;    Tscheider  v.    Yard   Co.'s  Appeal,   123   Pa.   250,   16 
Biddle, '4    Dill.    58,    Fed.    Cas.    No.    Atl.   625.     In  McAdoo  v.  Galium,  86 
14,210;' Fenny  v.  Child,  2  Maule  &  S.    N.  C.  419;   Barbee  v.  Greenberg,  144 
255;  Andrews  v.  Marshall  Creamery    N.  C.  430,  57  S.  E.  125,  it  is  decided 
Co.'  118  Iowa,  595,  92  N.  W.  706,  60    that  while   a  covenant  for   renewal 
L    R    A.  399,' 96  Am.  St.  Rep.  412;     is  not  itself  a  renewal  so  as  to  vest 
Werlein  v.  Jans^en,   112  La.   31,  36    a  subsequent  term  in  the  lessee,  it 
So   216.     In  Steen  v.  Scheel,  46  Neb.    gives    him    an   equity    which,    while 
252    64  N.  W.  957,  it  was  so  decided    not  enforcible  before  a  justice  of  the 
where  the  lease  gave  the  lessee  "the    peace,  will   constitute  a  defense  to 
refusal  of  leasing  said  property  for    summary  proceedings, 
two  years  longer;"  and  in  James  v.        7a  See  post,  §  233. 
Kibler's  Adm'r,  94  Va.  165,  26  S.  E.        s  Crawford  v.  Kastner,  26  Hun  (N. 
417,  a  provision  that  if,  at  the  end    Y.)  440;  Western  New  York  &  P.  R. 


1518  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.         §  219 

a  provision  is,  in  any  particular  case,  so  to  be  regarded,  would 
seem  to  be  a  question  of  construction.^  Ordinarily  in  this  coun- 
try, such  a  provision  would  not  be  construed  as  contemplating  the 
making  of  a  new  lease. 

§  219.     Additional  term  as  part  of  original  term. 

In  a  number  of  cases  the  question  has  arisen  whether  a  lease  for 
a  certain  term,  with  a  right  of  renewal  for  another  term,  was  a 
lease  for  the  sum  of  the  two  terms,  for  the  purpose  of  determin- 
ing whether  it  was  within  the  operation  of  a  particular  statute.  It 
has  bee.n  decided,  for  the  purpose  of  determining  the  applicability 
of  a  statute  restricting  the  period  for  which  a  lease  can  be  made, 
that  the  lease  is  invalid  if  the  sum  of  the  original  term  and  of  the 
renewal  term  exceed  the  period  named  in  the  statute,i°  ^j^j  ^  like 
view  has  occasionally, ^^  though  not  always,i2  been  asserted  in  de- 
termining the  applicability  of  the  Statute  of  Frauds.  Likewise, 
such  a  lease  has  been  regarded  as  within  a  recording  act  which 
purports  to  cover  only  leases  for  a  period  longer  than  the  orig- 
inal term.^2 

A  statutory  provision  that  a  tenant  under  a  lease  for  more  than 
a  period  named  should  have  a  right  to  purchase  the  reversion  has 
been  held  to  apply  to  a  lease  for  a  shorter  period  than  that  named, 
when  there  was  a  right  of  renewal  which  might  extend  the  hold- 
ing beyond  that  period.^-*  And  conversely,  a  prohibition  of  the 
assignment  of  a  lease  of  less  than  a  certain  period  has  been  held 
not  to  apply  when  there  was  such  a  right  of  renewal. ^^     In  one 

Co.  V.  Rea,  83  App.  Div.  576,  81  N.  See  Ward  v.   Hasbrouck,  169  N.  Y. 

Y.   Siipp.   1093.  407,   62   N.   E.   434. 

9  See  Orton  v.  Noonan,  27  Wis.  13  Toupin  v.  Peabody,  162  Mass. 
272;  Kolloclv  v.  Scribner,  98  Wis.  473,  39  N.  E.  280;  Leominster  Gas- 
104,  73  N.  W.  776.  And  ante,  at  light  Co.  v.  Hillery,  197  Mass.  267, 
notes  4,  5.  83  N.   E.   870,  15  L.  R.  A.    (N.   S.) 

10  Moore  v.  Clench,  1  Ch.  Div.  447;  243,  125  Am.  St.  Rep.  361.  Contra, 
Hart  V.  Hart,  22  Barb.   (N.  Y.)    606.    Doe  d.  Kinkstan  Bids;.  Soc.  v.  Rains- 

11  Schmitz    V.    Lauferty,    29    Ind.    ford,  10  U.  C.  Q.  B.  236. 

400;   WilMams  v.  Mershon,  57  N.  J.        i*  See  post,  §  2C9,  at  note  105. 
Lg-w,    242,    30    Atl.    619     (semble);         le  Jones  v.  Hamm   (Mo.  App.)    74 

Rosen  v.  Rose,  13  Misc.   565.   34  N.  S.    W.    150;    Jone^    v.    Kansas    City 

Y.    Snpp.    4G7;    Hess    v.    Martin,    36  Board  of  Trade,  99  Mo.  App,  433,  78 

Misc.  561,  73  N.  Y.  Supp.  946.  S.  W.   843. 

12  Hand  v.  Hall,  2  Exch.  Div.  355. 


§  220  SUFFICIENCY  AND  CONSTRUCTION.  1519 

state,  on  the  other  hand,  the  view  has  been  taken  that  the  period 
for  which  a  renewal  could  be  obtained  should  not  be  added  to 
that  of  the  original  term  for  the  purpose  of  making  up  a  term  of 
five  years  within  the  statute  allowing  a  redemption,  under  the 
summary  proceeding  statute,  in  the  case  of  such  a  term.^^ 

Where  a  privilege  of  extension,  as  distinct  from  a  right  of  re- 
newal, is  given,  since  the  lease  creates  both  the  original  term  and 
the  period  of  the  extension,!"^  the  lease  would  seem  to  be  invalid  if 
it  is  oral  merely,  and  the  sum  of  the  two  periods  exceeds  the 
limits  imposed  by  the  Statute  of  Frauds,  even  though  the  first 
term  named  is  within  those  limits.  There  are  decisions  to  that 
effect,^^  but  the  contrary  view  has  also  been  taken.^^ 

§  220.     Sufiiciency  and  construction  of  stipulation  for  renewal. 

Occasionally,  without  the  use  of  the  word  "renew,"  or  of  ordi- 
nary words  of  agreement  or  covenant,  the  language  of  the  lease 
has  been  construed  as  equivalent  to  a  covenant  for  renewal.  Such 
has  been  the  construction  placed  on  a  lease  "with  the  option  of 
renewal, "20  -with  "the  privilege  of  six  years  more  at  the  same 
rent, "21  with  "the  refusal"  of  the  premises,-^  or  Avith  the  re- 
fusal of  "leasing"  the  premises^^  for  a  longer  time  named,  or 
giving  the  lessee  "the  option  to  take  the  premises"  for  a  longer 
time.24 

It  has  been  decided  that  when  the  covenant  is  in  terms  merely  to 
renew,  without  more,  the  renewal  lease  must  be  for  the  same 

18  Bokee    v.    Hamersley,    16    How.  performed  within  the  year.  The  rule 

Pr.  (N.  Y.)  461.  has,   it  is  submitted,  no  proper  ap- 

17  See  ante,  at  note  1.  plication  to  a  conveyance  as  distin- 

18  Hand   v.   Osg-ood,  107   Mich.   55,  guished  from  a  contract. 

64  N.   W.   867,  30   L.  R.   A.   379,    61  20  Lewis  v.  Stephenson,  67  Law  J. 

Am.     St.     Rep.     312;      Donovan     v.  Q.  B.  296,  78  Law  T.   (N.  S.)   165. 

Schofnhoefen  Brew.  Co..  92  Mo.  App.  21  Cawford    v.    Kasfner,    26    Hun 

341;    Bateman    v.    Maddox,    86    Tex.  (N.  Y.)   440,  63  How  Pr.  90. 

546,  26  S.  "W.  51.  22  Tracy   v.    Albany    Exch.    Co.,    7 

18  Ward  V.   Hasbrouclc,   169   N.  Y.  N.    Y.    (3    Seld.)    472,    57    Am.    Dec. 

407,  62  N.  E.  434.     The  decision  is  538;  McAdoo  v.  Galium,  86  N.  C.  419. 

arrived  at  by  applying  the  rule  that  23  Steen  v.  Scheel,  46  Neb.  252,  64 

an  agreement  is  not  within  the  pro-  N.   W.   957. 

vision  of  the  statute  of  frauds  ap-  21  Sutherland  v.  Goodnow,  108  111. 

plying   to    contracts    not  to   be   per-  528,  48  Am.  Rep.  560. 
formed  within  a  year,  if  it  might  be 


1520  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.         §  220 


length  of  term  as  the  original  lease/^^*  and  that  it  must  contain 
the  same  stipulations.^"  Consequently,  such  a  clause  is  not  bad 
for  uncertainty.  So  a  clause  "with  the  privilege  of  renting  same 
for  three  years  longer"  has  been  regarded  as  giving  a  right  of  re- 
newal on  the  terms  of  the  original  leaser'  as  has  a  provision  that 
at  the  expiration  of  the  term  the  lessee  should  have  the  refusal 
of  the  premises  for  a  time  named.^s  But  when  the  language  of 
the  covenant  or  stipulation  is  such  as  to  exclude  any  inference  that 
the  terms  are  to  be  the  same  as  before,  it  is  unenforcible  if  it  does 
not  name  any  terms.  Thus  a  covenant  to  renew,  the  rent  to  be 
proportioned  to  the  valuation  of  the  promises,  is  void  if  there  is  no 
provision  for  determining  the  valuation  ;29  and  the  same  view  has 
been  taken  of  a  provision  that  the  lessee  is  "to  have  the  prefer- 
ence of  renting  said  property  so  long  thereafter  as  it  shall  be  rent- 
ed for  a  store. ""^  A  provision  that  the  lessor  shall  "let"  the  land 
at  the  expiration  of  the  term  to  the  lessee,  without  naming  any 
term,3i  and  one  that  the  renewal  shall  be  "for  such  time  as  shall 


25  Tracy  v.  Albany  Exch.  Co.,  7  N. 
Y.  (3  Seld.)  474,  57  Am.  Dec.  538; 
Kollock  V.  Scribner,  98  Y/is.  104,  73 
N.  W.  776;  Lewis  v.  Stephenson,  78 
Law  T.  (N.  S.)  185.  See  Phillips  v. 
Reynolds,  20  Wash.  374,  55  Pac.  316, 
72  Am.  St.  Rep.  107.  But  in  Wal- 
lace V.  DorrliB,  218  Pa.  534,  67  Atl. 
858,  it  was  considered,  apparently, 
that  such  a  provision  for  renewal 
called  for  a  renewal  for  such  a 
length  of  time  as  might  subsequent- 
ly be  agreed  upon.  In  Austin  v. 
Newham  [1908]  2  K.  B.  167,  a  lease 
"for  a  period  of  twelve  months  with 
the  option  of  a  lease  after  the  afore- 
said time  at  the  rer.tal  of  thirty 
pounds  per  annum"  was  construed 
to  entitle  the  lessee  to  a  further 
lease  of  at  least  one  year,  the  words 
"per  annum"  shov/ing  an  intention 
to  this  effect. 

26  Rutgers  V.  Hunter,  6  Johns.  Ch. 
(N.  Y.)  215;  Cunningham  v.  Pattee, 
99  Mass.  248;  Ranlet  v.  Cook,  44  N. 
H.  512,  84  Am.  Dec.  92;  McAdoo  v. 
Galium,  86  N.  C.  419;   Tracy  v.  Al- 


bany Exch.  Co.,  7  N.  Y.  (3  Seld.) 
472,  57  Am.  Dec.  538;  Hughes  v. 
Windpfennig,  10  Ind.  App.  122,  37 
N.  E.  432;  Steen  v.  Scheel,  46  Neb. 
252,  64  N.  W.  957;  Cairns  v.  Llewl- 
lyn,  2  Pa.  Super.  Ct.  599;  Kollock 
V.  Scribner,  98  Wis.  104,  73  N.  W. 
776;  Lewis  v.  Stephenson,  78  Law 
T.  (N.  S.)  165;  Price  v.  Assheton,  1 
Younge  &  C.  82;  Rickards  v.  Rick- 
ards.  2  Younge  &  C.  Ch.  427. 

27  Hughes  V.  Windpfennig,  10 
Ind.  App.  122,  37  N.  E.  432. 

28  Tracy  v.  Albany  Exch.  Co.,  7  N. 
Y.  (3  Seld.)  472;  McAdoo  v.  Galium, 
86  N.  C.  419. 

2!>Pray  v.  Clark,  113  Mass.  283; 
Morrison  v.  Rossignol,  5  Cal.  -64; 
Streit  V.  Fay,  230  111.  319,  82  N.  E. 
648,  120  Am.  St.  Rep.  304.  And  see 
ante,  §  12  c  (3)  (d),  at  notes  144- 
147. 

30  Delashrautt  v.  Thomas,  45  Md. 
140. 

31  Abeel  v.  Radcliff.  13  Johns.  (N. 
Y.)  297,  7  Am.  Dec.  377. 


§  220  SUFFICIENCY  AND  CONSTRUCTION.  1521 

prove  mutually  profitable,  "^ 2  have  also  been  regarded  as  too  in- 
definite. 

A  mere  "preference"  or  "first  right"  in  the  lessee  as  to  a  sub- 
sequent lease  of  the  premises,^^  such  as  that  given  by  a  stipulation 
that  the  lessee  may  retain  possession  upon  his  giving  the  same 
rent  as  the  lessor  "might  be  able  to  obtain  from  other  parties;" 
has  been  regarded  as  unenforcible,^^  though  in  one  state  a  cove- 
nant for  renewal  in  case  the  lessee  was  willing  "to  give  as  much 
as  any  other  responsible  party  will  agree  to  give ' '  was  held  to  fix 
the  amount  of  rent  with  sufficient  certainty.^^  A  lease  for  one 
year  "with  privilege  of  longer"  gives  the  lessee  no  rights  after 
the  year.26  An  "option"  in  the  lessee  to  renew  on  such  terms  as 
may  be  satisfactory  to  both  parties  is  obviously  nugatory,  it  giv- 
ing him  merely  the  right  to  enter  into  a  new  contract  with  the 
owner  of  the  reversion,  which  right  he  would  have  had  without 
any  such  provision.^'^ 

It  has  in  one  case  been  decided  that  a  stipulatio.n,  giving  the 
lessee  "the  privilege  of  keeping  and  occupying  said  lots  for  such 
further  time,  after  the  expiration  of  said  term,  as  said  party  of  the 
second  part  (the  lessee)  shall  choose  or  elect,"  is  invalid  as  not 
fixing  the  period  during  which  the  lessee  may  retain  the  posses- 
sion, and  not  even  authorizing  the  lessee  to  fix  the  period.^^  Ref- 
erence is  also  made  in  the  opinion  in  this  case  to  the  fact  that  no 
term  was  named  by  the  lessee  during  the  life  of  the  lessor,  the 
rule  being  stated  to  be  that  when  the  ascertainment  of  the  dura- 
tion of  a  term  depends  on  matter  ex  post  facto,  that  matter  must 
occur  in  the  lifetime  of  both  the  lessor  and  lesse^.^^  The  same 
case  apparently  decides  that  such  a  stipulation,  regarded  as  an  op- 
tion for  an  extension,  creates  merely  a  tenancy  at  will  after  the 
end  of  the  original  term,  on  the  ground  that  a  lease  at  the  will  of 

32  Lloyd  V.  Worrell,  37  How.  Fr.  37  Pause  v.  Atlanta,  98  Ga.  92,  26 
(N.  Y.)    75.  S.  E.  489,  58  Am.  St.  Rep.  290;   Duf- 

33  Reed  V.  Campbell,  43  N.  J.  Eq.  field  v.  Whitlock,  26  Wend.  (N.  Y.) 
406.  See  Crawford  v.  Morris,  5  55,  37  Am.  Dec.  246;  Howe  v.  Larkln, 
Grat.    (Va.)    90.  119  Fed.  1005. 

34  Gelston  v.  Sigmund,  27  Md.  335.        3s  Western  Transp.  Co.  v.  Lansing, 
ssArnot  v.  Alexander,  44  Mo.  25,    49  N.  Y.  499. 

100  Am.  Dec.  252.  39  See  ante,  §  12  c  (2)    (b),  at  note 

36  Howard   v.   Tomlcich,    81   Miss.    118. 
703,    33  So.   493. 

L   and  Ten.  96. 


1522  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.  §  221 

the  lessee  is  at  the  will  of  the  lessor  as  well,  a  doctrine  which,  as 
we  have  before  stated,  is  open  to  question.^*^  There  seems  no  rea- 
son, on  principle,  why  an  agreement  for  a  renewal  lease,  to  be 
made  for  such  a  term  as  the  lessee  may  name,  should  not  be  up- 
held.^i  jj2  one  state  a  provision  for  an  extension  for  such  a  pe- 
riod as  the  lessee  desires  has  been  given  effect,  without,  hov/ever, 
any  clear  statement  as  to  the  exact  interest  thereby  created  in  the 
lessee.^2 

A  lease  for  three  years  "with  the  privilege  of  five  years"  has 
been  construed  to  give  the  privilege  of  five  years  in  all,  and  not 
of  five  years  in  addition  to  the  three  years.^^ 

A  covenant  or  stipulation  to  give  a  renewal  lease  may  be  con- 
tained in  an  instrument  separate  from  the  original  instrument  of 
lease,'*'*  and  it  may  be  made  subsequently  thereto.  Such  a  subse- 
quent stipulation  must,  at  least  if  not  under  seal,  be  supported  by 
a  consideration,  though  it  is  sufficient  for  this  purpose  if  the  other 
party  is  bound  to  accept  a  renewal. ^^  In  the  case  of  a  renewal 
clause  in  the  original  lease,  there  can  be  no  question  of  considera- 
tion, the  requirements  in  this  regard  being  fully  satisfied  by  the 
acceptance  of  the  lease  and  the  consequent  assumption  by  the  les- 
see of  the  burden  of  the  stipulations  therein.^^ 

§  221.     Stipulations  for  perpetual  renewal. 

The  validity  of  a  covenant  for  perpetual  renewal,  that  is,  of  a 
covenant  for  a  renewal  upon  the  termination  of  the  first  term,  and 

40  See  ante,  §  13  a  (1).  458.     So  a  lease  for  one  year  "and 

41  See  comments  by  Lord  Ellen-  the  privilege  of  four  years"  was  held 
borough.  C.  J.,  in  Iggulden  v.  May,  to  give  the  privilege  of  four  years 
7  East,  237,  on  Bridges  v.  Hitchcock,  in  all.  Willis  v.  Weeks,'  129  Iowa, 
5  Bro.  Pari.  Gas.  6.  In  Hyde  v.  525,  105  N.  W.  1012.  And  to  the 
Skinner,  2  P.  Wms.  196,  the  term  of  same  effect  is  Connors  v.  Clark,  79 
the    renewal    lease    seems    to    have  Conn.  100,  63  Atl.  951. 

been  at  the  option  of  the  lessee,  and  44  Hunter   v.    Silvers,    15    111.   174; 

the  court  consented  to  compel  a  re-  Winters  v.  Cherry,  78  Mo.  344. 

newal  for  no  mqre  than  twenty-one  45  Robertson    v.    St.    John,    2    Bro. 

years,  that  being  "the  usual  term  for  Ch.   140;    Dowling  v.   Mill,   1   Madd. 

leasing."  541. 

42  Sweetser  v.  McKenney,  65  Me.  46  Monihon  v.  Wakelin,  6  Ariz. 
225;  Holley  v.  Young,  66  Me.  520.  225,  56  Pac.  735;   Spear  v.  Orendorf, 

43Gensler   v.    Nicholas,   151   Mich.    26  Md.  37. 
529,  15   Det.  Leg.  N.  13,  115  N.  W. 


§l^:il 


PERPETUAL  RENEWAL.  1523 


for  another  renewal  upon  tlie  termination  of  the  term  created  by- 
such  first  renewal,  and  so  on  indefinitely,  so  long  a^  the  holder  of 
the  term  then  existing  may  choose  to  call  for  a  renewal,  has  been 
frequently  recognized.'*"  In  at  least  one  state,  however,  such  a 
covenant  has  been  decided  to  be  invalid  under  the  rule  against 
perpetuities.^^  Conceding  that  the  rule  referred  to  is  directed 
against  the  unrestricted  creation  of  future  limitations  which  "are 
not  destructible  by  the  persons  for  the  time  being  entitled  to  the 
property  subject  to  the  future  limitation,  except  with  the  concur- 
rence of  the  individual  interested  in  that  limitation,  "^9  on  the 
ground  that  the  effect  of  the  existence  of  such  a  limitatio.n,  not  to 
vest  until  the  remote  future,  is  to  render  both  the  present  and  the 
future  interests  uncertain  in  value  and  so  to  affect  their  vendibil- 
ity,^*^ it  is  difficult  to  perceive  its  applicability  to  a  covenant  to 
create  an  estate  to  commence  in  the  future,  when  the  right  to  call 
for  the  creation  of  such  an  estate  is  in  the  person  alone  who  has 
the  present  estate  in  possession.  The  case  of  a  covenant  to  renew 
at  the  demand  of  the  person  who  has  the  vested  interest  under 
the  lease  is  entirely  different  from  a  covenant  to  convey  to  one 
who  has  no  vested  interest,  which  has  been  decided  to  be  within 
the  rule,  if  not  to  be  performed  within  the  time  prescribed  by  the 
rule.^i  "An  estate  for  years  -with  a  perpetual  covenant  for  re- 
newal is,  so  far  as  questions  of  remoteness  are  concerned,  substan- 
tially a  fee,  and  as  such  it  is  regarded.  If  the  right  of  renewal, 
however,  is  not  within  the  control  of  those  having  vested  interests 
under  the  lease,  and  if  the  interest  of  tlie  person  within  whose 

47  Hare  v.  Burges,  4  Kay  &  J.  45 ;  to  the  effect  that  such  a  covenant  Is 

London  &  S.  W.  R.  Co.  v.  Gomm,  20  invalid  is  quoted  in  Brush  v.  Beech- 

Ch.    Div.    562;     Muller    v.    Traftord  er,  110  Mich.   597,  68  N.  W.  420,  64 

[1901]  1  Ch.  54;  Banks  v.  Ha<?kie,  45  Am.  St.  Rep.  373,  without,  however, 

Md.  207;   Boyle  v.  Peabody  Heights  any  decision  of  the  question. 

Co.,  46  Md.  623;  Blaclvinore  V.  Board-  49  Lewis,    Perpetuity,    164,    quoted 

man,  28  Mo.  420;    Creighton  v.  Mc-  London  &  S.  W.  R.  Co.  v.  Gomm,  20 

Kee,  2  Brewst.  (Pa.)   383;  Gomez  v.  Ch.  Div.  562. 

Gomez,  81  Hun,  566,  31  N.  Y.  Supp.  so  See  Lewis,  Perpetuity,  Supp.  16- 

206;  Page  v.  Esty,  54  Me.  319;  Hoff  19  ;    Gray,    Rule    Against    Perpetui- 

T.    Royal    Metal   Furniture   Co.,    117  ties,  §  2G9;   1  Tiffany,  Real  Prop.   § 

App.  Div.  884,  103  N.  Y.  Supp.  371;  152. 

M.,  189  N.  Y.  555,  82   N.  B.  1128.  si  London  &  S.  W.  R.  Co.  v.  Gomm, 

48  See    Morrison    v.    Rossignol,    5  20  Ch.  Div.  562. 
Cal.  64.     The  language  of  this  case 


1524  STIPULATIONS  FOR  RENEWAL  OR  EXTBNaEON.         §  221 

absolute  control  the  right  will  be  may  not  vest  within  the  period 
required  by  the  rule  against  perpetuities,  the  limitation  to  such 
person  is  bad,^^  Thus,  if  an  estate  for  lives  or  years  with  a  cove- 
nant for  perpetual  renewal  is  devised  to  A  for  life,  and  on  his 
death  to  his  (unborn)  children  and  their  heirs,  but  if  all  his  chil- 
dren die  under  twenty-five  then  to  C  and  his  heirs,  the  devise  to 
C  is  bad.  "^3  n  j^^y  be  added  that  if  a  covenant  for  perpetual 
renewal  were  to  be  regarded  as  contravening  the  rule,  the  same 
would  be  true  in  the  case  of  any  covenant  for  renewal  to  be  per- 
formed after  the  termination  of  a  previous  term  of  twenty-one 
years  or  more,  the  rule  being  that  if  the  period  after  which  the  fu- 
ture interest  is  to  vest  is  not  measured  by  lives,  but  is  merely  a 
definite  number  of  years,  it  is  necessary  that  this  be  less  than  twen- 
ty-one years,  in  order  that  the  limitation  be  valid.^^ 

It  is  the  generally  accepted  rule  at  the  present  day  that  a  cove- 
nant by  the  lessor  to  grant  a  renewal  lease,  to  contain  the  same 
covenants  as  the  original  lease,  does  not  bind  him  to  insert  in  the 
renewal  lease  the  covenant  for  rene^val  itself,^^  since  otherwise  the 
covenant  would  be  in  efTect  one  for  perpetual  renewal,  and  the 
courts  have  always  leaned  against  construing  a  covenant  as  being 
of  this  character.^^     But  it  may  be  expressly  stipulated  that  the 

52  See  Hope  v.  City  of  Gloucester,  Y.  649,  29  N.  E.  1028,  afg.  35  N.  Y. 
7  De  Gex,  M.  &  G.  647.  St.    Rep.   773,    12    N.   Y.    Supp.   476; 

53  Gray,  Rule  against  Perpetui-  Swigert  v.  Hartzell,  20  Pa.  Super.  Ct. 
ties,  §  230.  56. 

54  Marsden,  Perpetuities,  34;  Leake,  so,  Eaynham  v.  Guy's  Hospital,  3 
Digest  of  Law  of  Prop,  in  'Land,  Ves.  Jr.  295;  Moore  v.  Foley,  6  Ves. 
441;  Palmer  V.  Holford,  4  Russ.  403;  Jr.  232;  Swinburne  v.  Milburn,  9 
Rolfe  &  Rumford  Asylum  V.  Lefebre,  App.  Gas.  844;  Drake  v.  Board  of 
69  N.  H.,  238,  45  Atl.  1087.  Education,   208  Mo.   540,   106   S.    W. 

55  Hyde  v.  Skinner,  2  P.  Wms.  196;  650,  14  L.  R.  A.  (N.  S.)  829,  123  Am. 
Tritton  v.  Foote,  2  Bro.  Ch.  636;  St.  Rep.  448;  Brush  v.  Beecher,  110 
Iggulden  V.  May,  9  Ves.  Jr.  325;  "Win-  Mich  597,  68  N.  W.  420,  64  Am.  St. 
slow  V.  Baltimore  &  O.  R.  Co.,  188  Rep.  373;  Syms  v.  New  York,  105  N. 
U.  S.  646,  47  Law.  Ed.  635;  Cunning-  Y.  153.  11  N.  E.  369,  59  Am.  Rep.  483; 
ham  V.  Pattee,  99  Mass.  248;  Piggott  Tischner  v.  Rutledge,  35  "Wash.  285. 
V.  Mason,  1  Paige  (N.  Y.)  412;  Carr  77  Pac.  388;  King  v.  Wilson,  98  Va. 
V.  Ellison,  20  Wend.  (N.  Y.)  178;  259,  35  S.  E.  727.  See  atticle  upon 
Diffendeifer  v.  St.  Louis  Public  thp.  construction,  in  this  regard,  of 
Schools,  120  Mo.  447,  25  S.  W.  542;  covenants  for  renewal,  by  I.  Homer 
Muhlenbrinck  v.  Pooler,  40  Hun,  Sweetser,  Esq.,  in  13  Harv.  Law 
(N.  Y.)  526;  Leary  v.  Hutton,  129  N,  Rev.  at  p.  472. 


§  221  PERPETUAL  RENEWAL.  ^       1525 

"same  covenants"  to  be  contained  in  the  renewal  lease  should  in- 
clude the  covenant  for  renewaL^'^-  ^^ 

It  was  at  one  time  decided  that  the  fact  that  the  lease  was 
actually  renewed  on  several  occasions  was  to  be  regarded  as  a 
construction  of  such  a  covenant  by  the  lessor  as  one  for  perpetual 
renewal,  by  which  he  w-as  bound.^^  This  decision  has,  however, 
been  frequently  questioned  and  is  presumably  to  be  regarded  as 
overruled.^°  It  has  been  decided  in  one  case  in  this  country  that 
where  the  covenant  was  to  make  another  lease  at  the  end  of  the 
term,  "with  a  like  covenant  for  future  renewals  of  th€  lease  as 
is  contained  in  this  present  indenture,"  the  facts  that  the  first  re- 
newal lease  provided  for  but  one  renewal,  and  the  second  lease  did 
not  provide  for  any,  were  of  great  weight  in  favor  of  construing 
the  covenant  as  one  for  but  two  renewals.^i  A  covenant  that  "at 
the  end  of  the  term  hereby  demised,  this  lease  shall  be  renewable ' ' 
at  the  option  of  the  lessee,  his  representatives  or  assigns,  "and 
every  renewed  lease  shall  contain  all  the  covenants"  contained  in 
the  first,  except  that  the  renewal  rents  to  be  reserved  "on  every 
renewal"  shall  be  determined  in  a  certain  way,  was  held  to  call  for 
one  renewal  only.62  In  one  case  it  was  decided  that  the  fact  that 
the  lease  is  not  in  terms  made  binding  on  the  heirs  of  either  party, 
and  that  there  is  no  right  of  re-entry  for  nonpayment  of  rent, 
tends  to  show  that  the  renewals  are  not  to  be  perpetual. ^s 

In  England  it  has  been  decided  that  an  undertaking  to  renew 

A  grant  of  the   "privilege  of  re-  Hudgins  v.  Bowes  (Tex.  Civ.  App.) 

renting  and  remaining  on  said  prem-  110  S.  W.  178. 

ises  at  the  same  rental  and   condi-  57,  58  Job  v.  Banister,  2  Kay  &  J. 

tions  for  any  number  of  years"  does  374;  Hare  v.  Burges,  4  Kay  &  J.  45. 

not  entitle  the  lessee  to  subsequent  '^°  Cooke  v.  Booth,  Cowp.  819. 

renewals  after  obtaining  a  single  re-  »oBaynham  v.    Guy's   Hospital,   3 

newal     for    one     year.     Swigert    v.  Ves.  Jr.  205;    Eaton  v.  Lyon,  3  Ves. 

Hartzell,    20   Pa.    Super.    Ct.    56.     It  J**-  690;    Moore  v.  Foley,   6  Ves.  Jr. 

has  been  held  that  a  covenant  for  ^32;  Iggulden  v.  May,  9  Ves.  Jr.  325, 

repeated     renewals,     not    in     terms    '^  ^^'''  ^^''  ^  ^^'-  &  ^-  ^^-  ^■'>  ^'^- 

61  Syms   V.   New  York,   105   N.   Y. 


binding  on  the  lessor's  heirs,  must 
be  regarded  as  intended  to  be  eft'ec- 


153,  n  N.  E.  369,  59  Am.  Rep.  48.3. 
62  Diffenderfer  v.  St.  Louis  Pnblip 
tive  only  during  his  life,  and  so  not  gehools,  120  Mo.  447,  25  S.  W  542. 
to  provide  for  perpetual  renewals.  es  Brush  v.  Beecher,  110  Mich. 
Brush  V.  Beecher,  110  Mich.  597,  68  597,  68  N.  W.  420,  64  Am.  St.  Rep. 
N.    W.    420,    64    Am.    St.    Rep.    373;     373. 


1526      •     STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.         §  222 

''from  time  to  time"  is  not  one  for  perpetual  renewal,^^  while  a 
different  view  lias  been  taken  of  a  stipulation  that  the  lessor  and 
his  successors  in  interest  should  "continue  the  renewing"  of  the 
lease  to  the  lessee  and  his  suecessors,^^  or  that  they  should  renew 
to  them  "always  at  any  time  upon  request, "^^  and  even  where 
the  covenant  was  to  "grant  such  further  lease  as  should  by  the 
lessee  or  his  successors  be  desired,  under  the  same  rent  ajid  cove- 
nants."" 

§  222.    Election  by  lessee  to  extend. 

a.  Retention  of  possession.  It  has  been  decided  in  numerons 
esses  that  if  the  lessor  gives  the  lessee  the  right  to  an  extension 
of  the  term,  and  does  not  specifically  require  him  to  give  notice  of 
his  election  to  avail  himself  of  such  right,^^  ^ig  mere  continuance 
in  possession  after  the  original  term  is  to  be  regarded  as  showing 
his  election  to  that  effect.^^  "Such  a  notice  had  it  been  given 
would  have  been  a  notice  only  of  the  lessee 's  intention  to  continue 
the  same  occupation,  upon  the  same  terms  as  before.  And  upon 
principle  it  would  certainly  seem  that  the  actual  continuance  of 
such  occupation  was  the  best  and  most  conclusive  evidence  of  his 

c4  Brown  v.  Tighe,   2   Clark   &  F.  1216,  70  S.  W.  1047;  Holley  v.  Young, 

396.  66  Me.  520;  Clarke  v.  Merrill,  51  N. 

GoFurnival  v.  Crew,  3  Atl.  83.  H.  415;   Long  v.  Stafford,  103  N.  Y. 

66  Copper  Min.  Co.  v.  Beach,  13  274,  8  N.  E.  522;  Mershon  v.  Wil- 
Beav.  478.  Hams,  62  N.  J.  Law,  779,  42  Atl.  778; 

67  Bridges  v.  Hitchcock,  5  Brown  Voege  v.  Ronalds,  83  Hun,  114,  31 
Pari.  Cas.  6.  See  13  Harv.  Law.  N.  Y.  Supp.  353;  Kelly  v.  Varnes,  64 
Rev.  472.  N.  Y.  Supp.  1040;  Harding  v.  Seeley, 

68  See  post  §  222  b.  148   Pa.  20,  23  Atl.   1118;    Cairns  v. 

69  City  of  Plattsmouth  v.  New  Llewllyn,  2  Pa.  Super.  Ct.  599; 
Hampshire  Sav.  Bank  (C  C.  A.)  Ewing  v.  Miles,  12  Tex.  Civ.  App, 
139  Fed.  631;  Hays  v.  Goldman,  71  19,  33  S.  W.  235;  Peehl  v.  Bumbalek, 
Ark.  2.51,  72  S.  W.  563;  Terstegge  v.  99  Wis.  62,  74  N.  W.  545;  Branden- 
First  German  Mut.  Ben.  Soc,  92  Ind.  burg  v.  Reithman,  7  Colo.  323,  3  Pac. 
82,  47  Am.  Rep.  135;  Montgomery  577;  Quinn  v.  Valiquette,  80  Vt.  434, 
V.  Hamilton  County  Com'rs.  76  Ind.  68  Atl.  515,  14  L.  R.  A.  (N.  S.)  962; 
362.  40  Am.  Rep.  250;  Andrews  v.  Spangler  v.  Rogers,  123  Iowa,  724. 
Marshall    Crparaery    Co.,    118    Iowa,  99  N.  W.   580. 

595,  92  N.  W.  706.  60  L.  R.  A.  399,  96  That  the  possession   must  be  ac- 

Am.    St.    Rep.    412;    Cusack   v.    The  tual,     visible     and      exclusive,     see 

Gunning  Svptem,  109   111.   A"pp.  588;  Wright  v.   Kaynor,   150   Mich.   7,   14 

Brown  v.  Samuels,  24  Ky.  Law  Rep.  Det.  Leg.  N.  631,  113  N.  W.  779. 


222 


ELECTION  BY  LESSEE  TO  EXTEND.  1527 


intention  to  continue.  The  inference  is  that  he  intends  to  continue 
in  possession  rightfully  according  to  the  terms  of  his  lease, 
rather  than  wrongfully. "'^  This  doctrine,  that  the  lessee's  re- 
tention of  possession  shows  an  election  to  extend,  applies  not  only 
agaiaist  the  lessee,  when  the  extension  is  asserted  as  ground  for  a 
continued  liability  on  his  part,  but  also  in  the  latter 's  favor,  when 
it  is  asserted  by  him  as  against  the  lessor,  seeking  to  recover  pos- 
session,"^ i  or  otherwise  to  assert  a  liability  against  him  as  wrong- 
fully holding  over.^2  in  one  state  it  has  been  decided  that  the 
fact  that  the  tenant  so  retains  possession  after  the  original  term  is 
not  conclusive  that  he  has  elected  to  hold  for  the  extended  term, 
even  though  his  retention  of  possession  is  accompanied  by  pay- 
ment of  rent.  This,  it  was  said,  "is  a  piece  of  evidence,  a  strong 
piece  of  evidence, — a  piece  of  evidence  sufficient  of  itself,  if  un- 
explained and  uncontrolled,  to  raise  a  fair  inference  and  presump- 
tion that  the  option  has  been  exercised,  and  thus  to  make  out  a 
prima  facie  case.  But  this  is  the  most  that  can  be  said  of  it,  and 
it  is  still  competent  for  the  tenant  to  offer  opposing  evidence.  ""^3 
When  the  provision  for  extension  fails  to  specify  the  length  of 
the  extension,  or  names  alternative  periods  for  which  the  lessee 

70  Per  Christiancy,  J.,  in  Delash-  be  so  inferred  in  the  absence  of  evi- 
man  v.  Berry,  20  Mich.  292,  4  Am.  dence  to  control  the  effect  of  those 
Rep.  392.  acts."     That    the    retention    of    pos- 

71  Delashman   v.   Berry,    20    Mich,  session  raises  a  presumption  of  an 
292,    4    Am.    Rep.    392;     Holley    v.  election  to  extend,  see  Lyons  v.  Os- 
Yoiing,    66    Me.    520;    Woodcock    v.  born,  45  Kan.  650,  26  Pac.  31. 
Roberts,  66  Barb.    (N.  Y.)   498.  Where  a  lease  was  for  one  year, 

72  Insurance  &  Law  Bldg.  Co.  v.  with  the  privilege  of  "continuing" 
National  Bank,  71  Mo.  58.  for  five  years,  and  the  lessee,  having 

73  Atlantic  Nat.  Bank  v.  Demmon,  erected  a  building  on  the  land,  re- 
139  Mass.  420,  1  N.  E.  833,  per  C  mained  thereon  after  the  year,  and 
Allen,  J,  who  proceeds:  "This  doc  subsequently  told  the  lessor  that  he 
trine  is  in  full  accord  with  the  de-  did  not  wish  to  stay  longer,  and  the 
cision  in  Kramer  v.  Cook,  73  Mass.  lessor  told  him  that  he  might  leave 
(7  Gray)  550,  where  it  was  held  if  he  removed  his  building,  which 
that  such  election  may  be  inferred  he  failed  to  do,  it  was  held  that  this 
from  proof  of  the  tenant's  continu-  was  sufficient  to  warrant  a  finding 
ing  to  occupy,  and  paying  rent  for  that  he  elected  to  remain  five  years 
two  quarters,  without  showing  any  and  was  bound  for  the  rent  for  that 
formal  election  or  notice  to  the  les-  time.  Kimball  v.  Cross,  136  Mass. 
sor  at  the  time  of  the  expiration  of  300.  And  see  Gilbert  v.  Price,  18 
the  first  term,  and  that  it  ought  to  Pa.  Super.  Ct.  359. 


1528  STIPULATIONS  I'OR  RENEWAL  OR  EXTENSION.  §  222 

ma^  extend,  the  mere  holding  over  has  been  decided  to  be  insuf- 
ficient as  notice  of  an  election  to  extend,'^  though  in  one  state, 
when  there  was  such  an  option  to  extend  for  either  of  two  or  more 
periods,  the  retention  of  possession  was  regarded  as  an  election  to 
extend  for  the  shorter  period."" 

A  tenant  does  not  bind  himself  for  the  extended  term,  it  has 
beeii  decided,  by  holding  over  the  original  term,  if  he  does  so  on 
the  strength  of  an  agreement  by  the  landlord  to  repair,  which  the 
latter  fails  to  do,^<'  nor  when  he  so  holds  over  on  the  strength  of 
an  agreement  by  the  landlord  to  make  another  and  different  lease 
to  him,  which  agreement  is  not  carried  out."  Somewhat  similar 
in  principle  is  a  decision  to  the  effect  that  the  lessee,  having  re- 
fused to  accept  a  renewal  at  a  rent  fixed  by  appraisement,  which 
renewal  the  lessor  had  covenanted  to  make,  did  not  show  an  ac- 
ceptance thereof  by  subsequently  holding  over  and  asserting  that 
"the  appraisement  was  invalid.^^ 

It  has  been  decided  that  if  the  lessee,  before  the  end  of  the  orig- 
inal term,  notifies  the  lessor  that  he  will  not  avail  himself  of  the 
option  to  extend,  and  the  lessor  acts  upon  such  notification,  the 
lessee  is  bound  thereby,  and  cannot  afterwards  assert  that,  by 
continuing  in  possession,  he  has  shown  an  election  to  extend.'^ 
And  a  like  decision  was  made  when  the  lessee,  having  an  option 
to  extend  for  four  years,  notified  the  lessor  that  he  would  extend 
for  one  year,  this  being  regarded  as  equivalent  to  notice  that  he 
would  not  exercise  the  option.so  ^  similar  view  has  been  assert- 
ed in  favor  of  the  lessee,  it  being  decided  that  the  landlord  can- 
not assert  an  extension  under  the  extension  clause  of  the  lease  by 
reason  of  the  fact  that  the  lessee  held  over,  if  the  latter  had  previ- 

74  Perry   v.   Rockland   &   R.   Lime  tt  Crouch   v.   Trimby   &   Brewster 

Co.,  94  Me.  325,  47  Atl.  534;  Strousse  Shoe  Co.,  83  Hun,  276,  31  N.  Y.  Supp. 

V.   Bank  of   Clear   Creek   County,   9  932;    Henderson    v.    Schuylkill    Val- 

C'olo.    App.    478,    49    Pac.    260.     And  ley  Clay  Mfg.  Co.,  24  Pa.  Super.  Ct. 

see  Willoughby  v.  Atkinson  Furnish-  422. 

ing  Co.,  93  Me.  185,  44  Atl.  612.  ts  Zorkowski   v.   Astor,   156  N.   Y. 

TsFolley    v.    Giles,    29    Ind.    114;  393,  50  N.  E.  983. 

Whetstone  v.  Davis,  34  Ind.  510.  79  Barnett  v.  Feary,  101   Ind.   95; 

76  Fisher  V.  Nergararian,  112  Mich.  Greiner  v.  Cota,  92  Mich.  32,  52  N. 

327,   70  N.   W.   1009.     See  Williams  W.  77. 

V.    Houston    Comic3    Works     (Tex.  f o  Mershon   v.   Williams,   62  N,  J. 

Civ.    App.)     18    Tex.    Ct.    Rep.    240,  Law,  779,  42  Atl.  778. 
546,  101  S.  W.  839,  1195. 


s  222  ELECTION  BY  LESSEE  TO  EXTEND.  1529 

ously  notified  the  lessor  that  he  would  not  exercise  the  right  of 
extension.si  But  the  lessee 's  statement  that  he  would  not  remain, 
when  made  merely  in  answer  to  the  lessor's  wrongful  demand  of 
an  increased  rent,  was  held  not  to  show  an  election  not  to  extend, 
the  lessee  retaining  possession  after  the  term.s2  j^  statement  by 
the  lessee  to  the  lessor,  made  before  the  end  of  the  first  term,  of 
his  election  to  extend,  is,  it  seems,  if  acted  on  by  the  lessor,  bind- 
ing on  the  lessee  to  the  same  extent  as  his  notice  of  election  not  to 
extend.^2 

Occasionally  the  lease,  instead  of  providing  in  terms  for  an  ex- 
tension at  the  option  of  the  lessee,  provides  that  if  he  shall  fail  to 
relinquish  possession  he  will  hold  for  another  term  or  as  a  tenant 
from  year  to  ycar.^*  A  provision  that  "if  the  tenant  should  con- 
tinue on  the  premises  after  the  termination  of  the  contract"  it 
should  "continue  in  force  for  another  year  and  so  on"  has  been 
held  to  refer  to  a  "lawful  continuance"  on  the  premises,  and  not 
to  a  continuance  in  violation  of  the  lessee's  covenant  to  relinquish 
possession  at  the  end  of  the  term  on  demand.*^ 

b.  Requirement  of  express  notice.  Where  the  stipulation  for 
an  extension  at  the  option  of  the  lessee  provides  for  a  notice  by 
him  of  a  particular  character  of  his  election  to  exercise  the  option, 
his  mere  retention  of  possession  mil  not  be  sufficient  to  entitle  him 
to  possession  for  the  extended  period.^^  It  has  been  held  that  a 
requirement  of  a  notice  in  writing  was  satisfied  by  a  notice  writ- 
ten in  the  third  person,  naming  the  lessee,  and  enclosed  in  his 
business  envelope,  although  the  notice  was  not  signed.^''' 

The  lessor  may  waive  any  requirements  as  to  notice.^^     In  one 

81  Racke  v.  Anheuser-Busch  Brew.  N.  W.  414;  Mershon  v.  Williams,  62 
Ass'n,  17  Tex.  Civ.  App.  1G7,  42  S.  N.  J.  Law,  779,  42  Atl.  778;  Ocum- 
W.  774.  See  Lindsay  v.  Robertson,  paugh  v.  Engel,  121  App.  Div.  9,  105 
30  Ont.  229,  apparently  to  this  effect.  N.  Y.  Supp.  510;  Powell  v.  Harrison, 

82  Hughes  V.  Windpfennig,  10  10  Wkly.  Law  Bui.  (Ohio)  215. 
Ind.  App.  122.  37  N.  E.  432.  See    Murtland    v.    English,    214    Pa. 

83  See  Chandler  v.  McGinning,  8  325,  63  Atl.  882,  112  Am.  St.  Rep. 
Kan.  App.  421,  55  Pac.  103.  747.     Compare  Gardiner  v.  Bair,  10 

^4  See  McPherson  v.  Norris,  13  U.  Pa.  Super.  Ct.  74. 

C.  Q.  B.  472;   Crawford  v.  Kline,  74  st  Wiener    v.    Graff    &    Co.     (Cal. 

N.   J.  Law,   203,   65  Atl.  441;    Steen  App.)   95  Pac.  167. 

V.  Scheel,  46  Neb.  252,  64  N.  W.  957.  ss  Wood   v.   Edison   Elec.    Illumin- 

85  MacGregor  v.  Rawle,  57  Pa.  184.  ating  Co.,   184  Mass.    523,   69  N.   E. 

86  Cooper  V.  Joy,  105  Mich.  374,  63  364,  100  Am.  St.  Rep.  573;  Hausauer 


1530  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.         §  222 

case  it  was  decided  that  a  provision  for  a  written  notice  of  the 
lessee's  election  to  extend  cannot  be  verbally  waived  without  a 
violation  of  the  provision  of  the  Statute  of  Frauds  prohibitiog  the 
creation  of  a  terra  of  years  without  writing,^^  but  this  decision, 
based  as  it  apparently  is,  on  the  theory  that  the  extended  term  is 
created  by  the  notice  and  not  by  the  original  lease,  seems  er- 
roneous, and  has  been  controverted  in  other  states.^o  In  another 
case  it  was  decided  that,  in  view  of  the  provision  for  notice  of  his 
election  to  extend,  the  lessee's  retention  of  possession,  without 
the  giving  of  the  notice,  was  insufficient  to  impose  lial)ility  on  him 
for  rent  for  the  extended  term,  the  theory  being,  apparently,  that 
the  lessor  could  not,  by  waiving  the  requirement  of  notice,  give  to 
the  retention  of  possession  a  meaning  which,  in  view  of  the  re- 
quirement of  notice,  the  lessee  could  not  have  intended  it  to 
have.^i  In  that  case  it  was  held  to  be  a  question  of  fact  whether 
the  holding  over  and  payment  of  the  stipulated  rent  showed  an 
election  by  the  lessee. 

The  acceptance  by  the  lessor,  without  objection,  of  a  notice 
given  after  the  time  named  for  giving  it,  has  been  held  to  involve 
a  waiver  of  the  requirement  as  to  time,^^  and  the  requirement 
of  notice  itself  was  regarded  as  waived  when  the  lessor  joined  in 
naming  appraisers  to  fix  the  rent  on  the  extended  term.^^  Like- 
wise, the  acceptance  by  the  lessor,  after  the  end  of  the  original 
term,  of  an  increased  rent,  which  was  to  be  paid  in  case  of  ex- 

V.  Dahlman.  18  App.  Div.  475,  45  N.  to  be  settled  by  appraisement,  how- 

Y.   Supp.   1038;    Id.,    163  N.   Y.    567,  ever,   it   was   held,   apparently,   that 

57  N    E.  1111.  the  requirement  of  notice  could  not 

soBeller    v.    Robinson,    50    Mich,  be  waived,  so  as  to  give  the  lessee 

264    15  N.  W.  448,  opinion  per  Cool-  a  right  of  possession  at  law,  though 

gy    J  it    might    be    ground    for    relief    in 

90  McClelland  v.  Rush,  150  Pa.  57,  equity.     Tilleny    v.    Knoblauch,    73 

24  Atl.   ?.n4,  16   L.  R.  A.   554;    Shep-  Minn.   108,   75    N.   W.    1039. 

pard  V.  Rosenkrans,  109  Wis.  58,  85  9i  Oerhsrt    Realty    Co.    v.    Brecht. 

N.  W.  199.  53  L.  R.  A.  650,  83  Am.  109  Mo.  Ann.  25,  84  S.  W.  216.     See 

St.   Rep.   886;    Long  v.  Stafford,  103  ante,   note   86. 

N.  Y.  274,  8  N.  E.  522;   In  re  Zillig,  92  Sheppard    v.     Rosenkrans,     109 

13    N.    Y.    St.    Rep.    891;    Lewis    v.  Wis.  58,  85  N.  W.  199,  53  L.  R.  A. 

Perry,  149  Mo.  257,  50  S.  W.  821.   See  650,  83  Am.  St.  Rep.  886. 

In    re   Thompson's    Estate,    205    Pa.  93  Viany  v.  Ferran,  5  Abb.  Pr.  (N. 

5t;k,  55  Atl.   539.     Where  the  provi-  S.;    N.  Y.)    110,   54   Barb.   529. 
sion  was  for  an  extension  at  a  rent 


e  v02  ELECTION  BY  LESSEE  TO  EXTEND.  1531 

tension,  has  been  regarded  as  a  waiver  of  the  requirement  of 
notice,^-'  as  has  the  acceptance  of  the  same  rent,  when  there  was 
no  provision  for  an  increase  of  rent.^^ 

A  notice  in  accordance  with  the  terms  of  the  lease  is  not  in- 
validated by  the  fact  that  there  is  coupled  therewith  a  sugges- 
tion on  the  part  of  the  lessee  that  he  desires  to  extend  for  a 
longer  period  than  that  named,  to  which  the  lessor  refuses  can- 

sent  ^ 

A  deposit  of  the  notice  in  the  mail,  before  the  time  named  in 
the  lease,  in  accordance  with  instructions  from  the  lessor,  has 
been  regarded  as  sufdcient,  though  the  notice  is  not  received 
by  the  latter,  residing  in  another  state,  till  after  the  date  named.^^ 

It  has  been  decided  that,  in  the  case  of  a  lease  to  two,  the 
option  to  extend  must  be  exercised  by  both  in  order  to  be  effec 
tive  and  that  the  expressed  dissent  of  one  to  an  extension  pre- 
cludes an  extension  in  favor  of  the  other .^^  in  the  case  of  a  cove- 
nant to  renew  made  by  eolessors,  a  notice  to  one  has  been  re- 
garded as  sufficient  as  against  all.^^ 

Occasionally  a  provision  is  found  that,  if  the  lessee  fails  to  give 
notice  a  certain  length  of  time  before  the  end  of  his  term,  the 
t.maney  shall  continue  for  another  term,  or  as  one  from  year  to 
yeari'^o  One  purpose  of  such  a  provision  is,  it  is  said,  to  put 
the  landlord  and  tenant  on  an  equal  footing,  so  that  the  former 
may  know  a  reasonal^le  time  before  the  end  of  the  term  whether 
he  must  seek  another  tenant,  and  the  latter  will  know  whether 

94  Long  v  Stafford,  103  N.  Y.  274.  98  Tweedie  v.  P.  E.  Olson  Hard- 
8  N  E  522-  Kramer  v.  Cook,  73  ware  &  Furniture  Co.,  96  Mmn.  238. 
Mass  (7  Gray)  550;  Stone  v.  St.  104  N.  W.  895,  1089;  Id.,  98  Minn. 
Louis  Stamping  Co.,  155  Mass.  267.  11,  107  N.  W.  557.  See  Howell  v. 
29  N   E    623  Behler,  41  W.  Va.  610,  24  S.  E.  646. 

95  Prober  V  Rochester  Steam  oo  Wright  v.  Kaynor.  150  Mich.  7, 
Laundry  Co.,  171  N.  Y.  584.  64  N.  E.  14  Det.  Leg.  N.  631,  113  N.  W.  779. 
504-  Lewis  v.  Perry,  149  Mo.  257.  loo  Chretien  v.  Doney,  1  N.  Y. 
50  S  W  821  (semble);  Bailie  v.  (1  Comst.)  419;  Dix  v.  Atkins.  130 
Plant  11  Misc  30,  31  N.  Y.  Supp.  Mass.  171;  Wilcox  v.  Montour  Iron 
^Q^5  '  &  Steel  Co..  147  Pa.  540,  23  Atl.  840; 

orchamberlain  v.  Dunlap,  126   N.  Lipper  v.  Bouve.  Crawford  &  Co.,  6 

Y    45    26  N    E    966,  22  Am.  St.  Rep.  Pa.    Super.    Ct.    452;     Megargee    v. 

gQ^  ''  '  Lonrraker,    10    Pa.    Super.    Ct.    491; 

97  Reed  V.  St.  John,  2  Daly  (N.  Y.)  Train  or  v.  Schutz,  98  Minn.  213.  107 

213.  N.  W.  812. 


1532  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.  ^  223 

he  miLst  seek  other  premises,i°^  and  it  will,  it  seems,  be  strictly 
applied.^*'^ 

§  223.    Election  by  lessee  to  renew — Notice  to  lessor. 

In  order  to  obtain  the  benefit  of  a  covenant  for  renewal,  in 
jurisdictions  where  such  a  covenant  is  clearly  distinguished  from 
a  mere  option  to  extend,  the  lessee  must,  at  least  at  law,  before 
the  end  of  the  previous  term,  notify  the  owner  of  the  reversion 
of  his  desire  for  a  renewal.^^^  Frequently,  especially  in  Eng- 
land, the  lease  itself  names  the  time  at  which  such  notice  is  to 
be  given,  and  such  a  requirement  must  ordinarily  be  complied 

With.104.105 

The  notice  or  demand  for  renewal  need  not  be  in  writing  un- 
less  the  lease  expressly  so  provides.^"^     And  any  requirement 

101  Lane  v.  Nelson,  167  Pa.  602,  31  noud  v.  Daskam,  34  Conn.  512.  But 
Atl.   864.  in  Brewer   v.   Conger,  27  Ont.   App. 

102  See  Gardiner  v.  Bair,  10  Pa.  10,  it  was  considered  that,  when  the 
Super.  Ct.  74.  covenant  was  to  grant  another  lease 

103  Eaton  v.  Lyon,  3  Ves.  Jr.  690;  "provided  the  lessee  should  desire 
City  of  London  v.  Mitford,  14  Ves.  to  take  a  further  lease,"  the  exis- 
Jr.  41;  Nicholson  v.  Smith,  22  Ch.  tence  of  a  desire  was  sufficient,  with- 
Div.  640;  Shamp  v.  White,  106  Cal.  out  the  giving  of  any  notice  thereof. 
220,  39  Pac.  537;  Thiebaud  v.  First  104,105  gee  Rubery  v.  Jervoise,  1 
Nat.  Bank  of  Vevay,  42  Ind.  212;  Term  R.  229;  McFadden  v.  McCann, 
Maughlin  v.  Perry,  35  Md.  352;  25  Iowa,  252;  Jackpon  Brew.  Co.  v. 
Caggiano  v.  Gallorenzi,  26  Misc.  819,  Wagner,  117  La.  875,  42  So.  356; 
57  N.  Y.  Supp.  2;  McCiintock  v.  Murtland  v.  English,  214  Pa.  325, 
Joyner,  77  Miss.  678,  27  So.  837,  78  63  Atl.  882,  112  Am.  St.  Rep.  747; 
Am.  St.  Rep.  541;  Atlantic  Product  Morgan  v.  Goldberg,  9  Misc.  156,  29 
Co.  V.  Dunn,  142  N.  C.  471,  55  S.  B.  N.  Y.  Supp.  52.  In  I.  X.  L.  Furnl- 
299;  Mack  v.  Eckerlin,  27  Ohio  Cir.  ture  &  Carpet  Installment  House  v. 
Ct.  R.  133.  See  I.  X.  L.  Furniture  Berets,  32  Utah,  454,  91  Pac.  279, 
&  Carpet  Installment  House  v.  Ber-  it  was  held  that  a  provision  for  the 
ets,  32  Utah,  454,  91  Pac.  279.  So  a  making' of  a  renewal  lease  upon  the 
covenant  that,  after  the  expiration  lessee's  election,  "at  the  expiration 
of  said  term  of  five  years,  the  les-  of  the  term."  required  the  election 
sor  -will,  if  thereto  desired  by  the  to  be  made  before  the  term  actually 
lessee,    make    and    execute    a    lease  expired. 

for  the  further  term  of  five  years,         loc  Darling    v.    Hoban,    53    Mich, 

upon  the  same  terms,  was  held  not  599,  19  N.  V/.  545;  Broadway  &  S.  A. 

to  entitle  the  lessee  to  exercise  his  R.  Co.  v.  Motzger,  27  Abb.  N.  C.  160, 

election  after  the  original  term.     Re-  15  N.  Y.  Supp.  662. 


§  223 


ELECTION  BY  LESSEE  TO  RENEW.  1533 


as  to   demand  or  notice  may  be  waived  by  the   owner  of  the 
reversion,!^^  as  in  the  case  of  an  option  for  extension.!*^^ 

Though  the  lessee  need  not  demand  a  renewal  before  the  last 
day  of  the  term,  any  statement  previously  made  by  him  to  the 
lessor  as  to  his  intention  in  this  respect,  if  acted  on  by  the  lessor, 
is,  it  seems,  binding  on  him.io^  The  lessee  may,  ordinarily,  make 
the  demand  for  renewal  before  the  end  of  the  original  term  if 
he  chooses  so  to  do,i^° 

The  English  courts  of  equity  have  in  some  cases  asserted  with 
considerable  strictness  the  necessity  that  the  demand  for  renewal 
and  payment  of  the  prescribed  line  be  promptly  made  at  the 
time  named,  or  before  the  end  of  the  original  term,  in  order  that 
the  lessee  may  have  specific  performance  or  other  equitable  re- 
lief,m  while  in  other  cases  they  appear  to  have  relieved  against 
delay  in  this  respect,  under  particular  circumstances,  with  consid- 
erable freedom.112  jn  this  country,  it  has  been  decided  in  several 
cases  that  equity  would  not  relieve  against  a  failure  through 
forgetfulness  or  negligence  to  give  notice  at  the  time  named, 
the  parties  having  evidently  intended  that  time  should  be  of 
the  essence  of  the  contract  for  renewal.ii^  In  one  case  specific 
performance  was  decreed  when  the  failure  to  demand  a  renewal 
was  owing  to  physical  injury  totally  incapacitating  the  lessee 
from  transacting  business,ii*  and  in  another,  when  such  failure 

107  Viany  v.  Ferran,  5  Abb.  Pr.  (N.  "2  Hunter  v.  Hopetoun,  13  Law  T. 
S.;  N.  Y.)  110.  (N.    S.)     130;    Ross    v.    Worsop,    1 

108  See  ante,  at  notes  88-95.  Brown  Pari.  Gas.  281;  Rawstorne  v. 

109  See  McClintock  v.  Joyner,  77  Bentley,  4  Brown  Ch.  415;  Statham 
Miss.  678,  27  So.  837,  78  Am.  St.  ReP.  v.  Trustees  of  Liverpool  Docks,  3 
541;  Chaufller  v.  McGinning,  8  Kan.  Younge  &  J.  565.  And  see  Brewer 
App.  421,  55  Pac.  103;  Moss  v.  Bar-  v.  Conger,  27  Ont.  App.  10. 

ton   35  Bcav.  197.  ^^^  Dikeman     v.      Sunday     Creek 

110  Tracy  v.  Albany  Exch.  Co.,  7  Coal  Co.,  184  111.  546,  56  N.  E.  864; 
N.  Y.  (3  Seld.)  472,  57  Am.  Dec.  Thiebaud  v.  First  Nat.  Bank  of 
538;  I.  X.  L.  Furniture  &  Carpet  Vevay,  42  Ind.  212;  Doepfner  v.  Bow- 
Installment  House  V.  Berets,  32  ers,  55  Misc.  561,  106  N.  Y.  Supp. 
Utah,  454,  91  Pac.  279.  932;  Keppler  Bros.  Co.  v.  Heinrlchs- 

111  Allen  V.  Hinton,  1  Fonbl.  Eq.  dorf,  26  Ohio  Cir.  Ct.  R.  16;  I.  X.  L. 
432;  Baynham  v.  Guy's  Hospital,  3  Furniture  &  Carpet  Installment 
Ves'.  Jr.  295;  City  of  London  v.  Mit-  House  v.  Berets,  32  Utah,  454,  91 
ford,  14  Ves.  Jr.  41;  Wight  v.  Hope-  Pac.    279. 

toun,  4  Macq.  H.  L.  Cas.  729:  Nich-        :i4Monihan    v.    Wakelin,    6    Ariz. 
Olson  V.  Smith.  22  Ch.  Div.  640.  225,  56  Pac.  735. 


1534  STIPULATIONS  FOR  RENEWAL  OR  EXTENSI0I<5.  §  223 

■was  owing  to  the  lessee's  mistake  as  to  the  time  of  the  end  of 
the  term,  a  mistake  which  was  owing  in  part  to  statements  of 
the  lessor's  agent,  and  the  lessee  had  made  valuable  improve- 
ments on  the  premises.^ ^^ 

In  Maryland,  quite  frequently,  consideration  has  been  given 
to  the  right  of  one,  holding  under  a  form  of  lease  there  current, 
"for  ninety-nine  years,  renewable  forever,"  to  specific  perform- 
ance of  the  covenant  for  renewal,  when  he  failed  to  demand  a 
renewal  before  the  termination  of  the  previous  term,  and  it  has 
been  there  decided,  following  the  Irish  decisions,  in  which  the 
right  of  renewal  in  such  cases  has  been  strongly  asserted,^^^  that 
in  view  of  the  well  understood  intention  of  the  parties  to  such 
leases  in  that  community,  to  vest  a  permanent  interest  in  the 
lessee,  there  is  a  "local  equity"  in  the  lessee  or  his  assignee  to  a 
renewal,  which  is  lost  only  by  gross  laches.^  ^^  Accordingly,  the 
tenant  was  held  to  be  entitled  to  a  renewal  though  the  lessee 
failed  to  demand  a  renewal  before  the  end  of  the  first  term,  when 
his  oversight  in  this  respect  was  due  to  the  failure  of  the  land- 
lord to  demand  rent  for  several  years  previous  thereto,  he  having, 
immediately  upon  the  bringing  of  ejectment  by  the  landlord, 
three  years  after  the  end  of  the  term,  applied  for  a  decree  of 
specific  performance.^ ^^  And  a  delay  of  seven  years  in  this  re- 
gard was  likewise  held  not  to  prevent  a  decree  for  specific  per- 
formance, the  rent  not  having  been  claimed  for  many  years,  the 
reversion  being  vested  in  numerous  parties  scattered  through  dif- 
ferent states,  and  the  tenant  supposing  that  the  reversionary 
rights  had  in  some  way  become  extinguished.^^^  So  in  Virginia 
it  was  decided  that  the  lessee  under  such  a  lease  was  entitled  to 
specific  performance  of  the  covenant,  though  he  did  not  demand 
a  renewal  or  tender  the  prescribed  fine  till  several  years  after 
the  end  of  the  term,  the  lessor  having  continued  during  that 
time  to  accept  rent  as  before  without  objection.^20     ^j^g  same 

115  New  York  Life  Ins.  &  Trust  Co.  Myers  v.  Silljacks,  58  Md.  319,  42 
V.   St.  George's  Church,  12  Abb.  N.    Am.   Rep.    332. 

C.  (N.  Y.)   50.  lis  Banks  v.  Haskie,  45  Md.  207. 

116  See  Lennon  v.  Napper,  2  119  Worthington  v.  Lee,  61  Md. 
S^hoales  &  L.  684;  Boyle  v.  Lysaght,    530. 

Vern.  &  S.  135;  O'Neill  v.  Jones,  1  120  Selden  v.  Camp,  95  Va.  527,  28 
Ridg.   P^rl.   Cas.  170.  S.   E.   877. 

117  Banks  v.  Haskie,   45   Md.  207; 


§223 


ELECTION  BY  LESSEE  TO  RENEW. 


1535 


principle,  that  laches,  to  prevent  renewal,  must  be  gross,  has 
been  asserted  in  a  case  in  New  York,  in  connection  with  a  short- 
time  lease.^^^ 

In  some  jurisdictions,  in  the  case  of  a  covenant  to  renew,  as 
in  that  of  a  provision  for  extension,i22  the  retention  of  possession 
by  the  tenant  has  been  regarded  as  sufficient  to  indicate  his  elec- 
tion to  hold  for  the  additional  period,i23  the  lease  itself  not  im- 
posing in  express  terms  any  requirement  as  to  notice.124  i^ 
other  jurisdictions,  however,  a  covenant  for  renewal  being  re- 
garded as  distinct  from  a  provision  for  extensicn,  such  retention 
of  possession  alone  has  been  decided  to  be  insufacient  to  vest 
any  rights  in  the  tenant.i^s  The  rule  of  these  latter  decisions  is 
in  effect  asserted  by  the  cases  above  discussed,  recognizing  the 
necessity  of  a  demand  for  a  renewal  lease  previous  to  the  end 
of  the  previous  term,  they  ignoring  any  possibility  that  the  lack 
of  such  demand  could  be  supplied  by  the  tenant's  retention  of 
possession.^26  There  seems  no  particular  reason  why  such  re- 
tention of  possession,  whether  or  not  with  the  landlord's  consent, 


121  Reed  v.   St.  John,  2    Daly    (N. 
Y.)    213. 

122  See  ante,  §  222  a. 
i23Holley   V.   Young,  66  Me.   520; 

McBrien  v.  Marshall,  126  Pa.  390,  17 
Atl.  647  (semble);  Creighton  v.  Mc- 
Kee,  2  Brewst.  (Pa.)  383  (semble); 
Canal  Elevator  &  Warehouse  Co.  v. 
Brown,  36  Ohio  St.  660  (semble); 
Kelso  V.  Kelly,  1  Daly  (N.  Y.)  419; 
Clendenning  v.  Lindner,  9  Misc.  68^, 
30  N.  Y.  Supp.  543;  Ewing  v.  Miles, 
12  Tex.  Civ.  App.  19,  33  S.  W.  235; 
Caley  v.  Thornquist,  89  Minn.  348, 
94  N.  W.  1084;  Quade  v.  Fitzloff,  93 
Minn.  115,  100  N.  W.  660;  Insur- 
ance &  Law  Bldg.  Co.  v.  National 
Bank,  71  Mo.  58;  Ranlet  v.  Cook,  44 
N.  H.  512,  84  Am.  Dec.  92.  See 
Clarke  v.  Merrill,  51  N.  H.  415; 
Wright  V.  Kayndr,  150  Mich.  7,  14 
Det.  Leg.  N.  631,  113  N.  W.  779; 
Harding  v.  Seeley,  148  Pa.  20,  23 
Atl.  1118,  and  Lewis  v.  Perry,  149  Mo. 


257,  50  S.  W.  821,  as  favoring  this 
view. 

124  See  Murtland  v.  English,  214 
Pa.  325,  63  Atl.  882,  112  Am.  St.  Rep. 
747. 

125  Thiebaud  v.  First  Nat.  Bank  ol 
Vevay,  42  Ind.  212;  Montgomery  v. 
Hamilton  County  Com'rs,  76  Ind. 
362,  40  Am.  Rep.  250;  Terstegge  v. 
First  German  Mut.  Ben.  Soc,  92 
Ind.  82,  47  Am.  Rep.  135;  Shamp  v. 
White,  106  Cal.  220,  39  Pae.  537; 
Kollock  V.  Scribner,  98  Wis.  154,  73 
N.  ¥/.  776;  Andrews  v.  Marshall" 
Creamery  Co.,  118  Iowa,  595,  92  N. 
W.  706,  60  L.  R.  A.  399,  96  Am.  St. 
Rep.  412.  In  Huger  v.  Dibble,  8 
Rich.  Law  (S.  C.)  222,  it  was  de- 
cided that  a  tenant  occupying  and 
paying  rent  after  the  original  term 
was  a  tenant  from  year  to  year  and 
did  not  hold  under  the  agreement  to 
renew. 

126  See  ante,  at  note  103. 


1536  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.         §  224 

should  be  regarded  as  showing  a  desire  to  have  the  landlord  exe- 
cute a  renewal  lease  for  the  whole  period  named  in  the  provision 
for  renewal.^ 27 

In  one  state  ^^^  there  is  a  statutory  provision  that,  in  the  case 
of  a  lease  with  a  covenant  for  perpetual  renewal,  the  retention 
of  possession  by  the  lessee,  or  by  a  person  claiming  under  him, 
for  the  period  of  twelve  months,  shall  raise  a  conclusive  presump- 
tion "in  favor  of  said  lessee  or  person  claiming  under  him"  that 
a  new  lease  was  executed  before  the  expiration  of  the  prior  term. 
It  seems  that,  apart  from  statute,  the  maldng  of  a  renewal  lease 
may  occasionally  be  inferred  from  the  conduct  of  the  parties.^ -^ 

The  construction  and  effect  of  any  specific  requirements  as  to 
notice  would  presumably  be  the  same  whether  the  stipulation  is 
for  a  renewal  or  for  an  extension,  and  the  same  considerations 
would  apply  in  the  two  cases  in  determining  whether  there  has 
been  a  waiver  of  any  such  requirement.  The  decisions  upon  these 
matters  have  been  previously  referred  to.^^o 

§  224.    Election  by  lessor. 

Ordinarily  the  stipulation  for  renewal  is  so  expressed  as  to 
bind  the  lessor  to  grant  a  renewal,  without  binding  the  lessee  to 
take  it,  thus  leaving  the  question  of  renewal  optional  with  the 
lossee.i^^  Occasionally,  however,  the  option  is  vested  in  the  les- 
sor, so  that  the  lessee  is  bound  to  accept  the  renewal  if  ten- 
dered.^^2  And  so  the  lessee  may  agree  to  take  a  renewal  in  a  cer- 
tain contingency,  which  contingency  is  itself  in  part  dependent 
on  the  election  of  the  landlord.^^-^  A  covenant  by  the  lessor  to 
renew  the  lease  or  to  sell  to  the  lessee  has  been  construed  as 

127  See      Andrews      v.      Marshall  Manny,  52  Mo.  497;  Com.  v.  McNeile, 

Creamery  Co.,  118  Iowa,  595,  92   N.  8  Phila.   (Pa.)    438. 

W.  706,  60  L.  R.  A.  399,  96  Am.  St.  i32  Darling  v.  Hoban.  53  Mich.  599, 

Rep.  412.  19  N.  W.  545;  Stephens  v.  Hotham,  1 

1^?  Maryland  Code  Pub.  Gen.  Laws,  Kay    &    J.    571.     See    Laroussini    v. 

art.  21,   §   91.  Werlein,  48  La.  Ann.  13,  18  So.  704. 

120  See  "Wallace  v.  Dorris,  218  Pa.  iss  As  when   the  lessee  agrees  to 

534,  67  All.  858.  take   a   renewal   in   case   the   lessor 

130  See  ante,  §  222  b.  obtains   a   renewal   of  his    lease   or 

131  See  Swank  v.  St.  Paul  City  R.  procures  the  fee  simple  title.  See 
Co.,  72  Minn.  380,  75  N.  W.  594;  Canal  Elevator  &  Warehouse  Co.  v. 
Bruce   v.   Fulton   Nat.  Bank,   79   N.  Brown,  36  Ohio  St.  660. 

Y.  154,  35  Am.   Rep.  505;   Butler  v. 


S  225  COMPLIANCE  BY  LESSEE  WITH  COVENANTS.  1537 

making  it  optional  with  the  lessee  which  he  will  do,^34,  as  has  a 
covenant  to  renew  or  to  purchase  the  lessee's  improvements.^^ 

When  the  lessor,  rather  than  the  lessee,  is  given  the  option  as 
to  a  renewal,  the  election  may,  it  has  been  held,  be  made  on  the 
last  day  of  the  term,  without  any  writing  or  tender  of  a  new 
lease  if  the  tenant  is  in  possession  and  the  first  lease  specifies 
the  conditions  of  renewaL^^^^^  The  lessor's  action  in  proceeding 
to  appraise  the  value  for  the  purpose  of  fixing  the  rent  for  the 
renewal  term,  thereby  imposing  expense  and  trouble  upon  the 
lessee,  constitutes  a  sufficient  election  to  grant  a  renewal,  it  haa 

been  decided. ^^^ 

A  provision  for  an  extension,  as  distinguished  from  one  for 
renewal,  ordinarily  makes  the  extension  optional  with  the  lessee 
and  not  the  lessor.  There  is,  however,  it  seems,  no  reason  why 
a  lease  for  a  certain  term  should  not  provide  that  the  lessor 
may,  at  his  option,  treat  it  as  a  lease  for  a  further  term,  this  m 
effect  constituting  a  lease  for  the  sum  of  the  two  terms,  subject 
to  termination  at  the  option  of  the  lessor  at  the  end  of  the  first 
term.i^se 

§  225.    Compliance  by  lessee  with  covenants  and  conditions. 

Quite  frequently  it  is  provided  that  the  lessee's  right  to  a  re- 
newal shall  be  dependent  upon  his  previous  compliance  with 
his  covenants,  and  such  a  provision  has  ordinarily  been  strictly 
applied  as  against  the  lessee.^^^  So  it  has  been  decided  that 
where  the  renewal  is  in  terms  conditioned  on  compliance  with 
covenants,  if  at  the  time  a  renewal  is  applied  for  there  is  an 
existing  right  of  action  in  favor  of  the  landlord  for  the  teaant  s 
breach  of  covenant,  the  right  of  renewal  is  lost,  although  the 
breach  (as  of  a  covenant  to  repair)  is  trivial  in  character. 
And  where  the  tenant  had  not  performed  the  covenants  to  repair 

,,    8  o.o  Petroleum  Co.,  141  Cal.  161.  74  Pac. 

134  See   post,    §    2b8.  ^^^                         ,      -J    J     <-T,„+    tho     fart 

o       \^of    R  971   a  700,    it    was    decided    that    the    tact 

;::  f^arun  '  iHohan,  53    Mich,    that     the     lessor     might     have     as 

.00   iqTw   545  verted    a    forfeiture    for    breach    of 

::rCro.by    V  ■  Moses,  48    N.    Y.    such   covenants   and   did   not   do   so 
Super  Ct    (16  Jones  &S.)  146,  92  N.    was   immaterial, 

buper.  ^^.  y  -.3t  Pehrman  v.  Barto,  54  Cal-  131; 

^'  +^   ot  R  19P  Finch  V   Underwood,  2  Ch.  Dlv.  310; 

185C  Compare  ante,  at  §  12e.  ±(incnv.  u  ^o  ni,     nw    9^8 

X36in  Swift  V.  occidental  Min.  &    Bastin  v.  Bidwell,  18  Ch.   Div.  238. 


L.  and  Ten.  97. 


1538  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.         §  225 

and  insure,  the  court  refused  specific  performance  of  a  covenant 
to  renew  ''provided  the  rent  should  have  been  paid  and  the  cov- 
enants kept."^^^  Where  the  covenant  was  to  renew  the  lease  at 
the  expiration  of  the  term,  "if  not  sooner  determined  by  the 
lessee's  acts  and  defaults,"  it  was  held  that  breaches  of  cove- 
nant by  him  defeated  his  right  to  renewal,  although,  owing  to  the 
landlord's  ignorance  of  such  breaches,  he  had  not  asserted  hia 
right  to  enforce  a  forfeiture  of  the  term.i^^  The  fact  that  the 
landlord  had,  in  such  a  case,  by  acceptance  of  rent,  waived  his 
right  to  assert  a  forfeiture  of  the  term,^^*^  was  in  England  held 
not  to  entitle  the  tenant  to  the  benefit  of  the  covenant  to  re- 
new.i^i  In  one  state,  however,  the  fact  that  the  landlord  had 
waived  his  right  to  a  forfeiture  for  breach  of  condition  was  ap- 
parently regarded  as  a  waiver  of  his  right  to  refuse  renew^al  on 
that  ground.1^2 

That  there  has  been  a  breach  of  the  covenant  against  assign- 
ment has  been  held  to  exclude  the  right  of  renewal,  this  being 
expressly  made  dependent  on  performance  of  covenants,  even 
though  there  was  a  reassignment  back  to  the  lessee.^^^  The  fact, 
however,  that  the  rent  was  not  paid  when  due  does  not  exclude 
the  right  of  renewal,  it  has  been  decided,  if  the  rent  is  afterwards 
accepted,  even  though  such  right  is  in  terms  excluded  by  the 
lease  in  case  of  default  in  any  covenants.^*-*  It  does  not  appear 
to  have  been  decided  whether  a  mere  delay  in  performance  of 
covenants  other  than  that  for  payment  of  rent,  such  as  that  to 
make  repairs,  would  bar  a  lessee  whose  right  to  renewal  is  con- 

138  Job  V.  Banister,  2  Kay  &  J.  374,  880,  124  Am.  St.  Rep.  525;  post,  note 
afd.  3  Jur.   (N.  S.)   93.  148.     In  Garnhart  v.  Finney,  40  Mo. 

139  Thompson  v.  Guyon,  5  Sim.  449,  93  Am.  Dec.  303,  the  fact  that 
65.  the    lessor    accepted    rent   from    the 

140  See  ante,  §  194  i   (1)    (b).  assignees    and    permitted    them    to 

141  Bastin  v.  Bidwell,  18  Ch.  Div.  make  improvements  as  provided  in 
238;  Finch  v.  Underwood,  2  Ch.  the  lease,  and  did  not  enforce  forfeit- 
Dlv.  310.  ure  of  the  term  for  breach  of  the  cov- 

142  Garnhart  v.  Finney,  40  Mo.  449, _  enants  against  assignment,  was  re- 
93  Am.  Dec.  303.  garded  as  a  waiver,  precluding  a  re- 

143  Mcintosh       V.       St.       Phillips  fiisal  of  a  renewal  on  this  ground. 
Church,    54    N.    Y.    Super.    Ct.     (22  144  Lyons  v.  Osborn,  45  Kan.  650, 
Jones  &  S.)  291.     See,  also.  Finch  v.  26  Pac.   31    (option  to  extend);    Sel- 
Underwood.  2  Ch.  Div.  310;  Squire  v.  den  v.  Camp,  95  Va.  527,  28  S.  E.  877. 
Learned,    196    Mass.    134,    81    N.    E. 


^  225  COMPLIANCE  BY  LEyBBE  WITH  COVENANTS.  1539 

ditioned  upon  the  performance  of  covenants,  he  having  complied 
with  the  covenant  before  the  time  for  demanding  a  renewal. 
J^n  insufficient  performance  of  such  a  covenant  may,  it  has  been 
decided,  be  accepted  by  the  lessor  as  a  complete  performance, 
so  as  to  entitle  the  lessee  to  a  renewal.i^« 

It  appears  to  be  the  rule  in  one  state  that,  even  when  compliance 
by  the  lessee  with  his  covenants  is  not  in  terms  made  a  condition 
precedent  to  the  right  of  renewal,  his  failure  in  this  respect  will 
be  ground  for  refusing  specific  performance  of  the  covenant 
for  renewal.14'  And  elsewhere  it  has  been  said  that  specific 
performance  will  not  be  decreed  if  there  is  a  provision  for  re- 
ertry  which  would  put  an  end  to  the  renewed  lease,  or  if  there 
has  been  a  gross  breach  of  covenant,  which  could  not  be  com- 
pensated by  damages.1^8  It  has  on  the  other  hand  been  decided 
that  the  pavment  of  all  arrears  of  rent  is  not  a  condition  pre- 
cedent to  the  right  of  renewal,  in  the  absence  of  any  provision 

to  that  effect.1^9 

An  actual  re-entry   for  breach  of   condition,  if  not  relieved 
against,  destroys  the  right  of  renewaL^^o  ^      ^ 

By  his  renewal  of  a  lease  the  lessor  does  not  waive  his  right 

145  See  Bastin   v.   Bidwell,  18   Ch.    lessor  had  a  right  of  re-entry,  should 
^.      „„<5  not  have  a  specific   performance   of 

UlV.    Zoo.  i.  1  >> 

140  Garnhart  v.  Finney,  40  Mo.  449,    an  agreement  for  a  lease. 
OS  Am    Dec    303    (covenant  to  erect        Where    the    person    applying    for 
buildings)      And    see    to    the    same    specific  performance  is   an  assignee 
effect  Job  v  Banister,  3  Jur.  (N.  S.)     of  the   leasehold,   the   fact  that  the 

assignment  to  him  was  in  violation 
147  Gannett  v.  Albree,  103  Mas-,  of  a  covenant  of  the  lease  seems 
372-  'Squire  v  Leirued,  196  Mass.  ground  for  refusal  of  specific  per- 
134'  81  N  E  880  124  Am.  St.  Rep.  '  formance,  since  the  lessor  was  en- 
525'  See  an  implication  to  this  titled  to  rely  on  the  lessee's  person 
effect  in  Incorporated  Soc.  in  Dub-  al  responsibility.  See  Finch  v.  Un- 
lin  V    Rose    3  Ir.  Eq.  257.  derwood,  2   Ch.   Div.   310;    Squire  v. 

148  Per  Cranworth,  L.  C,  in  Hare  Learned,  196  Mass.  134,  81  N.  E.  880, 
V  Surges,  5  Wkly.  Rep.  585.  In  124  Am.  St.  Rep.  525. 
Hill  v  Barclay,  18  Ves.  Jr.  56,  Lord  149  Tracy  v.  Albany  Exch.  Co.,  7 
Chancellor  Eldon  said:  "I  have  in-  N.  Y.  (3  Seld.)  472,  57  Am.  Dec. 
timated  my  opinion  that  a  tenant  538;  Kelly  v.  Varnes,  52  App.  Div. 
who  has  committed  waste,  treated  100,  64  N.  Y.  Supp.  1040.  Compare 
the  land  in  an  unhusbandlike  man-  Kentucky  Lumber  Co.  v.  Newell.  32 
ner  and  been  guilty  of  various  Ky.  Law  Rep.  396,  105  S.  W.  972. 
breaches  of  covenant,  for  which  the       "oMulloy  v.  Goff,  1  Ir.  Ch.  27. 


1540  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION,         §  226 

of  action  on  account  of  the  breach  of  a  stipulation  of  the  original 
loase/^i  even  though  the  stipulation  be  one  for  the  making  of 
certain  improvements,  and  this  stipulation  is  repeated  in  the 
renewal  lease.^^^ 

§  226.    Form  of  renewal. 

The  lease  may  be  renewed  by  an  endorsement  thereon,i53  pj-Q. 
vided  this  satisfies  the  requirements  of  the  Statute  of  Frauds. 

If  the  original  lease  contains  a  covenant  for  successive  renew- 
als, it  is  immaterial,  it  seems,  that  the  first  renewal  lease  eon- 
tains  no  covenant  for  a  further  renewal,^^^  though  such  omission 
may  perhaps  afi^ect  the  construction  of  the  original  covenant.^^^ 

A  new  oral  lease,  extending  the  period  of  the  holding  of  a 
tenant  who  is  in  under  a  lease  under  seal,  is  not  invalid  as  a 
parol  modification  of  an  executory  agreement  under  seaL^^*^  The 
lease  by  which  possession  was  originally  given  is  not  an  executory 
agreement  but  is  a  conveyance,  and  the  second  lease  is  another 
eonveyance.i^''^ 

A  subsequent  agreement  by  indenture,  that  the  lessee  may  con- 
tinue to  occupy  after  the  expiration  of  the  term,  until  remuner^ 
ated  from  rents  and  profits  for  improvements  made  by  him,  has 
been  regarded  as  valid  and  operative.^^s  j^^^^  ^  mere  agreement 
for  the  making  of  a  renewal  lease  for  another  year  has  been 
regarded  as  binding  the  lessee's  estate  for  the  rent  of  such  year, 
though  no  lease  was  made,  owing  to  the  lessee's  death  shortly 
after  the  expiration  of  the  original  term.^^a  In  order,  however, 
that  an  agreement,  made  subsequently  to  the  making  of  a  lease 

151  See  McGregor  v.  Board  of  Edu-  288,  43  N.  E.  393;  Martin  v.  Topliff, 
cation,  107  N.  Y.  511,  14  N.  E.  420;    88  111.  App.  362. 

Buhier  v.  Gibbons,  3  N.  Y.  Supp.  815.        157  See  ante,  §  16. 

152  Walker  V.  Seymour,  13  Mo.  592.        iss  Batchelder   v.    Dean,    16   N.    H. 

153  See  Grain   v.   Dresser,  4   N.  Y.    265. 

Super.    Ct.     (2    Sandf.)     120;     Pitts-  "o  American  Security  &  Trust  Co. 

burgh   Mfg.    Co.   v.  Fidelity  Title  &  v.  Walker,  23   App.  D.  C.   583.     The 

Trust  Co.,  207  Pa.  223,  56  Atl.  436.  reasoning  of  the  opinion  is  not  en- 

154  Gomez  v.  Gomez,  81  Hun,  566,  tirely  clear.  There  is  a  reference 
31  N.  Y.  Supp.  206.  to    the    doctrine   of    estoppel.     It    is 

iBsWurster  v.    Armfield,    67   App.  possible,  hov.'ever,  that  the  court  re- 

Div.  158,  73  N.  Y.  Supp.  609.  garded   the   agreement  as   constitut- 

156  West  Chicago  St.  R.  Co.  v.  Mor-  ing   an    actual    lease,    it   being    said 

rison,   Adams  &  Allen  Co.,    160   111.  that  tile  holding  over  was  "upon  an 


§  227  TERMS  OF  NEW  TENANCY.  1541 

for  a  certain  time,  may  have  the  effect  of  giving  the  lessee  a 
right  to  continue  in  possession  after  such  time,  in  the  contempla- 
tion, at  least,  of  a  court  of  law,  it  v^ould  seem  to  be  necessary 
that  such  agreement  be  construed  to  operate  as  a  lease.  A  mere 
agreement  for  extension,  made  subsequently  to  the  making  of 
the  lease,  cannot,  it  is  conceived,  change  the  operation  of  the 
previous  conveyance 


160 


§  227.    Terms  of  new  tenancy — Applicability  of  former  stipula- 
tions. 

As  previously  stated,  the  provision  for  renewal  is  presumed 
to  contemplate  a  new  lease  with  the  same  covenants  and  stipu- 
lations as  the  original  lease,  except  that  for  renewai/^^  unless  it 

express      contract      renewing      tlie  the  later  arrangement  or  agreement 

lease."  was  itself  a  lease.     So  in  Wood  v, 

160  That  a  lease  for  a  certain  per-  Edison    Elec.    Illuminating   Co.,   184 

led    cannot  be    made   to    operate    as  Mass.  523,  69  N.  E.  364,  100  Am.  St. 

a  lease  for  a  greater  period  merely  Rep.  573,  an  "agreement"  by  which 

because    the    parties    agree    that    it  a  lease  was  extended  for  five  years 

shall  so  operate  would  seem  to  be  and  eight  months  was   regarded  as 

beyond  question.     In  order  to  trans-  the  exercise  of  aji  option  to  extend 

fer  an  estate  for  the  additional  per-  for  five  years  contained  in  the  orig- 

iod,  a   lease,  that  is,  a  conveyance,  inal  lease,  without  any  explanation 

is  necessary.     There  is  no  more  rea-  by  the  court  as  to  how  the  right  to 

son  that  the  parties  should  be  able  the    possession    for   the    extra    eight 

by  agreement   to  cause  a   lease   for  months  could  be  divested  out  of  the 

one  year  to  operate  as  a  lease   for  lessor  and  vested  in  the  lessee,  with- 

eighteen  months,   for  two  years,  or  out  a  conveyance  thereof.     See,  also, 

for  ninety-nine  years,  than  that  they  the  statement  of  the  N&w  York  Court 

should    be    able    so    to    cause    it    to  of  Appeals   in   Ward   v.   Hasbrouck, 

operate  as  a  conveyance  in  fee  sim-  169   N.   Y.   407,   62   N.   E.   434,  ante, 

pie.     There   are,    however,    at    least  note  1. 

dicta  by   a  court   of   high   standing        ici  w^alker  v.  Wadley,  124  Ga.  275, 

opposed   to  this   view.     In   DeFriest  52  S.  E.  904;   Belinski  v.  Brand,  76 

V.  Bradley,  192  Mass.   346,  78  N.  E.  111.  App.  404;   Hughes  v.   Windpfen- 

467,   it   is  said  that  "it  was   within  nig,  10  Ind.  App.  122;  Brown  v.  Par- 

the  contractual  power  of  the  parties  sons,  22  Mich.  24;  McAdoo  v.  Callum, 

by  a   later  arrangement  to  prolong  86  N.  C.  419;  Bamman  v.  Binzen,  65 

the    term    although    the    lea^e    was  Hun,  39,  19  N.  Y.  Supp.  627;  Phelps 

silent  on  this  subject,"  and  that  "the  v.  City  of  New  York,  61  Hun,  521, 

original  demise  was  thereby  length-  16  N.  Y.  Supp.  321;  Whalen  v.  Leisy 

ened     to     cover     the     longest     time  Brew.   Co.,  106  Iowa,  548,  76  N.  W. 

named."    There  is  no  suggestion  that  842;  Western  New  York  &  P.  R.  Co, 


1542  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.  §  227 

is  otherwise  expressly  provided.^^^  ^  stipulation  clearly  appli- 
cable only  to  the  original  lease  is  not,  however,  to  be  incorporated 
in  the  renewal  lease.^*^^ 

V.  Rea,  83  App.  Div.  576,  81  N.  Y.  E.  726.  In  Walsh  v.  Martin,  69 
Supp.  3093;  Bernstein  v.  Heineniann,  Mich.  29,  37  N.  W.  40,  it  was  tield 
23  Misc.  464,  51  N.  Y.  Supp.  467  (de-  that  an  indorsement  on  the  lease 
posit  to  secure  rent).  giving  to   the   lessee   the    "privilege 

Where  a  lease  provided  that,  un-  of  occupying"  the  premises,  with 
less  notice  was  given  by  the  lessor  additional  ground,  for  anoi.her  term, 
six  months  before  the  expiration  of  and  giving  the  lessor  a  right  to  the 
the  term  of  fifteen  years,  to  the  improvements  erected  by  the  lessee, 
effect  that  he  would  then  take  pos-  a  right  not  given  by  the  original 
session  and  pay  for  certain  build-  lease,  was  a  "new  leasing,  and  not 
Ings  to  be  erected  by  the  lessee,  the  an  extension  of  the  old  lease,"  and 
lease  should  be  deemed  to  be  re-  consequently  was  not  subject  to  a 
newed  for  another  term  of  five  years  provision  of  the  latter  prohibiting  an 
upon  the  same  terms  and  conditions,    assignment. 

It  was  held  that  the  lessee's  right  les  Hill  v.  Beatty,  61  Cal.  292. 
to  payment  for  the  buildings  con-  In  Rutgers  v.  Hunter,  6  Johns, 
tinued  after  the  expiration  of  the  Ch.  (N.  Y.)  214,  it  is  said  by 
first  fifteen  years,  if  the  lease  was  Chancellor  Kent:  "It  would  be 
not  then  terminated,  and  the  lessor  absurd  to  suppose  that  an  agree- 
was  liable  for  the  buildings  upon  ment  to  renew  a  lease  did  necessar- 
his  termination  of  the  lease  at  any  ily  imply  a  lease,  not  only  of  the 
subsequent  five-year  period.  Schoell-  same  term  and  rent,  but  also  with 
kopf  V.  Coatsworth,  166  N.  Y.  77,  59  all  the  covenants  in  the  other,  and 
N.  E.  710.  Compare  Precht  v.  How-  which  are  the  accidental  and  not  the 
ard,  187  N.  Y.  136,  79  N.  E.  847.  essential   parts    of    a   lease.     In    the 

It  has  been  decided  that  the  re-  first  lease,  there  was  a  covenant  on 
newal  of  a  lease  did  not  involve  the  the  part  of  the  lessee  to  build  a 
renewal  of  a  contract,  made  during  good  brick  dwelling  house  within  two 
the  currency  of  the  first  lease,  to  years.  This  was  a  covenant  that 
furnish  steam.  Slack  v.  Knox,  213  had  no  necessary  and  could  not  have 
111.  190,  72  N.  E.  746,  68  L.  R.  A.  606,  any  reasonable  connection  with  the 
distinguishing  Thomas  v.  Wiggers,  renewal  of  the  lease;  and  the  same 
41  111.  470,  on  the  ground  that  there  observation  will  apply  to  the  cov- 
the  contract  to  furnish  steam  was  enant  on  the  part  of  the  lessor  to 
contained  in  the  original  instrument  pay,  at  the  expiration  of  the  lease, 
of  lease  and  was  part  of  the  con-  the  value  of  such  house,  and  of 
sideration  for  the  rent  agreed  to  be  other  buildings  and  improvements  to 
paid.  be  made,   built  and   erected   on   the 

1R2  An  express  provision  as  to  the  lot,  or  to  renew  the  lease."  So  in 
covenants  to  be  inserted  in  the  re-  Pierce  v.  Grice,  92  Va.  763,  24  S.  E. 
newal  lease  must  obviously  be  com-  392,  it  seems  to  be  decided  that  an 
plied  with.  See  Martin  v.  Babcock  option  in  the  lessor  to  pay  for  build- 
&  Wilcox  Co.,  186  N.  Y.  451,  79  N.    ings   or  to   renew  is  not  to   be  in- 


§  227  TERMS  OF  NEW  TENANCY.  I543 

It  has  been  decided  that  where  one,  to  whom  a  leasehold  in 
part  of  the  premises  had  been  assigned,  thereafter  created  an 
easement  in  favor  of  the  assignee  of  the  other  part,  the  ease- 
ment continued  upon  the  granting  of  renewal  leases  to  such  as- 
signees.^ ^^  A  renewal  of  a  lease  upon  the  same  "terms"  was 
held  to  give  the  lessors  the  same  option  to  terminate  upon  six 
months'  notice  as  was  given  by  the  original  lease,^''^  and  a  con- 
tract to  renew  "on  the  same  terms  and  conditions"  has  been 
regarded  as  entitling  the  lessor  to  demand,  as  a  condition  of  re- 
newal, a  surety  for  rent  equal  to  the  one  furnished  on  the  orig- 
inal leasing.^  ^^ 

Covenants  in  the  renewal  lease  are,  it  has  been  said,  to  be 
construed  as  if  the  renewal  constituted  the  inception  of  the  re- 
lation of  landlord  and  tenant  between  the  parties.^'*''' 

In  the  case  of  extension  under  an  option  in  the  lessee,  as  in 
that  of  a  renewal  under  a  covenant,  the  stipulations  named  in 
the  original  term  continue  into  the  extended  period.^  ®8  j^^it  in 
one  case,  where  the  provision  for  extension  was  oral,  it  was 
stated  to  be  a  question  for  the  jury  whether  certain  terms  of  the 
lease  were  to  be  applied  to  the  extended  period.^^^ 

serted  in  the  renewal  lease.     But  it  lee  piper  v.  Levy,  114  La.  544,  38 

was  decided  that,  where  a  lease  pro-  So.  448. 

Tided    that    a   holding    over   by    the  igt  Phelps  v.  City  of  New  York,  61 

lessee  for  thirty  days  should  be  con-  Hun,  521,  16  N.  Y.  Supp.  321. 

strued  as  a  renewal  of  the  lease  on  les  Betts    v.    June,    51    N.    Y.    274. 

the  same  terms   and   conditions   for  As   to   the   construction    of  a  provi- 

another  twelve  months,  such  holding  sion  for  notice  to  terminate,  as  ap- 

over   involved    an    extension    of   the  plying  to  the  extended  term  as  well 

lessor's  covenant  to  make  certain  re-  as  to  the  original  term,  see  McGregor 

pairs.     Harthill   v.    Cook's    Bx'r,    19  v.    Rawle,    57    Pa.    184;     Wilcox    v. 

Ky.    Law  Rep.    1524,   43   S.   W.   705.  Montour   Iron  &   Steel   Co.,    147   Pa. 

And  see  In  re  Coatsworth,  160  N.  Y.  540,  23  Atl.  840;   Ashurst  v.  Eastern 

114,  54  N.  E.  665,  ante,  note  161.  Pennsylvania    Phonograph    Co.,    166 

164  Newhoff  V.  Mayo,  48  N.  J.   Eq.  Pa.  357,  31  Atl.  116. 

619,  23  Atl.  265,  27  Am.  St.  Rep.  455.  ifis  Powers  v.  Cope,  93  Ga.  248.  18 

165  Quidort  v.  Bullitt,  60  N.  J.  Law,  S.  E.  815.  In  Wood  v.  Edison  Elec. 
119,  36  Atl.  881.  And  to  the  same  Illuminating  Co.,  184  Mass.  523,  69 
effect,  see  DePriest  v.  Bradley,  192  N.  E.  364,  100  Am.  St.  Rep.  573,  it 
Mass.  346,  78  N.  E.  467,  where  it  was  regarded  as  a  question  for  the 
was  held  that  an  oral  agreement  for  jury  in  the  particular  case  whether 
an  extension,  not  giving  such  an  an  extension  of  the  lease  agreed  up- 
option,  was  merged  in  a  subsequent  on  by  the  parties  during  f]-\e  terra 
written  extension.  was   intended   as  an  exercise  of  an 


1544  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION,         §  228 

§  228.    Appraisement  to  ascertain  rent. 

It  is  not  infrequently  the  case  that  the  parties,  in  agreeing  for 
the  renewal  or  extension  of  the  lease,  provide  that  the  amount  of 
rent  to  be  paid  during  the  term  of  such  renewal  or  extension 
shall  be  fixed  by  a  person  or  persons  named,  or  to  be  named,  the 
provision  usually  stipulating  that  the  rent  shall  be  a  certain  per- 
centage upon  the  value  of  the  property  as  determined  by  such 
person  or  persons. ^"^^ 

It  has  been  held  that  when  the  lease  provided  that  a  renewal 
should  be  granted  at  such  "increased"  rent  as  might  be  awarded 
by  arbitrators,  the  arbitrators  were  bound  to  award  an  increased 
rent,  but  that  a  nominal  increase  was  sufficient.^'^i  The  value 
of  the  land,  for  the  purpose  of  fixing  the  rent  by  arbitration,  is, 
it  has  been  decided,  its  value  exclusive  of  the  buildings  which 
may  have  been  erected  by  the  tenant  under  the  lease.^'^^ 

In  case  one  of  the  parties  refuses  to  carry  out  such  an  agree- 
ment, by  joining  in  the  naming  of  appraisers  for  this  purpose, 
he  waives  his  right  to  the  renewal,  it  has  been  decided,  at  the 
option  of  the  other  party.^^^  Rut  the  landlord's  delay  in  this 
regard  has  been  held  not  to  afl'ect  his  right  to  collect  rent  for 
the  whole  of  the  new  term  on  the  basis  of  the  new  valuation,  this 
having  been  finally  made.^^^  For  such  a  breach  of  his  contract, 
either  party  is  liable  in  damages  in  an  action  at  law.^"^^ 

The  question  whether  equity  will  decree  specific  performance 
of  such  an  agreement  to  renew  or  extend  the  lease,  at  a  rent  to 
be  determined  by  third  persons,  is  one  of  some  difficulty.  That 
it  will  not  do  so  has  occasionally  been  asserted,  on  the  ground, 

option   to   extend   contained    in   the  Van  Brocklin  v.  Town  of  Brantford, 

lease,   so   as    to    make    applicable    a  20  U.  C.  Q.  B.  347. 

provision  in  such  option  as  to  pay-  i^s  Wells  v.  DeLeyer,  1  Daly    (N. 

ment  of  taxes.  Y.)   39. 

iTo  As  to  the  ascertainment  of  the  174  Hegan    Mantel    Co.    v.    Cook's 

value  in  the  case  of  adjoining  par-  Adm'r,  22  Ky.  Law  Rep.  427,  57   S. 

eels  leased  by  separate  demises  by  W.  929. 

the  same  lessor  to  the  same  lessee,  175  Garnhart  v.  Finney,  40  Mo.  449, 

see  Livingston  v.  Sage,  95  N.  Y.  289,  93  Am.  Dec.  303;    Greason  v.  Ketel- 

47  Am.   Rep.   41.  tas,  17  N.  Y.  491;  Hopkins  v.  Oilman, 

171  In  re  Geddes,  3  Ont.  Law  Rep.  22  Wis.  476.  See  Tscheider  v.  Bid- 
75.  die,  4  Dill.  58,  Fed.  Cas.  No.  14,210. 

172  In  re  Allen,  27  Ont.  App.  536; 


§  338  APPRAISEMENT  TO  ASCERTAIN  RENT.  1545 

it  is  said,  that  to  do  so  would  in^'olve  the  specific  performance 
of  an  agreement  to  submit  to  arbitration,  a  thing  which  equity- 
will  always  refuse.i'^^  It  is  very  questionable,  however,  whether 
such  an  agreement  for  appraisement  by  third  persons  is  properly 
to  be  considered  one  for  arbitration,^"  the  purpose  of  the  nomina- 
tion of  such  persons  not  being  the  settlement,  by  a  quasi  judicial 
inquiry,  of  a  controversy  which  has  already  arisen,  as  is  an  ordi- 
nary arbitration,  but  rather  the  prevention  of  any  future  contro- 
versy from  arising,! 7s  and  the  more  substantial  objection  to  the 
award  of  specific  performance  in  such  a  case  is  that  the  contract 
is  incomplete  so  long  as  the  amount  of  rent  is  undetermined,  re- 
lief of  that  character  not  being  granted  in  the  case  of  an  incom- 
plete contract.! "9  On  this  theory  it  has  been  decided  in  England 
that  specific  performance  will  not  be  decreed  of  a  contract  for 
the  sale  of  land  at  a  valuation  to  be  determined  by  third  per- 
sons.iso  But  a  different  rule  has  been  applied  there,! si  and  in  at 
least  one  state,!  §2  when  such  a  provision  for  the  ascertainment 
of  the  price  can  be  regarded  as  subsidiary  or  nonessential,  or  the 
contract  for  the  purpose  of  which  the  valuation  is  to  be  made  is 
merely  incidental  to  another  contract,  the  contract  being  then  in 
effect  treated  as  one  for  a  sale  at  a  fair  price,  to  be  ascertained 
by  the  court  if  the  provision  for  valuation  by  appraisers  is  not 
carried  out.  It  is  perhaps  upon  the  theory  that  the  provision 
for  the  determination  of  the  rent  upon  a  renewal  can  be  thus  re- 
garded as  of  a  nonessential  or  subsidiary  character,!^^  that  it  has 

"6  Greason   v.   Keteltas,   17  N.  Y.  Pomeroy,  Spec.  Perform.  §  151. 

491;  Hopkins  V.  Oilman,  22  Wis.  476.  182  Town    of   Bristol    v.    Bristol    & 

See  Tscheider  v.  Biddle,  4   Dill.  58,  Warren   Waterworks,    19    R.    I.    413, 

Fed.  Cas.  No.  14,210.  34  Atl.  359,  32  L.  R.  A.  740. 

ITT  See  3  Cyclopedia  of  Law  &  Proc.  is3  it  seems  to  be  so  regarded   In 

583.  Strohmaier  v.  Zeppenfeld.  3  Mo.  App. 

ITS  See   In   re  Carns-Wilson,  18   Q.  429;    Coles  v.  Peck,  96  Ind.  333,  49 

B.  Div.  7;  Redman,  Arbitrations  (3d  Am.   Rep.  161;    Springer  v.  Borden, 

Ed.)    3.  154  111.  668,  39  N.  E.  603.     In  Goiir- 

179  Fry,  Spec.  Perform,  c.  3;   Pom-  lay    v.    Somerset,    19    Ves.    Jr.    429, 

eroy.  Spec.  Perform.  §  149  et  seq.  where  there  wag  a  contract  to  give" 

isoMilnes  v.  Gery,  14  Ves.  Jr.  400;  a   lease   with  such   conditions  as   A 

Darbey   v.   Whitaker,    4    Drew.    134;  should  think  proper,  it  was  held  that 

Fry,   Spec.  Perform.  §   355  et  seq.  the  approval  of  A  was  not  essential, 

181  Hall  V.  Warren,  9  Ves.  Jr.  605;  and    the  court   left  the  question   of 

Richardson   v.    Smith,   L.    R.    5    Pn.  the   conditions   of  the   lease  to   the 

648;  Fry,  Spec.  Perform.  §§  364-367;  master. 


1546  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.         §  228 

been  decided  that  if  either  the  lessor  or  lessee  refuses  to  name 
an  appraiser/^'*  or  they  cannot  agree  upon  one,^^^  or  the  one 
agreed  upon  cannot  act,^^^  equity  will  decree  specific  perform- 
ance, the  rent  being  fixed  by  a  master  or  otherwise  under  the 
direction  of  the  court.  And  one  decision,  to  the  effect  that  equity 
will  itself  fix  the  rent  if  the  arbitrators  disagree,  is  explicitly 
based  on  such  theory. '^^'^ 

The  fact  that  the  lessee  has  made  improvements  upon  the  prem- 
ises on  the  strength  of  a  stipulation  for  renewal  or  extension 
at  a  rent  to  be  fixed  by  appraisement  has,  in  one  or  two  cases, 
been  regarded  as  a  reason  for  the  grant  of  relief  in  equity  in 
favor  of  the  lessee.^  ^^  In  one  case  it  was  decided  that,  while 
specific  performance  could  not  be  granted  in  such  case,  equity 
had  jurisdiction,  on  the  ground  of  fraud,  account,  and  prevention 
of  a  multiplicity  of  suits,  of  a  bill  by  the  lessor  alleging  that  the 
lessee  had  refused  to  name  impartial  appraisers,  and  had  sc- 
occupied  the  premises  for  several  years  without  paying  rent,  and 
that  the  agreement  also  provided  for  an  appraisement  of  the 
improvements,  the  lessor  having  the  option  of  taking  them  at  that 
valuation  or  of  granting  a  renewal  lease  at  the  rent  to  be  fixed 
by  the  appraisers.^  ^^ 

There  is  a  decision  to  the  effect  that  the  tenant  may,  until  the 
appraisement  is  made,  consider  himself  tenant  from  year  to  year 
at  the  original  rent,  and  that  if  delay  in  the  appraisement  is 
caused  by  the  lessor,  he  may  recover  rent,  until  the  new  lease 
is  tendered,  at  the  rate  fixed  in  the  previous  lease,  and  thereafter 
at  the  rate  fixed  by  the  appraisement.^  ^° 

184  Kelso  V.  Kelly,  1  Daly  (N.  Y.)    Weir  v.   Barker,  104  App.  Div.  112, 
419;     Graham    v.    James,    30    N.    Y.   93  N.  Y.  Supp.  732. 
Super.    Ct.    (7    Rob.)    468;    Johnson       is- Kaufman  v.  Liggett,  209  Pa.  87, 
V.  Conger,  14  Abb.  Pr.   (N.  Y.)   195;    58  Atl.  129,  67  L.  R.  A.  353,  103  Am. 
Strohmaier  v.  Zeppenfeld,  3  Mo.  App.    St.  Rep.  9SS. 

429.  See  Tscheider  v.  Biddle,  4  Dill.  iss  See  Tscheider  v.  Biddle,  4  Dill. 
58,   Fed.   Gas.  No.   14,210.  58.  Fed.  Gas.  No.  14,210;  Kaufman  v. 

isspiggot  V.   Mason,   1  Paige    (N.    Lig.gett,  209  Pa.  87,  58  Atl.  129,  67  L. 
Y.)   412;  Springer  V.  Borden,  154  111.    R.  A.   "53,  103  Am.   St.   Rep.   988. 
668,  39  N.  E.  603.  i^n  Biddle  v.  Ramsey,  52  Mo.  159. 

186  viany  v.  Ferran,  5  Abb.  Pr.  (N.        i9o  Ryder  v.  Jenny,  25  N.  Y.  Super. 
S.)   riG,  54  Barb.  (N.  Y.^   5^9.     And    Ct.    (2  Rob.)    56. 
so  when  cue  of  the  appraisers  died. 


§  229      QUALIFIED  RIGHT  TO  RENEWAL  OR  EXTENSION.  1547 

§  229.    Qualified  right  to  renewal  or  extension. 

Occasionally  the  provision  for  a  renewal  or  extension  is  quali- 
fied by  a  provision  extending  its  operation  in  a  particular  con- 
tioigency,   or  making   it   operative   in   a  particular  contingency 

A  provision  that  the  lessee  should  be  entitled  to  a  renewal  or 
extension  in  case  the  lessor  did  not  sell  the  premises  ^^^  was  held 
to  be  inapplicable  when  the  lessor  made  a  valid  executory  agree- 
ment of  sale,  entitling  the  vendee  to  a  conveyance.^^^  Elsewhere 
it  was  held  that  such  a  provision  referred  to  an  open  and  notor- 
ious sale,  and  a  sale  and  conveyance  to  the  lessor's  wife,  of  which 
the  lessee  had  no  notice,  did  not  deprive  him  of  the  right  to  the 
crops  sown  by  him  after  the  end  of  the  original  term.i'^^  n  -yy^s 
decided  in  one  state  that  where  the  lease  allowed  a  renewal  un- 
less the  "lessors"  shall  sell  said  premises,  the  right  to  a  renewal 
was  not  defeated  by  the  sale  by  one  lessor  of  his  interest  in  the 
premises. ^^^  But  it  has  elsewhere  been  decided  that  a  convey- 
ance to  the  lessor's  son,  by  way  of  advancement,  is  a  "disposing 
of"  the  premises  within  the  meaning  of  a  covenant  by  the  lessor 
that  if  the  lessee  did  not  elect  to  exercise  his  option  to  purchase 
he  might  have  a  renewal,  unless  the  lessor  should  "dispose  of" 
the  premises,  and  this  even  though  the  purpose  of  the  conveyance 
was  to  avoid  a  renewal.^^^ 

A  provision  that  the  lessor  shall  grant  a  renewal  unless  the 
lessor  wishes  the  land  for  building  purposes  justifies  a  grantee 
of  the  reversion  in  declining  to  renew  if  he  desires  to  so  use  the 

i9oa  The  extension  may,  it  appears,  privilege  became  void  in  case  of  a 

"be   dependent   on   the  lessee's   com-  sale    either    before    the    commence- 

pliance    with    some    condition,    such  ment   of    such    two    years    or   while 

as  giving  security  for  rent.  See  Mc-  they     were     running.     Knowles     v. 

Fadden  v.  McCann,  25  Iowa,  252.  Hull,  97  Mass.  206. 

191  See  Swank  v.  St.  Paul  City  R.  102  Sutherland     v.     Goodnow,     108 

Co.,    61   Minn.   423,    63    N.   W.    1088;  111.   528,  48  Am.  Rep.  560. 

Pfanner  v.  Sturmer,  40  How.  Pr.  (N.  103  stark ey  v.  Horton,  65  Mich.  96, 

Y.)   401.     Where  the  lease  gave  "the  31  N.  W.  626. 

privilege   of   two   years    in    addition  194  Ewing   v.    Miles,    12    Tex.    Civ. 

unless     the     lessor     shall     sell,"     in  App.  19.  33  S.  W.  235. 

which   case   the   privilege   "shall    be  195  Elston  v.  Schilling,  42  N.  Y.  79. 
null  and  void,"  it  was  held  that  the 


1548  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.         S  230 

land/o«  but  he  cannot  legally  avoid  a  renewal  in  such  case  by 
leasing  to  another  who  contracts  to  build. ^^^ 

Where  the  lease  provided  that  if  the  lessor  should,  during  cer- 
tain months,  "decide,  by  notice  given  to  the  lessee  in  writing," 
not  to  rebuild,  then  the  lessee  might  elect  to  renew  the  lease,  the 
lessee's  right  of  renewal  was  held  not  to  depend  upon  the  giving 
of  notice  by  the  lessor,  but  upon  the  fact  that  he  made  the  de- 
cision, the  provision  for  notice  being  purely  for  the  lessee 's  bene- 
fit.i»8 

Not  infrequently  there  is  a  provision  in  the  alternative,  requir- 
ing the  lessor  either  to  renew  or  to  pay  for  the  lessee's  build- 
ings.199 

It  has  been  decided,  upon  the  construction  of  a  particular 
lease,  that  a  covenant  to  renew  the  lease  was  inapplicable  when 
a  part  of  the  premises  had  been  surrendered  during  the  first 
term.'Oo  EJsewhere  it  was  decided  that  when  a  part  of  the  leased 
premises  had  been  condemned  for  public  use  before  the  time  for 
exercising  the  option  as  to  renewal,  the  lessor  need  tender  a 
lease  for  so  much  only  of  the  premises  as  remained  in  his  pos- 
session and  under  his  control.-^i 

§  230.     Persons  to  whom  stipulations  available. 

A  covenant  by  the  lessor  for  renewal  is  one  which  runs  with 
the  land,  and  the  assignee  of  the  leasehold  is  entitled  to  the 
benefit  thereof. 20 2     And  the  fact  that  the  assignment  is  in  terms 

196  Leppla  V.  Mackey,  31  Minn.  75,    N.  E.  23,  2  L.  R.  A.  549. 

16  N.  W.  470.  202Buckland   v.   Papillon,  L.   R.   1 

197  Broadway  &  S.  A.  R.  Co.  t.  Eq.  477;  Crosbie  v.  Tooke,  1  Mylne 
Metzger,  27  Abb.  N.  C.  (N.  Y.)  160  &  K.  431;  Sutherland  v.  Goodnow, 
(provision   for  extension).  108  111.  528,  48  Am.  Rep.  560;   Pitz' 

198  Seaver  v.  Thompson,  189  111.  gerald  v.  Jones,  96  Ky.  296,  28  S.  W. 
158.  59  N.  E.  558.  963;   Connor  v.  Withers,  20  Ky.  Law 

199  See  post,  §  271  a.  Rep.  1326,  49  S.  W.  309;  McClintock 

200  Barge  v.  Schiek,  57  Minn.  v.  Joyner,  77  Miss.  678,  27  So.  837, 
155,  58  N.  W.  874.  The  dissenting  78  Am.  St.  Rep.  541;  Blackmore  v. 
opinion  of  Canty,  J.,  is  based  chiefly  Boardman,  28  Mo.  420;  Kolasky  v, 
upon  the  ground  that  the  words  of  Michels,  120  N.^  Y.  635,  24  N. 
the  lease  ("with  the  privilege  to  E.  278;  Piggot  v.  Mason,  1  Paige 
the  lessee  of  another  term")  did  (N.  Y.)  412;  Barclay  v.  Steam- 
not  provide  for  a  renewal  but  mere-  ship  Co.,  6  Phila.  (Pa.)  558;  Ear- 
ly gave  the  lessee  an  option  of  ex-  bee  v.  Greenberg.  144  N.  C.  430  57 
tension.  S.  E.  125.    A  demand  for  the  renew- 

»iLeiter  v.  Pike,  127  111.  287,  20 


§  230         PERSONS  TO  WHOM  STIPULATIONS  AVAILABLE.  1549 

only  for  the  residue  of  the  existing  term  is  immaterial  in  this  re- 
spect.203  So,  no  doubt,  the  assignee  of  the  leasehold  is  entitled 
to  the  benefit  of  an  option  for  extension,  as  distinguished  from 
o.ne  for  renewal,^^^  unless  the  assignment  is  so  expressed  as 
to  operate  only  on  the  original  term.  But  though,  it  seems,  in 
the  case  of  such  an  option  to  extend,  since  there  is  an  existing 
lease  for  the  additional  term,205  the  assignment  may  be  of  the 
original  term  only,  the  assignor  retaining  the  additional  term,  a 
different  rule  has  occasionally  been  applied  in  the  case  of  a  cov- 
enant for  renewal,  this  being  regarded  as  inseparable  from  the 
original  term.-'^'^ 

A  lessee  who  has  assigned  is  not  liable  for  rent  under  a  renewal 
lease  made  to  his  assignee,207  though  he  is  liable,  even  after  as- 
signment, if  the  renewal  lease  was  made  to  him,208  as  is  a  lessee 
who  exercises  his  privilege  of  extension  and  afterwards  assigns.^o^ 

Upon  the  bankruptcy  of  the  lessee,  the  benefit  of  the  renewal 
clause  passes  to  the  trustee  in  bankruptcy .210  Upon  the  death 
of  the  lessee,  the  right  of  renewal  passes,  along  with  the  lease- 
hold, to  his  personal  representative^!! 

al  is  properly  made  by  the  assignee,  first   term    named.     The   opinion   Is 

Warner  v.  Cochrane,  63  C.  C.  A.  207,  obscure.     Emery   v.    Hill,    67    N.   H. 

128  Fed.  553.  S30,  39  Atl.  266,  is  also  to  the  effect 

203  Downing  v.  Jones,  11  Daly  (N.  that  one  to  whom  the  leasehold  is 
Y.)  245;  Phelps  v.  Erhardt,  24  N.  Y.  assigned  in  violation  of  a  covenant 
St.  Rep.  380,  5  N.  Y.  Supp.  540.  is  not  entitled  to  the  benefit  of  an 

204  See    Wilkinson    v.     Pettit,    47  option  to  extend. 
Barb.     (N.    Y.)     230.     In    Fisher    v.        205  See  ante,  §  218. 

Slattery,    75    Cal.    325,    17   Pac.    235,  20c  Blackmore  v.  Boardman,  28  Mo. 

there    are,    perhaps,    expressions    to  420;    Winton's  Appeal,   111  Pa.   387, 

the  effect  that  one  who  takes  an  as-  5  Atl.  240    ("privilege  of  refusal  of 

signment,    without    the    lessor's    as-  subsequent    lease").     But    in    Owen 

sent,  in  violation  of  a  covenant  in  v.  Williams,  Amb.   734,  the  right  of 

the    lease,    is    not    entitled    to    the  renewal   is   regarded   as   susceptible 

benefit  of  an  option  for  an  extension,  of  sale. 

But   since   a  breach   of   such  a  cov-  2»7  James  v.  Pope,  19  N.  Y.  324. 

enant   does   not,   by   the    weight   of  208  Thompson's  Estate,  205  Pa.  555, 

authority,  render  the  assignment  in-  55  Atl.  539. 

valid    (ante,  §  152  j   [2]),  it  is  not  209  probst     v.     Rochester     Steam 

apparent    why   it    should    affect   th^-  Laundry  Co.,  171  N.  Y.  584,  64  N.  E. 

assignee's    right    to    enjoy    the    full  504. 

term,   which,   as    appears    above,    is  210  Olden  v.  Sassman,  67  N.  J.  Eq. 

already  existent  for  the  full  extend-  239,  57  Atl.  1075. 

ed   period,  though   liable  to  be   cut  211  Hyde   v.    Skinner,    2    P.   Wme. 

off  by  the  lessee  at  the  end  of  the  196. 


1550  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.  §  231 

If  the  leasehold  in  different  parts  of  the  leased  premises  is 
assigned  to  different  persons,  they  may  join,  it  has  been  decided, 
in  demanding  performance  of  a  covenant  for  renewal. 212 

If  the  leasehold  belongs  to  two  or  more,  one  of  them  cannot 
exercise  the  right  of  election  on  behalf  of  all,^!^  and  it  has  been 
decided  that  he  cannot  have  the  renewal  lease  made  to  himself 
alone,  even  though  he  has  received  an  assignment  of  his  colessee's 
interest,  if  there  is  a  covenant  against  assignment  and  a  provi- 
sion that  the  renewal  shall  be  subject  to  the  same  covenants, 
these  being  regarded  as  indicating  an  intention  that  the  cov- 
enants in  the  renewal  lease  should  be  joint  and  several  on  the 
part  of  both  lessees. 21*  In  the  case  of  a  lease  to  a  partnership, 
one  partner  cannot  demand  that  a  renewal  lease  be  made  to  him 
after  the  withdrawal  of  the  other  partners  from  the  business.^i^ 
A  surviving  partner  may,  however,  demand  a  renewal  on  behalf 
of  the  partnership  estate.^i^ 

§  231.    Persons  against  whom  stipulations  available. 

A  covenant  by  the  lessor  for  renewal  is  binding  on  the  grantee 
of  the  reversion,  as  being  a  covenant  running  with  the  land,^!'^ 
though  he  is  entitled  to  the  benefit  of  any  qualification  in  the 
covenant,  as  when  he  is  not  to  renew  if  he  desires  to  use  the 
land  for  other  purposes.^is  Likewise,  the  tenant  may  assert  his 
optioo  of  an  extension,  as  distinguished  from  that  of  rencAval, 
against  the  grantee  of  the  reversion  as  well  as  against  the  les- 
sor.219  The  grantee  is,  by  reason  of  the  lessee's  possession, 
charged  with  notice  of  the  lease  and  of  the  covenant  for  renewal 

212  Cook  V.  Jones,   96  Ky.  283,   28        21G  Betts  v.  June,  51  N.  Y.  274. 

S.   W.   9G0.  ^^^  Richardson     v.     Sydenham,     2 

213  Howell  V.  Behler,  41  W.  Va.  Vern.  447;  Simpson  v.  Clayton,  4 
610,  24  S.  E.  64G.  See  Tweedie  v.  Bing.  N.  C.  758;  Leiter  v.  Pike,  127 
P.  E.  Olson  Hardware  &  Furniture  111.  287,  20  N.  E.  23,  2  L.  R.  A.  549; 
Co.,  96  Minn.  238,  104  N.  W.  895,  Bratt  v.  Woolston,  74  Md.  609,  7  AtL 
1089;  Id.,  98  Minn.  11,  107  N.  W.  557.  563;  Leominster  Gaslight  Co.  v.  Hil- 

214  Finch  V.  Underwood,  2  Ch.  Div.  lery,  197  Mass.  267,  83  N.  E.  870,  15 
310.  L.  R.   A.    (N.   S.)    243,  125   Am.   St. 

215  Buchanan  v.  Whitman,  151  N.  Rep.   361. 

Y.  253,  45  N.  E.  556;  Id.,  76  Hun,  67,        218  Leppla    v.    Mackey,    31    Minn. 

27  N.  Y.  Supp.  604;    James  v.  Pope,    75,  16  N.  W.  470. 

19  N.  Y.  324.  219  Callan  v.  McDaniel,  72  Ala.  96. 


§  232  COVENANT  BY  SUBLESSOR  TO  RENEW.  1551 

contained  in  the  instrument,- 20  as  he  is  by  a  reference  to  the 
lease  in  the  conveyance  to  him.221 

A  covenant  for  renewal,  made  by  one  who  has  himself  merely 
a  limited  interest  in  the  land,  such  as  a  life  estate,  does  not  bind 
the  land  beyond  that  interest,  and  runs  with  the  land  only  to 
the  extent  of  that  interest.  Consequently,  it  cannot  be  enforced 
after  the  termination  of  such  limited  interest,  even  as  against 

am  assignee  of  such  interest  who  acquires  the  reversion  or  re- 
mainder.222 

§  232.    Covenant  by  sublessor  to  renew. 

A  sublessor  who  has  covenanted  with  his  own  lessee  to  use  his 
utmost  endeavors  to  procure  a  renewal  of  his  own  lease  is  bound, 
it  has  been  held,  to  pay  any  reasonable  sum  which  may  be  re- 
quired  for  such  renewal.223     And  he  is  not  relieved  from  his  ob- 
ligation to  fulfill  his  covenant  with  his  lessee  to  renew  by  the  fact 
that,  in  taking  a  new  lease  himself,  he  has  been  compelled  to  pay 
an  increased  rent,  or  to  submit  to  more  onerous  conditions,  nor 
is  he  thereby  justified  in  charging  an  increased  rent,  or  imposing 
upon  the  sublessee  burdens  greater  than  those  imposed  by  his 
original  lease.224     ''The  only  way  by  which  the  obligation   of 
such  a  covenant  (to  renew  for  such  further  term  as  his  own  lease- 
hold estate  may  be  renewed  or  extended)  can  be  escaped  is  h}} 
the  covenantor's  abandonment  of  the  estate,  without  a  direct  or 
indirect  renewal  of  his  own  tenancy.  "225     it  has  been  decided 

220  Cunningham  v.  Pattee,  99  Mass.  Lloyd  &  G.  t.  Plunk,  283;  John  Pol- 
248.  See  Shelburne  v.  Biddulph,  6  hemus  Print.  Co.  v.  Wynkoop  30 
Brown  Pari.  Cas.  363.  App.  Div.  524,  52  N.  Y.  Supp.  420. 

221  A.  G.  Corre  Hotel  Co.  v.  Wells-  225  Cunningham  v.  Pattee,  99  Mass 
Fargo  Co.,  63  C.  C.  A.  23,  128  Fed.  248,  per  Foster,  J.  As  to  the  effect 
587.  of  a  provision  in  a  sub!en,se  to  the 

222  Brereton  v.  Tuohey,  8  Ir.  C.  L.  effect  that  any  rights  or  privileges 
190;  Postlethwaite  v.  Lewthwaite,  2  in  regard  to  renewal  granted  by  the 
Johns.  &  H.  237;  Miller  v.  Trafford  original  lessor  to  the  sublessor 
[1901]  1  Ch.  54.  should    enure   to   the  benefit  of  the 

223  Simpson  v.  Clayton,  4  Bing.  N.  sublessee,  as  entitling  the  sublessee 
^-  '^^^-  to  a  renewal,  see  Robinson  v.  Beard, 

224Revell  V.  Hussey,  2  Ball.  &  B.  140  N.  Y.  107,  35  N.  E.  441.     As  to 

280;   Evans  v.  Walshe,  2  Schoales  &  the  effect  of  a  provision   for  a  pro 

L.  519;    Thomas  v.  Burne,  1  Dru.  &  rata  increase  of  rent  to  be  paid  by 

Walsh   657;    Hackett   v.   McNamara,  the   subtenant   in    case   an    increase 


1552  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.         §  233 

that,  where  a  sublessee  for  a  year,  under  one  having  a  lease  for 
a  year,  was  given  the  right  of  renewal  for  four  years,  provided 
his  lessor  obtained  an  "extension"  of  his  own  lease,  the  sub- 
lessee was  entitled  to  a  renewal  when  his  lessor  obtained  a  new 
lease  for  ten  years.226 

§  233.    Breach  of  covenant  to  rsnew — Remedies. 

In  ease  of  a  breach  by  the  landlord  of  the  covenant  to  renew, 
the  lessor  may  recover  damages  therefor.227  The  amount  of  re- 
covery has  been  stated  to  be  the  difference  between  the  rental 
value  of  the  premises  and  the  rent  which  would  have  been  paid 
under  the  renewal,22s  and  he  may  also,  it  seems,  recover  the 
value  of  improvements  made  by  him.229  Generally  speaking,  it 
seems,  the  measure  of  damages  for  breach  of  a  contract  to  make 
a  renewal  lease  would  be  the  same  as  that  for  breach  of  a  con- 
tract to  make  an  original  lease.^^o  If  the  lessee  retains  posses- 
sion during  the  whole  term  for  which  renewal  was  to  be  made, 
he  cannot,  it  has  been  decided,  recover  for  the  landlord's  refusal 
to  execute  a  renewal  lease.^^i 

has  to  be  paid  by  the  sublessor,  see  44  Mo.  25,  100  Am.  Dec.  252;   Tracy 

Hennessy  v.   Kenney,   20    Misc.    405,  v.    Albany    Exch.    Co.,    7    N.    Y.    (3 

46  N.  Y.  Supp.  249.  Seld.)   472,  57  Am.  Dec.  538. 

226Hansauer  v.  Dahlman,  18  App.  22s  walcott   v.    McNew    (Tex.    Civ. 

Div.  475,  45   N.  Y.   Supp.  1088;    Id.,  App.)  62  S.  W.  815;  Belding  Bros.  & 

163  N.  Y.   567,  57  N.  E.  1111.     The  Co.  v.  Blum,  88    N.    Y.    Supp.    178; 

opinion  assumes  that  a  "renewal"  is  Neiderstein    v.    C^sick,    110    N.    Y. 

strictly  another  lease  for  the  same  Supp.    287.     And    see    McClowry    v. 

term,  while  a   lease   for  a  different  Croghan's  Adm'r,  31  Pa.  22. 

term   is   not   a   "renewal"    but   is    a  229  Garnhart  v.  Finney,  40  Mo.  449, 

"new"    lease.       Such    a    distinction  93  Am.  Dec.  303.     But  Van  Brocklin 

iiiab,  however,  apparently,  no  founda-  v.  Town  of  Brantford,   20   U.   C.   Q. 

tion  in  principle  or  authority.     A  re-  B.  347,  is  apparently  contra. 

newal  lease  is  a  new  lease,  by  which  2^0  See  ante,   §   67  a. 

the  tenancy  is  renewed,  and  the  fact  231  Hegan    Mantel    Co.    v.    Cook's 

that  the  lease  is  for  the  same  term  Adm'r,  22  Ky.  Law  Rep.   427,  57  S. 

as  the  former  lease,  or  for  a  differ-  W.     929.     The     decision,     however, 

ent  one,  does  not  change  its  charac-  seems    to    be    partly    based    on    the 

ter  as  being  both   a   renewal   lease  theory  that  the  lessee  had  a  perfect 

and  a  new  lea^^e.  right  to  possession  without  the  exe- 

227  McCllntock  v.  Joyner,  77  Miss,  cution  of  a  new  lease,  in  effect  that 

678,  27  So.  837,  78  Am.  SL  Rep.  541:  the  covenant  operated  as  a  provision 

Garnhart  v.  Finney,  40  Mo.  449,  93  for  extension. 
Am.  Dec.  803;    Arnot  v.  Alexander, 


§  233  REMEDIES  FOR  BREACH.  ;[553 

Tliere  is  a  decision  that  where  the  lessor  agreed  that  the  les- 
see should  "have  the  farm  from  year  to  year  as  long  as  the  farm 
is  to  be  let,"  a  dispossession  of  the  lessee  at  the  end  of  the  year, 
for  the  purpose  of  leasing  to  another,  authorized  a  recovery  of 
damages  in  covenant  as  for  breach  of  such  agreement."^^  jj,^. 
gar  ding  this,  however,  as  a  stipulation  for  an  extension,  which  it 
appears  to  have  been,  it  would  seem  that  such  a  dispossession 
of  the  tenant,  entitled  to  continue  in  possession,  should  be  re- 
garded as  an  eviction,  and  should,  therefore,  be  ground  for  re- 
covery only  in  an  action  of  tort  for  the  eviction,  or  in  action  on 
the  covenant  for  quiet  enjoyment.  The  lessee  has,  in  such  case, 
a  vested  leasehold  interest  for  the  period  of  the  extension  as  well 
as  for  the  original  term,  and  the  provision  for  extension  does 
not,  like  a  covenant  for  renewal,  give  the  lessee  a  right  in  person- 
am against  the  lessor. "^3 

In  Kngland,  and  also  in  a  number  of  states  in  this  country, 
it  is  customary  for  courts  of  equity  specifically  to  enforce  a  cov- 
enant to  renew  the  lease.234  In  case,  however,  a  covenant  so 
phrased  is  to  be  treated  as  merely  equivalent  to  an  option  in  the 
lessee  for  an  extension,235  smae  the  lessee's  title  for  the  extended 
term  is  complete  even  at  law  without  further  act  on  the  lessor's 
part,  it  does  not  seem  that  there  is  any  ground  for  specific  per- 
formance. In  some  cases  equity  may  issue  an  injunction  to  re- 
strain proceedings  at  law  brought  by  the  lessor  in  defiance  of 
the  equitable  right  of  the  lessee  to  a  renewal.^se 

Not  infrequently,  as  heretofore  indicated,-37,238  equity  will  give 
relief  under  circumstances  precluding  the  assertion  of  the  right 
of  renewal  at  law,  as  when  the  lessee  fails  to  promptly  demand 

282  Walley    v.    Radcliff,    11    Wend.  Scribner,  98  Wis.  104,  73  N.  W.  776. 

(N.  Y.)  22,  25  Am.  Dec.  594.  Every  person  who  has  or  claims  an 

233  See  ante,  §  216.  interest    in    the    reversion    may    be 

234  See  Tscheider  v.  Biddle,  4  Dill,  compelled  to  join  in  the  renewal. 
58,  Fed.  Cas.  No.  14,210:  Monihon  Bratt  v.  Woolstoon,  74  Md.  609,  7 
V.  Wakelin,  6  Ariz.  225,  56  Pac.  735;  Atl.  563. 

Worthington    v.    Lee,    61    Md.    530;  235  See  ante,  note  4. 

Ryder    v.    Robinson,    109    Mass.    67;  236  Tscheider  v.  Biddle,  4  Dill.  58, 

Arnot  V.  Alexander,  44  Mo.  25,   100  Fed.    Cas.    No.    14,210;     Graham    v. 

Am.    Dee.    252;    Johnson   v.   Conger,  James,  30  N.  Y.  Super.  Ct.   (7  Rob.) 

14  Abb.  Pr.   (N.  Y.)   195;  New  York  468. 

Life  Ins.  Co.  v.  St.  George's  Church,  237,  238  See   ante,  at  notes  112-121. 

12  Abb.  N.  C.  (N.  Y.)  50;  Kollock  v. 

L.  and  Ten.  98. 


1554  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.         §  233 

renewal,  owing  to  accident  or  excusable  negligence,  the  standard 
for  determining  such  negligejice  differing,  apparently,  in  differ- 
ent jurisdictions.  But  equity  will  refuse  specific  performance  if 
the  delay  in  demanding  a  renewal  is  not  of  an  excusable  charac- 
ter, 239  or,  usually  at  least,  if  the  right  to  renew  is  contingent 
on  the  performance  of  covenants  by  the  lessee,  and  he  is  guilty 
of  a  breach  of  such  covenants.-'^*^  And  it  has  been  regarded  as 
ground  for  refusing  specific  performance  of  the  covenant  for  re- 
newal that  the  tenant  applying  therefor  is  insolvent,-^^  the  same 
doctrine  applying  in  such  case  as  in  the  case  of  an  application  for 
specific  performance  of  any  contract  to  make  a  lease.^^s  And  so 
equity  has  refused  relief  when  the  covenant  was  inequitable,2'i3 
and  when  the  lessee  had  been  guilty  of  fraud  in  connection  there- 
with.244  Specific  performance  has  likewise  been  refused  when 
the  rights  of  the  landlord  in  the  land  had  been  denied  and  con- 
tested by  litigation  on  the  part  of  the  tenant,  who  had  refused 
to  pay  rent  for  twelve  years.^^^  But  in  the  same  jurisdiction  it 
was  decided  that  the  fact  that  the  leasehold  had  been  conveyed 
as  if  a  fee,  with  a  recital  that  the  rent  reserved  had  "become 
lapsed  and  barred  by  limitations,"  was  not  a  defense  to  an  ap- 
plication for  specific  performance.^^*^  That  the  lessee  took  the 
lease  in  his  own  name  as  agent  for  another  has  been  held  to  be  no 
defense  to  a  suit  for  specific  performance  of  the  covenant  to  re- 
new, he  having  been  guilty  of  no  fraud  or  misrepresentation  in 
this  regard,  and  the  lessor  having  no  personal  objection  to  the 
principal,  and  knowing  what  sort  of  business  was  to  be  conducted 
on  the  premises.2'^'^ 

The  question  whether  specific  performance  of  a  covenant  to 
renew  will  be  enforced  when  the  rent  is  to  be  ascertained  by  ap- 
praisers or  arbitrators  has  been  before  referred  to.^^s 

239  See  ante,  at  note  113.  243  Redshaw   v.    Bedford    Level,   1 

Eden,  346. 


240  See   ante,    §    225. 

241  Price  V.  Assheton,  1  Younge  & 


44  Pendred    v.    Griffith,    1    Brown 
Pari.  Cas.  314. 


C.    Exch.   441;    Crosbie  v.   Tooke,    1  ^^^^^^^^^^  v.'silljacks,  58  Md.  319, 

Mylne   &  K.   431.     See  Buckland  v.  ^^  ^m.  Rep.  332. 

Hall,  8  Ves.  Jr.  92.  240  Worthington  v.  Lee,  61  Md.  530. 

242  See  ante,  §  67  b,  at  notes  142,  047  Daniels  v.    Str?iY/,  53   Fed.  327. 

143,  24S  See  ante,  at  notes  176-189. 


.  934  TRUSTS  ARISING  FROM  RENEWAL.  1555 

§  234.     Trusts  arising  from  renewal. 

It  is  a  well  established  rule  in  the  courts  of  equity  that,  if  a 
trustee  or  other  person  in  a  fiduciary  position  obtains  the  re- 
newal of  a  lease  in  his  own  name,  he  will,  even  though  free 
from  fraud,  hold  it  in  trust  for  the  persons  interested  m  the 
original  term,^^^  this  being  an  application  of  the  general  rule 
that  if  a  person  in  a  fiduciary  or  quasi  fiduciary  position  gams 
some  personal  advantage  by  availing  himself  of  such  position 
the  advantage  so  gained  must  be  held  by  him  for  the  benefit  of 
his  cestui  que  trust ?^^ 

The  applicability  of  the  rule  is  not  affected,  it  has  been  held 
by  the  fact  that  the  lease  had  not  customarily  been  renewed, 
or  that  the  new  lease  was  for  lives  instead  of  for  a  term    as  was 
the  former  lease,"^^^  or  was  for  a  different  term  or  at  a  different 
rent  253   or  comprised  land  not  included  in  the  former  lease  ^ 
But'if  the  renewal  includes  other  land  as  well  as  that  included 
in  the  old  lease,  the  trust  will  not  attach  to  such  other  land 

It  has  been  held  that  the  rule  is  applicable  even  though  the 
landlord  had  refused  to  make  a  renewal  lease  directly  to  the 
cestui  que  trust?^^  And  so  the  fact  that  the  cotrustees  had  re- 
fused to  concur  in  a  renewal  for  the  cestui  que  trusts  benefit 
has  been  regarded  as  immaterial.^^^  It  has  been  held,  however, 
in  one  jurisdiction,  that  no  such  relief  would  be  given  m  favor 
of  a  corporation  lessee  as  against  one  of  its  directors  who  had 
obtained  a  renewal  after  the  landlord  had  positively  refused  to 

249  See   Keech    v.    Sandford,    Cas.  252  Eyre  v.  Dolphin,  2  Ball    &  B. 

l.^■rv,T^    TTino-    R1  •    Dixon   V.  Dixon,  9  298. 

CrOiv    5S7     Min  V.  Hill.  3  H.   L.  -  Mulvany  .  Dillon,  1  Ball    .  B 

Cas    828-   In  re  Morgan,  18  Ch.  Div.  409:  James  v.  Dean,  11  Ves.  Jr.  383. 

93-  Phyfe  v.  Wardwell.  5    Pai5?e  (N.  15  Ves.  Jr.  236.                         ^   ^     ^ 

Y.)    268,   28  Am.  Dec.  430;   Mitchell  254  Qiddings  v.   Giddmgs,   3   Russ. 

T    Reed'  61  N    Y.  123,  19  Am.  Rep.  241. 

252;    Grnmley  v.  Webb,  44  Mo.  446,  255  Qiddings  v.   biddings    3  Russ. 

100  Am.  Dec.  304.  241 ;  Acheson  v.  Fair,      Dru.  &  War. 

250  See  Lewin,  Trusts    (10th  Ed.)  512;  O'Brien  v.  Egan,  5  L.  R.  Ir  633. 

192-     2    White    &    Tudor's    Leading  250  Keech  v.   Sandford,  Cas.  temp. 

Cases   in   Eqmty    (7th   Ed.)    p.    694,  King,   61;    Ex    parte   James,    8   Ves. 

not":  to  Ke2ch  V.  Sandford.  Jr.    337.    345;    Featherstonhaugh    r. 

25iKittick    V.    Flexney,    4    Brown  Fenv-ick,  17  Ves.  Jr.  ^9S. 

Ch.  161;    Featherstonhaugh  v.  Fen-  cr.T  Biewett    v.    Millett.    7    Brown 

wick,   17   Ve=;.    Jr.    298;    Mulvany  v.  Pari.  Cas.  367. 

Dillon,  1  Ball  &  B.  409. 


1556  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.         §  234 

make  ajiother  lease  to  the  corporation,  the  renewal  lease  ex- 
pressly prohibiting  any  assignment  by  the  person  to  whom  it  was 
made. 258  And  elsewhere,  the  fact  that  the  landlord  had  refused 
to  renew  to  the  former  lessees  has  been  considered  in  determining 
whether  one  having  a  mere  partial  interest  in  the  old  lease  acted 
in  good  faith  in  taking  a  renewal  to  himself. -^^ 

The  rule  has  been  applied  as  against  an  executor,26o  an  ad- 
ministrator,26i  and  even  an  executor  de  son  tort,-^^  and  he  will 
be  required  to  hold  the  leasehold  in  trust  for  the  estate  of  the 
decedent.  So  a  guardian,  taking  a  renewal  in  his  own  name  of 
a  lease  belonging  to  his  ward,  will  hold  the  renewal  lease  in  trust 
for  the  latter.263  And  a  person  acting  as  agent  for  one  interested 
in  a  lease  cannot  procure  a  renewal  for  his  own  benefit.^^^ 

In  the  case  of  a  lease  to  the  members  of  a  partnership  firm,  one 
member  of  the  firm  cannot  ordinarily  ^65  obtain  a  renewal  for 
himself,  but  will  hold  the  renewal  lease  in  trust  for  the  others,^^^ 
and  the  fact  that  the  lessor  has  refused  to  renew  to  the  members 
of  the  firm  has  been  regarded  as  immaterial,^^^  as  has  the  fact 
that  the  renewal  lease  to  the  one  partner  provides  expressly  that 
it  shall  not  be  assigned.^^s  The  partner  taking  the  renewal  can- 
not exclude  the  operation  of  the  rule  by  notifying  the  other  per- 
sons interested  of  his  intention  to  do  so,^*^^  though  occasionally 

25S  Crittenden     &     Cowles    Co.     v.  26o  Alder   v.    Fouracre,    3    Swanst. 

Cowles,    66    App.   Div.    95,   72   N.   Y.  489;    Featherstonhan.gh   v.   Fenwick, 

Supp.  701.     See  post,  at  note  279.  17  Ves.  Jr.  298;    Clegg  v.  Fishwick, 

259  In  re  Biss   [1903]  2  Ch.  40.  1  Macn.  &  G.  294;   Sneed  v.  Deal,  53 

260  Holt  V.  Holt,  1  Ch.  Cas.  190;  Ark.  152,  13  S.  W.  703,  7  L.  R.  A. 
Killick  V.  Flexney,  4  Brown  Ch.  160;  551;  Mitchell  v.  Reed,  61  N.  Y.  123, 
Lewin,  Trusts  (10th  Ed.)  p.  192.  19     Am.     Rep.     252;      Struthers     v. 

261  Kelly  V.  Kelly,  8  Ir.  Eq.  403.        Pearce,    51    N.   Y.    357;    Cushing   v. 
2G2  Mulvany  v.  Dillon,  1  Ball  &  B.    Danforth,  76  Me.  114;  Johnson's  Ap- 

409;    Griffin  v.  Griffin,  1   Schoales  &  peal,  115   Pa.   129,  8  Atl.   36,  2  Am. 

L.   352.  St.  Rep.  539. 

263  Mulhallen  v.  Marum,  3  Dm.  &  se?  Featherstonhaugh  v.  Fenwick, 
War.  317;  Milner  v.  Harewood,  18  17  Ves.  Jr.  298;  Lacy  v.  Hall.  37  Pa. 
Ves.  Jr.  259,  274.  360,  78  Am.  Dec.  429. 

264  Griffin  v.  Griffin,  1  Schoales  &  ^Rs  Mitchell  v.  Reed,  61  N.  Y.  123, 
L.  352;  Davis  v.  Hamlin,  108  111.  39,  19  Am.  Rep.  252. 

48  Am.  Rep.  541.  203  Clegg  v.  Edmonson,  8  De  Gex, 

265  See  Clegg  v.  Edmondson,  8  M.  &  G.  787;  Fitzgibbon  v.  Scanlan, 
De    Gex,    M.    &   G.    787;    In  re   Biss    1   Dow,   269. 

[1903]   2  Ch.  40,  62. 


e  934  TRUSTS  ARISING  FROM  RENEWAL.  1557 

emphasis  is  placed  on  the  fact  that  the  renewal  is  obtained  se- 
cretly 2-0     The  same  rule  has  been  applied  as  against  a  swvmng 
partner  taking  a  renewal,  and  he  will  hold  this  for  the_  benefit  ot 
the  partnership  estate.^^i     it  has  been  said,  however,  m  this  re- 
gard that  the  rule  "has  been  to  some  extent  departed  from  where 
the  trade  is  one  of  a  speculative  character,  and  requiring  great 
outlay  with  uncertain  returns.     There,  if  the  surviving  partner 
renews  the  lease  in  his  own  sole  name,  and  carries  on  the  business 
with  his  own  capital  and  in  his  own  name,  the  court  will  not  m 
general  assist  the  representative  of  the  deceased  partner  unlesa 
he  comes  forward  promptly,  and  is  ready  to  contribute  a  due 
proportion  of  money  for  the  purpose  of  the  business.     It  would 
be  unjust  to  permit  the  executor  of  the  deceased  partner  to  lie 
by  and  remain  passive  while  the  survivor  is  incurring  all  the 
risk  of  loss,  and  only  to  claim  to  participate  after  the  affairs 
have  turned  out  to  be  prosperous.  "^^^     The  rule  has  been  held  to 
apply  against  a  partner  in  a  tirm  which  has  been  dissolved  other- 
wise than  by  the  death  of  a  member.2T3     The  application  of  the 
rule  is  not  excluded  by  the  fact  that  the  renewal  lease  obtained 
by  the  partner  is  not  to  commence  until  after  the  termination  of 
the  partnership  by  the  terms  of  the  firm  articles.274 

One  who  has  but  a  partial  interest,  measured  by  duration,  as,  for 
instance,  one  to  whom  the  leasehold  has  been  bequeathed  or  as- 
signed for  life  with  remainder  over,  cannot,  it  has  been  held, 
procure  a  renewal  exclusively  for  his  own  benefit,  but  will  be  re- 
garded as  a  trustee  for  those  entitled  in  remainder.275 

If  a  mortgagee  of  the  leasehold  obtains  a  renewal  of  the  lease, 
he  will,  it  has  been  decided,  hold  it  for  the  mortgagor's  benefit,^'^" 

270  See  Mitchell  V.  Reed,  61  N.  Y.  96  N.  Y.  651;  Johnson's  Appeal,  115 
123  19  Am.  Rep.  252;  Chittenden  v.  Pa.  129,  8  Atl.  36,  2  Am.  St.  Rep.  539; 
Witbeck,  50  Mich.  401,  15  N.  W.  526;  Clegg  v.  Edmondson,  8  De  Gex,  M. 
Featherstonhaiigh     v.    Fenwick,     17  &  G.  787. 

Ves.   Jr.    298,    311.  271  Mitchell  v.  Reed,  61  N.  Y.  123, 

271  Clegg  V.  Fishwick,   1   Macn.   &    19  Am.  Rep.  252. 

Q    294    *  "^  James  v.  Dean,  11  Ves.  Jr.  383, 

"272  Clements  v.  Hall,  2  De  Gex  &  15  Ves.  Jr.  236;  Rawe  v.  Chichester, 
J  173  186  per  Cran worth.  L.  C.  Amb.  715,  1  Brown  Ch.  198  n;  Lewin. 
See  Chittenden  v.  Witbeck,  50  Mich.  Trusts  (11th  Ed.)  197;  2  White  & 
401,  15  N.  W.  526.  Tudor's  Leadins:  Cas.  in  Eq.  p.  705, 

273  Sneiss    V.    Rosswogg,    48   N.   Y.    notes  to  Keerh  v.  Sandford. 
Super.  Ct.   (16  Jones  &  S.)  135,  afd.       276  Rushworth's   Case.  Freem.   Ch. 


1558  STIPULATIONS  FOR  RENEWAL  OR  EXTENSION.         §  234 

though  a  different  view  has  been  taken  when  the  renewal  was 
procured  by  a  mortgagee  who  was  not  in  possession,  without  any 
fraud  on  his  part,  and  after  notice  to  the  mortgagor,  the  re- 
newal not  being  regarded,  under  such  circumstances,  as  pro- 
cured by  him  by  reason  of  his  position  as  mortgagee. ^'^''^ 

If  the  mortgagor  of  a  leasehold  interest  acquires  a  renewal  of 
the  lease,  the  new  lease  will,  it  has  been  held,  be  subject  to  the 
mortgage. ^■'■s 

A  director  of  a  corporation,  procuring  for  himself  the  renewal 
of  a  lease  held  by  the  corporation,  is,  it  has  been  held,  subject 
to  the  rule  above  referred  to.^'^^ 

It  has  been  recently  decided  in  England,  after  a  full  considera- 
tion of  the  matter,  that  the  mere  circumstance  that  a  person 
is  partially  interested  in  an  old  lease  does  not  preclude  him  from 
obtaining  a  new  lease  of  the  same  premises  for  his  own  benefit, 
the  landlord  having  refused  to  renew  to  the  old  lessees.^so 

A  sublessee  does  not  stand  in  a  fiduciary  relation  as  regards 
the  sublessor,  and  he  may  obtain  a  renewal  in  his  own  name  from 
the  principal  lessor,  without  reference  to  any  claims  upon  the 
part  of  the  sublessor.^si 

The  lessee  is,  it  has  been  held,  under  no  fiduciary  relation  as 
regards  his  assignee,  so  as  to  be  compelled  to  hold  a  renewal  lease 
procured  by  him  in  trust  for  the  latter,  merely  because  he  rep- 
resented to  him,  while  negotiating  for  the  sale  and  assignment  of 
the  leasehold,  that  it  was  customary  for  the  landlord  to  renew 

13;  Rakestraw  v.  Brewer,  2  P.  Wms.  See  Jacksonville  Cigar  Co.  v.  Dozier, 

510;    Fosbrooke  v.  Balguy,  1  Mylne  53  Fla.  1059,  43  So.  523. 
&   K.    226;    Holridge   v.    Gillespie,   2        28o  in    re    Biss    [1903]    2    Ch.    40, 

Johns.  Ch.   (N.  Y.)   30;   Slee  v.  Man-  distinguishing    Palmer  v.    Young,    1 

hattan  Co.,  1  Paige  (N.  Y.)   48.  Vera.    276,    Ex   parte    Grace,   1   Bos. 

277Nesbitt   V.    Tredennick,   1    Ball  &  P.   376. 
&  B.  29.  281  Maunsell   v.    O'Brien,   1   Jones, 

278  Seabourne  v.  Powel,  2  Vera.  11;  176.  See  John  Polhemus  Print.  Co. 
Leigh  v.  Burnett,  29  Ch.  Div.  231;  v.  Wynkoop,  30  App.  Div.  524,  52  N. 
Wunderlich  v.  Reis,  31  Hun  (N.  Y.)  Y.  Supp.  420.  A  covenant  by  a  sub- 
1;  Hausauer  v.  Dahlman,  18  App.  lessee  with  his  lessor  not  to  nego- 
Dlv.  475,  45  N.  Y.  Supp.  1088;  Id.,  tiate  with  any  other  person  for  a 
163  N.  Y.  567,  57  N.  E.  1111.  renewal  before  a   certain   time  was 

279  Robinson  v.  Jewett,  116  N.  T.  held  not  to  be  broken  by  a  promise 
40,  22  N.  E.  224;  McCourt  v.  Singers-  to  negotiate  at  a  future  time.  Smith 
Bigger     (C.    C.    A.)     145    Fed.    103.  v.  Coe,  55  N.  Y.  678. 


§  234  TRUSTS  ARISING  FROM  RENEWAL.  I559 

such  leases,282  though  a  differe.nt  view  was  taken  when  the  as- 
signor expressly  contracted  with  his  assignee  that  he  would  give 
him  all  the  advantages  of  being  the  tenant  of  the  lessor  as  re- 
gards a  renewal.283  A  purchaser  of  the  leasehold  interest  owes 
no  obligation  in  this  respect  to  his  vendor,  and  cannot  be  com- 
pelled to  transfer  a  renewal  lease  procured  by  him  to  the  lattcH 
as  security  for  the  price  to  be  paid  by  him  for  the  assignment.^^^ 
But  where  a  lessee  contracted  to  sell  his  interest  in  the  premises 
for  the  purpose  of  enabling  the  vendee  to  obtain  a  renewal,  with- 
out prejudice  to  the  rights  of  an  existing  sublessee,  and  the 
vendee  in  consequence  obtained  a  new  lease  in  his  own  name, 
such  new  lease,  it  was  held,  was  to  be  considered  as  merely  a  re- 
newal of  the  old  lease,  and  the  original  lessee  was  entitled  to 
specific  performance  of  the  vendee's  contract  to  pay  the  pur- 
chase money,  and  to  indemnity  against  the  sublessee's  claim  for 
damages  for  eviction  by  the  vendee.^s^ 

282  McDonald  v.  Fiss,  54  App.  Div.  sign   any  renewal,   the  lessee  could 
489,  67  N.  Y.  Supp.  34.  not  avoid   the  effect  of  such   agree- 

283  Bennett  v.  Vansyckel,  11  N.  Y.  ment  by  having  the  renewal  taken 
Super.  Ct.   (4  Duer)    462.  in  the  name  of  his  wife. 

In  H.  Koehler  &  Co.  v.  Kennedy,  284Hibbard    v.    Ramsdell,    118    N. 

65  App.  Div.  611,  72  N.  Y.  Supp.  595,  Y.  38,  22  N.  E.  1123,  16  Am.  St.  Rep. 

it  was  decided  that  where  the   les-  740. 

see  assigned  the  leasehold  as  secur-  285  Phyfe  v.  Wardell,  5  Paige   (N. 

ity,   with  an  agreement  also  to  as-  Y.)  268,  28  Am,  Dec.  480. 


CHAPTER  XXIII. 

FIXTURES. 

§  235.  General  considerations. 

236.  Physical  attachment. 

237.  Character  of  article. 

238.  Intention  of  the  annexor. 

239.  Specific  articles  as  fixtures. 

240.  Removable  fixtures. 

a.  Trade  fixtures. 

b.  Domestic  and  ornamental  fixtures. 

c.  Agricultural  fixtures. 

241.  Removable  fixtures  as  realty  or  personalty. 

242.  Loss  of  tenant's  rights  of  removal. 

a.  End  of  term  or  relinquishment  of  possession. 

b.  Tenancy  of  uncertain  duration. 

c.  Surrender  or  merger  of  leasehold. 

d.  Forfeiture  of  leasehold. 

e.  Eviction  under  title  paramount. 

f.  Delay  in  removal  caused  or  acquiesced  in  by  landlord. 

g.  Acceptance  of  new  lease  by  tenant. 

243.  Stipulations  granting  rights  of  removal. 

a.  General  considerations. 

b.  Articles  annexed  with  landlord's  assent. 

c.  Effect  as  rendering  articles  personalty. 

d.  Validity  in  favor  of  and  as  against  third  persons. 

e.  Loss  of  benefit  of  stipulation — Time  for  removal. 

244.  Stipulations  restricting  rights  of  removal. 

a.  General  considerations. 

b.  Stipulations  as  to  "fixtures." 

c.  Stipulations    as   to   "improvements." 

d.  "Erections"  and  "additions." 

e.  "Alterations." 

f.  Stipulated  improvements  by  tenant. 

g.  Title  to  articles  during  term. 

245.  Custom  affecting  rights  of  removal. 


§  235  GENERAL    CONSIDERATIONS.  1561 

§  246.    Rights  of  removal  as  against  person  other  than  lessor. 

a.  Purchaser  subsequent  to  annexation. 

b.  Person  claiming  under  mortgage  subsequent  to  annexation. 

c.  Poxson  claiming  under  mortgage  prior  to  annexation. 

247.  Rights  of  removal  by  person  other  than  lessee. 

248.  Remedies. 

§  235.     General  considerations. 

The  questions  to  be  considered  in  connection  with  the  law  of 
fixtures,  as  between  landlord  and  tenant,  involve  almost  ex- 
clusively the  right  of  the  tenant  to  remove  from  the  premises 
articles  or  erections  placed  by  him  thereon. 

The  first  question  which  arises  in  any  particular  case  is  whether 
the  article  or  erection  in  question  is  of  such  a  character,  or  has 
l)een  annexed  to  the  land  in  such  manner,  or  under  such  circum- 
stances, that  it  is  to  be  regarded  as  part  of  the  land.  If  there  is 
nothing  to  show  that  the  article  or  erection  has  become  part  of 
the  land,  it  remains  a  chattel,  which  the  tenant  obviously  has  the 
right  to  remove.  If  the  article  or  erection  has  become  part  of  the 
land,  the  question  then  arises  whether  the  tenant  may  neverthe- 
less remove  it  as  being  Avithin  an  exceptional  right  of  removal 
given  to  a  tenant  for  a  limited  period.  There  are,  it  is  true,  deci- 
sions by  most  respectable  courts  which  tend  to  blend  these  ques- 
tions, which,  in  other  words,  regard  the  assertion  of  a  right  of  re- 
moval in  the  tenant  as  necessarily  equivalent  to  8.n  assertion  that 
the  article  retains  its  chattel  character,^  but  we  will,  for  the  pres- 
ent, assume  that  the  two  questions  are  distinct,  and  will  discuss 
the  subject  accordingly.  ' 

In  determining  the  first  question,  whether  the  article  or  erec- 
tion has  become  a  part  of  the  realty,  that  is,  whether  it  is  a  "fix- 
ture," using  the  term  as  descriptive  of  an  article  which,  because 
affixed  to  the  land  or  brought  into  physical  connection  therewith, 
has  lost  its  original  chattel  character,  for  some  purposes  at  least,- 

1  See  post,  §  241.  tures,  1  et  seq.;   Bronson,  Fixtures, 

2  Such  is  the  sense  in  which  the  c.  1;  13  Am.  &  Eng.  Enc.  Law  (2d 
word  will  be  used  in  the  present  Ed.)  597.  A  "fixture"  has  also  been 
chapter.  It  has  also  been  frequently  defined  (Brown,  Fixtures,  §§  1-3) 
used  as  signifying  an  article  which,  as  a  thing  "associated  with  or  more 
though  annexed  to  the  land,  is  re-  or  less  incidental  to  the  occupation 
movable  by  the  person  who  made  of  lands  and  houses,  or  either  there- 
the     annexaiion.     See     Ewell,     Fix-  of,   and   with    regard   to   which    the 


1562  FIXTURES.  §  236 

the  considerations  which  govern  as  between  landlord  and  tenant 
are  approximately  the  same,  it  is  conceived,  as  when  no  rela- 
tion of  tenancy  exists  between  the  owner  of  the  la  ad  and  the 
person  who  made  the  annexation.  Consequently,  it  is  proper 
to  state  briefly  these  general  considerations,  with  reference  to 
which  the  courts  ordinarily  undertake  to  determine  the  ques- 
tion whether  an  erection  on  the  land,  or  article  affixed  to,  or 
placed  on,  the  land,  is  to  be  regarded  as  "a  part  of  the  realty," 
as  it  is  frequently  expressed.^ 

§  236.    Physical  attachment. 

Not  infrequently  the  courts  have  asserted  the  view  that  a  thing 
cannot  be  a  fixture  if  merely  placed  on  the  la.nd,  and  not  actually 
attached  to  the  land,  or  to  some  structure  which  is  itself  so  at- 
tached to  the  land  as,  in  a  legal  sense,  to  form  a  part  thereof.^ 
•In  other  cases,  however,  an  article  of  a  heavy  and  permanent 
character  has  been  regarded  as  constituting  a  fixture,  though 
merely  laid  upon  the  land  and  kept  in  place  by  the  force  of 
gravity.^ 

question  most  frequently  arising  is  Teaff  v.  Hewitt,  1     Ohio  St.  511,  59 

that  of  their  removability  by  the  per-  Am.    Dec.    634;    Hill   v.    Wentworth, 

son  claiming  to  remove  them,"  thus  28    Vt.    429.     See    authorities    cited 

apparently      making     the     question  in  Ewell,   Fixtures   (2d  Ed.)    18;    13 

whether  a  dispute  is  likely  to  arise  Am.  &  Eng.  Enc.  Law  (2d  Ed.)   600. 

as  to  the  right  of  removal  the  test  e  Stockwell  v.  Campbell,  39  Conn, 

of  a  -fixture.  362,    12    Am.    Rep.    393;    Blethen   v. 

3  The  subject  of  fixtures  has  re-  Towle,  40  Me.  310;  Snedeker  v.  War- 
cently  been  treated  at  length  in  ring,  12  N.  Y.  (2  Kern.)  170;  Dosch- 
Bronson,  Fixtures  (St.  Paul,  1904),  er  v.  Blackiston,  7  Or.  143;  Holland 
and  Ewell,  Fixtures  (2d  Ed.  Chica-  v.  Hodgson,  L.  R.  7  C.  P.  334;  Monti 
go,  1905).  An  article  on  the  sub-  v.  Barnes  [1901]  1  K.  B.  205.  So 
ject  by  the  present  writer  is  to  be  buildings  merely  resting  on  a  wood- 
found  in  13  Am.  &  Eng.  Enc.  Law  en  foundation  have  been  regarded 
(2d  Ed.)    593.  as    fixtures     (Landon    v.    Piatt,    34 

4  Horn  V.  Baker,  9  East,  215;  Conn.  517;  Ogden  v.  Stock,  34  HI. 
Wansbrough  v.  Maton,  4  Adol.  &  E.  522,  85  Am.  Dec.  332;  Madigan  v.  Mc- 
884;   Walker  v.  Sherman,  20  Wend.  Carthy,  108   Mass.  376,  11  Am.  Rep. 

(N.   Y.)    636;    Hoyle   v.   Plattsburgh  371),  as  have  fences  resting  on  the 

&  M.   R.  Co.,  54   N.  Y.   314,  13   Am.  surface    of  the    ground    (Giirklen   v. 

Rep.    595;    Brown   v.  Lillie,    6    Nev.  Bennett,    43    N.    H.    306;    Wentz    v. 

S44;     Williamson     v.     New     Jersey  Flncber,    34    N.    C.    (12    Ired.    Law) 

Southern  R.  Co.,  29  N.   J.  Eq.  311;  297,    55    Am.    Dec.    416;    Kimball   v. 


§  236  PHYSICAL  ATTACHMENT.  1563 

Occasionally  a  thing,  not  at  the  time  actually  annexed  to  or  in 
place  on  the  land,  has  been  regarded  as  part  of  the  land  as  con- 
stituting an  essential  part  of  or  accessory  to  a  thing  which  is 
aaanexed.  A  part  of  a  machine,  temporarily  removed,  either  for 
the  purpose  of  repairs  or  safe  keeping,  or  in  order  to  facilitate 
a  particular  use  of  the  machine,  has  been  considered  to  come  with- 
in this  principle,^  though  it  may  perhaps,  in  most  cases,  be  aa 
well  regarded  as  having  become  part  of  the  realty  by  reason  of 
actual  annexation,  and  as  not  having  ceased  to  be  so  because  tem- 
porarily severed^  Keys,  doors,  and  windows,  have  been  regarded 
as  part  of  the  realty  on  the  same  theory, ^'i'^  though  they  also 
might  ordinarily  be  regarded  as  actually  annexed. 

In  some  cases  the  courts  have  considered  the  mode  of  physical 
attachment  as  decisive  that  the  article  attached  is  a  part  of  the 
land,ii  but  the  tendency  is  to  consider  this  as  in  itself  but  a 
slight  indication  that  the  article  is  a  fixture,  provided  it  is  sus- 
ceptible of  removal  without  injury  to  the  land,  or  to  the  struc- 
ture constituting  a  part  of  the  land  to  which  it  is  attached.^^ 

Adams,  52  Wis.  554,  9  N.  W.  170,  38  7  See   13   Am.   &   Eng.    Enc.   Law, 

Am.  Rep.  756).     See  13  Am.  &  Eng.  615;    Ewell,   Fixtures,    62;    Bronson, 

Enc.  Law,  603.     In  Pennsylvania  the  Fixtures,  §§  18  c   (5),  24. 

requirement    of    actual    physical    at-  s-io  Liford's   Case,  11   Coke,   50  b; 

tachment  has  been  positively  repud-  State  v.   Elliot,   11   N.   H.    540;    Hill 

iated.     Voorhis  v.  Freeman,  2  Watts  v.  Wentworth,  28  Vt.  436. 

&   S.    (Pa.)    116,   37    Am.    Dec.    490;  n  Wiltshear    v.    Cottrell,    1    El.    & 

Christian  v.  Dripps,  28  Pa.  271,  278;  Bl.  674;    Bliss  v.  Whitney,  91  Mass. 

Seeger  v.  Pettit,  77  Pa.  437,  18  Am.  (9    Allen)     114,    85    Am.    Dec.    745; 

Rep.   452;    Wick  v.  Bredin,   189   Pa.  Degraffenreid   v.    Scruggs,    23   Tenn. 

83,  42  Atl.  17;  Hill  v.  Sewald,  53  Pa.  (4  Humph.)    451,  40  Am.   Dec.  658; 

271,  91  Am.  Dec.  209.  Clark  v.    Hill,   117   N.   C.    11,   23    S. 

6  Ex    parte    Ashbnry.    4    Ch.    App.  E.    91,    53    Am.    St.    Rep.    514.     See 

630;     ShefBeld    &    South    Yorkshire  Amos  &  Ferard,   Fixtures    (3d  Ed.) 

Permanent   Bldg.    Soc.    v.    Harrison,  3  et  seq. 

15  Q.  B.  Div.  258;   Bain  v.  Brand,  1  12  State    Sav.    Bank   v.   Kercheval, 

App.  Cas.   762;    Fisher  v.   Dixon,  12  65   Mo.    687,   27   Am.   Rep.    310;    Mc- 

Clark  &  F.  312;  Dudley  v.  Hurst,  67  Rea  v.  Central  Nat.  Bank,  66  N.  Y. 

Md.    44,  8  Atl.   901,  1  Am.   St.  Rep.  495;    Farrar  v.    Stackpole,  6  Me.    (6 

368;   Pierce  v.  George,  108  Mass.  78,  Greenl.)  154,  19  Am.  Dec.  201;  Voor- 

11  Am.  Rep.  310;   Wadleigh  v.  Jan-  his  v.  Freeman,  2  Watts  &  S.   (Pa.) 

vrin,  41  N.  H.  503,  77  Am.  Dec.  780;  116,   37   Am.    Dec.    490;    Winslow   v. 

Hopewell     Mills     v.     Taunton     Sav.  Merchants'    Ins.    Co.,    45    Mass.     (4 

Bank,  150  Mass.  519,  23  N.  E.  327,  6  Mete.)    314,  38  Am.   Dec.  368;    Man- 

L.  R.  A.  249,  15  Am.  St.  Rep.  235.  waring  v.  Jenison,  61  Mich.  117,  27 


1564 


FIXTURES.  §  238 


The  faet,  however,  that  a  chattel  is  so  attached  to  a  structure 
that  its  removal  would  leave  an  unfinished  gap  in  the  structure 
has  been  regarded  as  strong  evidence  that  the  chattel  is  a  part 
of  the  land.^^ 

§  237.    Character  of  article. 

A  consideration  on  which  the  cases  usually  lay  great  stress,  as 
determining  the  character  of  the  article  as  a  fixture  vel  non, 
is  its  character,  as  related  to  the  uses  to  which  the  land  has  been 
appropriated,  it  being  regarded  as  a  fixture  only  in  case  there  is 
a  correspondence  between  its  character,  and  consequently  its 
prospective  use,  and  the  use  to  which  the  land  is  devoted.  This 
idea  of  correspondence  between  the  use  of  the  article  and  that 
of  the  land,  as  showing  the  annexor's  intention,  is  presented  in 
the  cases  under  various  names,  as  when  it  is  stated  that  the 
article  annexed  must  be  "adapted"  or  "appropriate"  to  the  use 
to  which  the  land  is  appropriated.  The  same  idea  is  apparently 
involved  in  the  frequent  statement  that  the  object  and  purpose 
of  the  annexation,  as  being  for  the  "improvement"  or  "better 
enjoyment"  of  the  land,  is  the  important  consideration,  this  re- 
ferring to  the  purpose  as  indicated  by  the  character  of  the  article 
and  the  use  made  of  the  land.^* 

§  238.    Intention  of  the  annexor. 

In  determining  the  question  whether  an' article  is  a  fixture,  the 
modern  decisions  usually  lay  great  emphasis  on  the  question  of 
the  "intention"  with  which  the  annexation  was  made,  and  indeed 

N.  W.  899;  Despatch  Line  v.  Bellamy  260,  note  b;  Holland  v.  Hodgson,  L. 
Mfg.  Co.,  12  N.  H.  205,  37  Am.  Dec.  R.  7  C.  P.  S2S;  State  Sav.  Bank  v. 
203;  Thorr.as  v.  Davis,  76  Mo.  72,  43  Kerch eval,  65  Mo.  686,  27  Am.  Rep. 
Am'  Rep  756.  See  13  Am.  &  Eng.  310;  Green  v.  Phillips,  26  Grat. 
Enc.  Law  (2d  Ed.)   607.  (Va.)   752,  21  Am.  Rep.  323;   Fifield 

13  Ward  v.  Kilpatrick,  85  N.  Y.  v.  Farmers'  Nat.  Bank,  148  111.  163, 
413,  39  Am.  Rep.  674;  Teaff  v.  Hew-  35  N.  E.  802,  39  Am.  St.  Rep.  166; 
itt,!  Ohio  St.  534,  59  Am.  Dec.  634;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Mor- 
Gttumwa  Woolen  Mill  Co.  v.  Hawley,  gan,  42  Kan.  23,  21  Pac.  809,  4  L. 
44  Iowa,  57,  24  Am.  Rep.  719;  Home  R.  A.  284,  16  Am.  St.  Rep.  471;  Teaff 
V.  Smith,  105  N.  C.  322,  11  S.  E.  373,  v.  Hewitt,  1  Ohio  St.  511,  59  Am. 
18  ^m   St.  Rep.  903.  E>ec.  f)34;    Rogers  v.  Prattville  Mfg. 

1*  SeeVawton  v.  Salmon,  1  H.  Bl.   Co.  No.  1,  81  Ala.  483,  1  So.  643,  60 


§  238 


INTENTION  OF  ANNEXOli.  1565 


quite  frequently  make  this  the  sole  criterion,  referring  to  the 
mode  of  annexation  and  the  character  of  the  article  merely  aa 
evidence  upon  this  question  of  intention.i^  Unfortunately,  the 
courts  are  not  entirely  clear,  nor  are  they  consistent,  in  their 
statements  as  to  the  nature  of  this  intention,  and  the  facts  from 
Avhich  it  is  to  be  inferred.  In  a  leading  case,^^  which  is  fre- 
quently quoted  and  referred  to  in  connection  with  the  law  of 
fixtures,  it  is  said  that  the  intention  is  to  be  inferred  "from  the 
nature  of  the  article  affixed,  the  relation  and  situation  of  the 
party  making  the  annexation,  the  structure  and  mode  of  annexa- 
tion, and  the  purpose  or  use  for  which  the  annexation  has  been 
made."^'''  And  so  it  is  said  in  other  cases  that  the  secret  inten- 
tion of  the  person  making  the  annexation  is  immaterial,  the  in- 
tention which  controls  being  that  inferable  from  his  acts.^^ 

A.m.  Rep.   171;    Potter  v.   Cromwell,  field  Tel.  &  T.  Co.  v.  Cyr,  95  Me.  2S7, 

40  N.  Y.  287,  100  Am.  Dec.  485;  Still-  49  Atl.  1047;  Fifield  v.  Farmers'  Nat. 

man  v.   Flenniken,  58  Iowa,  450,  10  Bank,  148  111.  163,  35  N.  E.  802,  39 

N.  W.  842,  43  Am.  Rep.  120;  McRea  Am.    St.    Rep.    1G6;    Feder    v.    Van 

V.  Central  Nat.  Bank  of    Troy,  66  N.  Winkle,  53  N.  J.  Eq.  370,  33  Atl.  399, 

y.  489;  13  Am.  &  Eng.  Enc.  Law,  609.  51   Am.    St.    Rep.    628;    Baringer  v. 

15  See  Holland  v.   Hodgson,  L.  R.  Evenson,    127    V/is.    36,    106    N.    W. 

7  C.  P.  328;   Leigh  v.  Taylor  [1902]  801. 

App.    Cas.   157,    afg.    In   re   DeFalbs  "^  Tpaff  v.  F-^iwitt,  1  Ohio  St.  511, 

[1901]   1   Ch.   523;    State  Sav.  Bank  59  Am.  Dec.  634,  per  Bartley,  C.  J. 

V.    Kercheval,    65    Mo.    683,    27    Am.  it  To  the  same  effect,  see  Capen  v. 

Rep.  310;    Ozark  v.  Adams,  73  Ark.  Peckham,  35  Conn.  88;   Thomson  v. 

227,  83  S.  W.  920;  Snedeker  v.  War-  Smith,  111  Iowa,  718,  83  N.  W.  789, 

ring,  12  N.  Y.   (2  Kern.)   170;    Teaff  50   L.    R.    A.    780,    82   Am.   St.   Rep. 

V.  Hewitt,  1  Ohio  St.  511,  59  Am.  Dec.  541;   Readfield  Tel.  &  T.  Co.  v.  Cyr, 

634;  Hopewell  Mills  v.  Tannton  Sav.  95  Me.  287,  49  Atl.  1047;   Schaper  v. 

Bank,  150  Mass.   519,  23  N.   E.  327,  Bibb,  71  Md.  145,  17  Atl.  935;  Thom- 

6  L.  R.  A.  249,  15  Am.  St.  Rep.  235;  as  v.  Davis,  76  Mo.  72,  43  Am.  Rep. 

Potter  V.  Cromwell,  40  N.  Y.  293,  100  756;    Ogden  v.  Stock,  34  111.  522,  85 

Am.  Dec.  485;  Ottumwa  Woolen  Mill  Am.  Dec.  332. 

Co.  V.  Hawley,  44  Iowa,  57,  24  Am.  is  Hopewell  Mills  v.  Taunton  Sav. 

Rep.   719;    Eaves   v.   Estes,   10  Kan.  Bank,   150   Mass.  519,  23  N.  E.   327, 

314,  15  Am.  Rep.   345;    Hntchins  v.  6  L.  R.  A.  249,  15  Am.  St.  Rep.  235; 

Masterson,  46  Tex.  551,  26  Am.  Rep.  Crum  v.  Hill,  40   Iowa,  506;    Snede- 

286;    Hill  v.   Sewald,  53  Pa.   271,  91  ker  v.  Warring,  12  N.  Y.    (2  Kern.) 

Am.   Dec.   209:   Wick  v.  Bredin,  189  170;   Cosgrove  v.  Troescher,  62  App. 

Pa.  83.  42  Atl.  17:  Langston  v.  State,  Div.   123.   70  N.  Y.   Supp.   764;    Cat- 

96  Ala.  44,  11  So.  334;   Lavenson  v.  asauqua  Bank  v.  North,  160  Pa.  303, 

Stand^Td  Soap  Co..  SO   Cal.   24!^.   21  28  Atl.  694;   Alberson  v.  Elk  Creek 
Pac.  184,  13  Am.  St.  Rep.  147;  Read- 


1566 


FIXTURES. 


238 


Most  vof  the  cases  Avhich  thus  lay  stress  upon  the  intention  of  the 
person  making  the  annexation,  as  determining  whether  the  article 
annexed  becomes  part  of  the  land,  are  cases  in  which  such  per- 
son was,  at  the  time  of  the  annexation,  the  owner  of  the  land, 
as  well  as  of  the  article  annexed.^^  In  such  a  case,  the  absence 
of  any  conflicting  interests  at  the  time  of  the  annexation  renders 
his  intention  an  appropriate  consideration  in  this  connection, 
when  the  question  subsequently  arises,  for  instance,  between  his 
heir  and  personal  representatives,  or  between  one  to  whom  he 
conveys  the  land,  absolutely  or  by  way  of  mortgage,  and  one 
claiming  the  article  as  a  chattel.  But  it  seems  that  if,  at  the 
time  of  the  annexation,  the  person  annexing  has  no  right  in  the 
land,  his  intention,  however  clearly  expressed  by  word  or  act, 
that  the  article  shall  not  become  a  part  of  the  land,  should  have 
no  effect  in  divesting  the  rightful  owner  of  the  land  of  the  right 
to  the  chattel  which  he  otherwise  would  have.^o     And  the  cases 


Min.  Co.,  39  Or.  552,  65  Pac.  978; 
Washington  Nat.  Bank  v.  Smith,  15 
Wash.  169,  45  Pac.  736. 

18  See,  e.  g.,  Roseville  Alta  Min. 
Co.  V.  Iowa  Gulch  Min.  Co.,  15  Colo. 
29,  24  Pac.  920,  22  Am.  St.  Rep.  373; 
Seedhouse  v.  Broward,  34  Fla.  509, 
16  So.  425;  Thomson  v.  Smith,  111 
Iowa,  718,  83  N.  W.  789,  50  L.  R.  A. 
780,  82  Am.  St.  Rep.  541;  Potter  v. 
Cromwell,  40  N.  Y.  287,  100  Am.  Dec. 
485;  McRea  v.  Central  Nat.  Bank,  66 
N.  Y.  489;  Erdman  v.  Moore,  58  N. 
J.  Law.  445,  33  Atl.  958;  Knicker- 
bocker Trust  Co.  V.  Penn  Cordage 
Co.,  66  N.  J.  Eq.  305,  58  Atl.  409; 
McFarl?,ne  v.  Foley,  27  Ind.  App. 
484,  60  N.  E.  357;  Kendall  v.  Hatha- 
way, 67  Vt.  122,  30  Atl.  859. 

20  That  the  intention  of  the  an- 
nexor  is  in  such  case  immaterial, 
see  Tread-^'ay  v.  Sharon,  7  Nev.  37; 
Miles  V.  M'^Naughton,  111  Mich.  350, 
69  N.  W.  4'^l:  Henderson  v.  Ownby, 
56  Tex.  647,  42  Am.  Rep.  691  (sem- 
ble).  'In  Huohschmann  y.  McHenry, 
29  Wis.  65.'^.  H  i=!  said,  per  Dixon,  C. 
J.;    "It  would  be  strange  if  it  were 


to  be  held  that  the  mere  trespasser 
entering  without  any  title  and  erect- 
ing buildings  or  other  improvements, 
having  in  all  other  respects  the 
character  of  fixtures,  could  show 
that  they  were  not  by  showing  that 
his  intention  was  at  some  future 
day  to  remove  them.  This  would  be 
a  new  way  of  defeating  the  rights  of 
the  owner  of  the  soil  to  fixtures  and 
improvements  thus  annexed,  and 
which,  by  the  common  law  as  it  now 
exists  and  always  has,  confessedly 
belong  to  him."  But  in  Curtis  v. 
Leasia,  78  Mich.  480,  44  N.  W.  500, 
it  was  held  that  such  intention  was 
relevant  to  show  that  a  fence  mis- 
takenly placed  on  adjoining  soil  did 
r\ot  become  the  property  of  the  ad- 
joinin,g  owner.  And  in  Wake  v. 
Hall.  8  App.  Cas.  204,  where  it  was 
held  that  one  who  had  a  right  by 
cn<=tom  to  mine  on  another's  land 
could  remove  mining  machinery- 
placed  by  him  thereon.  Lord  Black- 
burn refers  to  his  intention  as  an 
important  factor  in  the  case. 


§  238  INTENTION  OF  ANNEXaR.  1567 

seem  m  effect  to  support  this  view,  though  not  in  terms  so  stat- 
ing, it  being  held  that  if  a  trespasser  makes  erections  upon  an- 
other's land,  the  erection  becomes  a  part  thereof, 21  although  it 
may  be  assumed  that  in  such  case  there  is  no  intention  to  make 
the  article  a  part  of  the  other  person's  land.  And  so  where 
the  person  making  the  annexation  has  an  estate  in  the  land  of 
limited  duration  only,  it  would  seem  that,  if  the  articles  are  such, 
and  are  so  annexed,  that  they  would  ordinarily  become  a  part  of 
the  land,  the  fact  that  the  tenant  of  the  limited  estate,  whether 
one  for  life  or  years,  proclaims,  at  the  time  of  the  annexation, 
that  he  intends  to  retain  the  right  to  the  articles  annexed,  should 
not  affect  the  rights  of  the  owner  of  the  remainder  or  reversion, 
and  there  are  a  few  cases  in  which  this  view  is  asserted.^^  There 
are,  however,  it  must  be  conceded,  a  greater  number  of  cases  in 
which  the  right  of  the  tenant  of  a  limited  estate  to  remove  articles 
annexed  by  him  is  based  in  terms  on  the  theory  of  an  intention 
on  his  part  not  to  make  them  a  part  of  the  realty.-^  It  seems 
questionable,  however,  whether  these  cases  can  be  regarded  as 

21  See  cases  cited  in  Ewell,  Fix-  held  that  the  fact  that  one  in  pof5- 
tures,  c.  2;  13  Am.  &  Eng.  Enc.  Law,  session  of  land  under  a  contract  of 
620.  purchase  intended,  when  making  im- 

22  West  Coast  Lumber  Co.  v.  Ap-  provements,  to  remove  them,  did  not 
field,  86  Cal.  335,  24  Pac.  993;  Wright  affect  the  vendor's  right  thereto  on 
V.  Du  Bignon,  114  Ga.  765,  40  S.  E.  the  purchaser's  default.  And  to 
747,  57  L.  R.  A.  669;  McLain  Inv.  Co.  this  effect,  see  Crum  v.  Hill,  40  Iowa, 
v.  Cunningham,  113  Mo.  App.  519,  87  506. 

S.  W.  605.  The  Georgia  case  cited  =3  Linahan  v.  Barr,  41  Conn.  471; 
quotes  from  Ewell,  Fixtures,  58,  Hewitt  v.  General  Elec.  Co.,  164  111. 
that  "in  order  to  give  effect  to  the  420,  45  N.  E.  725;  Baker  v.  McClurg, 
intention  of  a  party  not  to  make  an  198  111.  28,  64  N.  E.  701,  92  Am.  St. 
erection  a  permanent  accession  to  Rep.  261;  Id.,  96  111.  App.  165,  59 
the  realty,  the  person  making  the  L  R.  A.  131;  Conde  v.  Lee,  55  App. 
improvement  must  have  the  right  to  Div.  401,  67  N  Y.  Supp.  157;  Roth  v. 
determine  whether  or  not  the  erec-  Collins,  109  Iowa,  501,  98  N.  W.  543; 
tion  shall  become  a  part  of  the  McMath  v.  Le\T,  74  Miss.  450,  21  So. 
realty;  and  if,  as  between  himself  9,  523;  Hayford  v.  Wentworth.  97 
and  the  owner  of  the  soil,  he  has  no  Me.  347,  54  At].  940;  Holmes  v.  Stan- 
right  to  erect  the  same  as  property  dard  Pub.  Co.  (N.  J.  Eq.)  55  Atl. 
separate  and  distinct  from  the  free-  1107;  Seeger  v  Pettit,  77  Pa.  437,  18 
hold,  an  intention  so  to  do,  no  mat-  Am..  Rep.  452;  Wing  v.  Gray,  36  Vt. 
ter  how  clearly  manifested,  is  of  261;  Menger  v.  Ward  (Tex.  Civ. 
no  avail."  This  statement  is  i+s^^lf  App.)  28  S.  W.  821:  Wall  v.  Hinds, 
taken  from  Ogden  v.  Stock,  34  III.  70  Mass.  (4  Gray)  256,  271,  64  Am. 
522,  85  Am.  Dec.  332,  where  it  was  Dec.   64;    Moray  v.  Hoyt,   62   Conn. 


1568  FIXTURES.  §  239 

authorizing  the  view  that  the  mere  mental  intention  of  the  ten- 
ant, when  making  the  annexation,  subsequently  to  remove  arti- 
cles annexed,  even  though  expressly  declared  to  the  landlord  at 
the  time,  will  preserve  the  personal  character  of  such  articles^ 
or  render  them  removable  by  him,  unless  their  nature  and  mode 
of  annexation  are  themselves  such  as  to  preserve  their  physical 
character,  or  unless  they  come  within  one  of  the  excepted  classes 
of  fixtures  which,  as  is  hereafter  stated,  the  tenant  has  the  right 
to  remove. 

The  question  of  the  intention  of  the  person  making  the  annexa- 
tion is  to  be  distinguished  from  that  of  the  intention,  so  called, 
of  both  the  interested  parties,  as  evidenced  by  agreement  be^' 
twecn  them.  Any  such  agreement  is,  as  we  shall  see  presently, 
conclusive  in  its  effects.^^  The  courts  not  infrequent!}^  use  the 
word  "intention"  in  this  sense,  sometimes  apparently  without 
sufficiently  recognizing  the  distinction  referred  to.^^ 

§  239.    Specific  articles  as  fixtures. 

The  principles  above  summarized  are,  it  seems,  as  before  stated, 
to  be  applied  in  determining  whether  an  article  has  become  part 
of  the  land,  when  the  question  arises  between  landlord  and  ten- 
ant, as  in  other  cases,  and  the  occasional  assertion  that,  as  be- 
tAveen  landlord  and  tenant,  the  claim  of  the  latter  that  particular 
articles  are  personal  chattels  is  to  be  specially  favored  may  prob- 
ably be  considered  as  merely  equivalent  to  a  statement  that,  as 
explained  in  the  next  section,  the  tenant  may,  as  against  his  land' 

542,  557,  26  Atl.  127,  19  L.  R.  A.  611;  28,  64  N.  E.  701,  59  L.  R.  A.  131,  92 

Ryder  v.   Faxon,  171   Mass.   206,   50  Am.  St.  Rep.  261;    Munroe  v.  Arm- 

N.  E.  631,  68  Am.  St.  Rep.  417.  strong,  179  Mass.  165,  60  N.  E.  475; 

24  See  post,  §§  243,  244.  Lansing    Iron    &    Engine   "Works    t. 

25  See  e.  g.,  Wood  v.  Holly  Mfg.  Wilbur,  111  Mich.  413,  69  N.  W.  G67; 
Co.,  100  Ala.  326,  13  So.  948,  21  L.  Schellenberg  v.  Detroit  Heating  & 
R.  A.  787,  46  Am.  St.  Rep.  56;  West  Lighting  Co.,  130  Mich.  439,  90  N. 
Coast  Lumber  Co.  v.  Apfield,  86  Cal.  W.  47,  57  L.  R.  A.  632,  97  Am.  St. 
335,  24  Pac.  993;  Linahan  v.  Barr,  41  Rep.  489;  Potter  v.  Cromwell,  40  N. 
Conn.  471;  Horn  v.  Indianapolis  Y.  287,  100  Am.  Dec.  485:  Brownell 
Nat.  Bank,  125  Ind.  381,  25  N.  E.  558,  v.  Fuller,  60  Neb.  558.  83  N.  W.  669: 
9  L.  R.  A.  876,  21  Am.  St.  Rep.  231;  Adams  v.  Tully,  164  Ind.  292,  73  N. 
Eaves  v.  Estes,  10  Kan.  314,  15  Am.  E.  595. 

Rep.  345;  Baker  v.  McClurg,  198  111. 


.  239  SPECIFIC  ARTICLES.  1569 

lord,  'remove  certain  classes  of  articles  which  would  not  be  re- 
movable as  between  persons  standing  in  another  relation. 

A  chattel  placed  by  the  tenant  on  the  la^d,  if  not  so  annexed, 
or  if  not  of  such  character,  as  to  become  part  of  the  land,  is  re- 
movable by  the  tenant.^e 

Various  decisions  as  to  whether  a  particular  article  annexed 
by  a  tenant  to  the  land  was  to  be  considered  as  still  retaining 
its  personal  character,  or  whether  it  had  become  a  part  of  the 
realty,  are  referred  to  in  the  note  below.^' 

MWansbrou^h  v.  Maton,  4  Adol.  personal  property,  see  O'Donnell  v. 
^  V  S84-  Morey  v.  Hoyt,  62  Conn.  Hitchcock,  118  Mass.  401;  Nigro  v. 
542  26  Atl  m'  19  L  R.  A.  611;  Hatch.  2  Ariz.  144,  11  Pac.  177;  Rob- 
Carlin  v  nitter,  68  Md.  478,  13  Atl.  inson  v.  Wright,  9  D.  C.  (2  Mac 
370  16  Atl  301,  6  Am.  St.  Rep.  467;  Arthur)  54;  Lanphere  v.  Lowe,  3 
Holbrook  V.  Chamberlin,  116  Mass.  Neb.  131;  Carlin  v.  Ritter,  68  Md. 
155  17  Am.  Rep.  146;  Kimball  v.  478,  13  Atl.  370,  16  Atl.  301,  6  Am 
Grand  Lodge  131  Mass.  59;  Bartlett  St.  Rep.  467;  Beckwith  v.  Boyce,  9 
V    Haviland.  92  Mich.  552,  52  N.  W.    Mo.  560.  _ 

1008-  Shapira  v.  Barney.  30  Minn.  Windows  placed  m  a  dwelling 
r^q  14  N  W  270-  Seeger  V.  Pettit,  77  house  have  been  stated  to  be  fixtures, 
pa  437 '18  Am.  Rep.  452;  Crerar  v.  State  v.  Elliot.  11  N.  H.  540^  But 
Daniels',  109  111.  App.  654;  Fulling-  see  State  v.  Whitener,  93  N.  C.  590. 
ton  V    Goodwin.  57  Vt.  641.  Bar  in      saloon   and  large   oyster 

2TA  building  has  been  quite   fre-    counter  annexed  by  tenant  have  been 
guently    decided,    in    the    particular    held     to     be     fixtures.     Guthne     v. 
case    to  be  a  part  of  the  realty,  in    Jones,   108   Mass.  191.   11   Am.  Rep. 
view  of  the  mode  of  annexation  or    335.     So    a    bar,    bar    fixtures     and 
Character   of    the   building    and    the    bowling  alley.    O'Brien  v.  Kusterer. 
purpose  of  its  construction.     Talbot    27   Mich.   289.    And  platform  scales. 
V  Whipple,  96  Mass.  (14  Allen)  177;    set  into  the  earth  in  front  of  a  buUd- 
Madigan    v     McCarthy,    108     Mass.    ing  and  connected  with  a  room  m  it. 
376     11    Am     Rep     371;     Precht    v.    were  held  a  fixture.     Bliss  v.  Whit- 
Howard   187  N  Y.  136,  79  N.  E.  847;    ney,  91    Mass.  (9  Allen)  114.  85  Am. 
Linahan    v     Barr     41    Conn.     471;    Dec.  745.     A  partition  placed  by  the 
Holmes  v    Standard  Pub.  Co.   (N.  J.    tenant  in  a  room,  running  half  way 
Ea  )     55    Atl     1107;     Schlemmer    v.    to  the  ceiling  and  nailed  to   blocks 
N^rth    32  Mo    206;   Marks  v.  Ryan,    let  through  the  plastering,  has  been 
63    Cal    107-    Fletcher   v.    Kelly,    88    regarded  as  a  fixture.     McAuliffe  v. 
Iowa  475,  55  N.  W.  474,  21  L.  R.  A.    Mann,  37  Mich.  539. 
347-    Fortescue  v.  Bowler,  55  N.   J.        Boilers     and     steam    engines     an- 
Eq  741  38  Atl  445;  Carver  v.  Gough.    nexed  by  tenant  have  been  held  part 
153  Pa'  225    25  Atl    1124;   Beckwith    of     realty.     Donnewald     v.     Turner 
V   Bovce    9  Mo.  560   (sheds  for  mak-    Real    Estate  Co..  44   Mo.   App.    350; 
ing   brick).     But   that    a   particular    Merritt   v.    Judd     1^    Cal_  59;    Do^ 
building  erected  by  the  tenant  was    schuetz  v.  HolUday,  82  m.  371.     So 

L.  and  Ten.  99. 


1570 


FIXTURES. 


§240 


§  240.     Removable  fixtiirGS. 

a.     Trade  fixtures.     Since  the   strict   application   of  the   rule 
that  things  annexed  to  the  land,  although  at  the  time  of  annexa- 


a  heating  plant  consisting  of  a  boiler 
set  in  brick  and  cement  and  screwed 
to  pipes  running  through  building. 
Pond  &  Hasey  Co.  v.  O'Connor,  70 
Minn.  266,  73  N.  W.  159,  248.  But 
that  a  portable  engine  and  a  saw- 
mill, though  in  some  degree  attached 
to  the  soil,  were  personalty,  see 
Hughes  V.  Edisto  Cypress  Shingle 
Co.,  51  S.  C.  1,  28  S.  B.  2,  and  that 
view  was  taken  of  a  boiler  cemented 
to  brick  work  merely  to  keep  it  in 
place  (Cooper  v.  Johnson,  143  Mass. 
108,  9  N.  E.  33),  and  of  a  steam 
heating  plant  (semble)  Insurance 
Co.  V.  Buckstaff,  3  Neb.  Unoff.  632,  92 
N.  W.  755.  And  see  Kelsey  v.  Dur- 
kee,  33  Barb.  (N.  Y.)  410;  Barker 
V.  Brick  Co.,  4  Ohio  Dec.  270.  En- 
gines and  boilers  have  usually  been 
regarded  as  part  of  the  realty  when 
the  question  has  arisen  as  between 
persons  standing  in  other  relations. 
See  13  Am.  &  Eng.  Enc.  Law  (2d 
Ed.)    p.  663. 

A  cotton  gin  has  been  held  to  be 
a  fixture  (Hughes  v.  Edisto  Cypress 
Shingle  Co.,  51  S.  C.  1,  28  S.  E.  2),  as 
has  a  "calender,"  a  machine  weighing 
six  tons  and  extending  into  second 
story  of  building,  firmly  fastened  and 
difficult  of  removal.  Talbot  v.  Whip- 
ple, 96  Mass.  (14  Allen)  177.  Machin- 
ery attnched  to  building  by  the  tenant 
with  bolts  and  screws  was  also  held 
to  be  a  part  of  the  realty,  under  stat- 
ute making  all  things  permanently 
attached  fixtures  (McNally  v.  Con- 
nolly, 70  Cal.  3,  11  Pae.  320),  and 
a  fire  frame  fixed  in  the  fire  place 
was  so  regarded.  Gaffield  v.  Hap- 
good,  34  Mass.  (17  Pick.)  192,  28  Am. 
Dec.    290. 


The   following  articles  have  been 
regarded  as  personalty:     Chairs   in 
a  theatre  secured  in  place  by  screws 
(Metropolitan  Concert  Co.  v.  Sperry, 
9  N.  Y.  St.  Rep.  342);  "gas  fixtures" 
(Lav/rence  v.  Kemp,  8  N.  Y.  Super, 
Ct.  [1  Duer]  363;  Wolff  v.  Sampson, 
123  Ga.  40^0,  51  S.  E.  335   [semble]; 
Guthrie  v.  Jones,  108  Mass.  191,  11 
Am.    Rep.    335;    Jarechi   v.    Philhar- 
monic Soc,  79  Pa.  403,  21  Am.  Rep. 
78);    apparatus    for    generating   gas 
(Hays   V.    Doane,    11    N.    J.    Eq.    [3 
Stockt.]  84);  posts  and  boards  lying 
on  premises,  not  intended  to  be  used 
for  erections  thereon,  and  also  hoop 
poles   placed    in   the   ground   by  the 
tenant   (Wing  v.  Gray,  36  Vt.  261); 
machinery   of  a   movable   character, 
though     attached     to     the    building 
(Bartlett  v.  Haviland,  92  Mich.  552, 
52  N.  W.  1008.     And  see  Holbrook  v. 
Chamberlin,   116   Mass.  155,   17   Am. 
Rep.    146);    planking    laid    on    dock 
and  stringer  to  which  it  is  attached 
(Crerar    v.    Daniels,    109    111.    App. 
654);     plants     and     loam     in     pots 
(Young  V.  Chandler,  102  Me.  251,  66 
Atl.  539) ;  stools  in  a  store  on  which 
to  sit    (Lawrence  v.  Kemp,  8  N.  Y. 
Super.  Ct.  [1  Duer]  363);  glass  case, 
stand  of  drawers  and  mirror,  nailed 
by  tenant  of  restaurant  to  the  walls 
(Guthrie  v.  Jones,  108  Mass.  191,  11 
Am.  Rep.  335.     And  see  Kimball  v. 
Grand  Lodge   of  Masons,   131  Mass. 
59);  still  for  making  whiskey  (Ter- 
ry V.  Robins,  13  Miss.   [5  Smedes  & 
M.]  291.     But  see  Moore  v.  Smith,  24 
111.   512;    Pillow  V.  Dove,  6  Tenn  [5 
Hayw.]    109). 


§240 


REMOVABLE  FIXTURES.  1571 


tion  belonj^ng  to  a  person  other  than  the  owner  of  the  land,  be- 
come a  part  of  the  land,  would  operate  to  give  to  the  landlord 
all  articles  annexed  by  the  tenant  for  the  better  enjoyment  of 
the  premises,  and  so  tend  to  prevent  the  making  of  improvements 
by  him,  and  the  most  beneficial  utilization  of  the  premises,  the 
rule  has  been  subjected  to  considerable  relaxations  in  the  ten- 
ant's favor,  and  certain  classes  of  articles,  although  of  such  char- 
acter and  so  affixed  that,  as  between  persons  in  other  relations, 
they  would  be  treated  as  permanent  annexations,  are  ordinarily 
removable  by  him. 

There  are  occasional  statements  to  be  found  to  the  effect  that 
all  annexations  made  by  the  tenant  for  the  better  enjoyment 
of  the  premises  are  removable  by  him,^^  but  these  are  not  in  ac- 
cord with  the  weight  of  authority,  which  is,  substantially,  that 
the  tenant's  rights  of  removal  are  restricted  to(l)  trade  fixtures; 

(2)  domestic  and  ornamental  fixtures;  and,  by  some  decisions, 

(3)  agricultural  fixtures.  These  various  classes  of  fixtures  and 
the  tenant's  rights  in  reference  thereto  will  be  considered  in  the 
above  order. 

The  exceptional  right  of  the  tenant  to  remove  fixtures  annexed 
for  the  purpose  of  trade  was,  in  a  quite  early  ease,  stated  to  exist 
"in  favor  of  trade  and  to  encourage  industry, "^^  and  that  seems 

28  So  it  is  has  been  asserted  that  the  better  enjoyment  of  the  lease- 
the  tenant  may  remove  "erections  hold"  (Hedderich  v.  Smith,  103  Ind. 
made  for  the  more  beneficial  enjoy-  203,  2  N.  E.  315,  53  Am.  Rep.  509). 
ment  of  the  premises"  (Bircher  v.  And  see  to  the  same  general  effect, 
Parker,  40  Mo.  118) ;  fixtures  an-  Asheville  Woodworking  Co.  v.  South- 
nexed  by  the  tenant  "for  his  conven-  wick,  119  N.  C.  611,  26  S.  B.  253; 
ience  and  comfort"  (State  v.  White-  Shaffer  Estate  Co.  v.  Alvord,  2  Cal. 
ner,  93  N.  C.  590);  erections  made  App.  602,  84  Pac.  279;  and  Dubois 
by  tenant  "in  furtherance  of  pur-  v.  Kelly,  10  Barb.  (N.  Y.)  5O0,  crit- 
pose  for  which  the  premises  were  icised  in  Ombony  v.  Jones,  19  N.  Y. 
leased"  (Kerr  v.  Kingsbury,  39  Mich.  234.  In  Winner  v.  Williams,  82 
150,  33  Am.  Rep.  362;  Hay  ward  v.  Miss.  669,  35  So.  308,  it  is  said  that 
School  Dist.  No.  9,  139  Mich.  539,  there  is  an  exceptional  right  of  re- 
102  N.  W.  999);  articles  annexed  by  moval  in  favor  of  "tenants,  trades 
him  for  purposes  of  trade,  "or  some  and  manufactures,"  thereby  assert- 
other  immediate  or  temporary  uses"  ing  a  right  of  removal  in  a  tenant 
(Bliss  v.  Whitney,  91  Mass.  [9  Al-  withont  reference  to  whether  tiie 
l€n]  114,  85  Am.  Dec.  745);  any-  annexation  is  for  any  particular  par- 
thing  affixed  by  the  tenant   (Ross  v.    pose. 

Campbell,  9   Colo.    App.    38,   47   Pac.        29  poole's    Case,    1    Salk.    368,   per 
465);  buildings  erected  by  him  "for   Hoit,  C.  J. 


1572  FIXTURES.  §  240 

the  logical  ground  on  which  to  base  it.  Occasionally  it  is  said 
to  be  based  on  the  presumption  of  an  intention  on  the  part  of  the 
tenant  subsequently  to  remove  the  article,-^^  but  there  appears 
no  more  reason  for  such  a  presumption  when  the  annexation  is 
for  purposes  of  trade  than  when  it  is  for  any  other  purpose.  Aa 
before  remarked,  it  is  a  reasonable  presumption  that  in  every 
case  of  an  annexation  by  a  tenant  having  an  estate  of  limited 
duration  he  intends,  if  possible,  to  remove  the  article  annexed 
upon  the  termination  of  his  interest,  but  such  an  intention  should 
not,  it  seems,  affect  the  rights  of  the  remainderman  or  rever- 
sioner.^i  Occasionally,  moreover,  the  court  seems  to  have  re- 
garded the  question  whether  a  particular  article  is  a  trade  fix- 
ture, for  the  purposes  of  the  rule,  as  dependent  on  whether  the 
tenant  intended  it  to  be  a  trade  fixture.^^  But  whether  an  article 
is  a  trade  fixture  is,  it  is  conceived,  in  no  way  a  question  whether 
it  was  intended  so  to  be,  there  usually,  indeed,  being  no  inten- 
tion in  this  regard,  but  it  is  rather  a  question  whether,  so  far 
as  appears  from  the  nature  of  the  article,  and  the  mode  in  which 
the  premises  were  utilized,  it  was  annexed  for  the  purpose  of  aid- 
ing in  the  conduct  of  a  trade. 

The  determination  of  the  question  whether  a  particular  article 
or  structure  comes  within  the  rule,  as  being  evidently  annexed 
by  the  tenant  to  aid  in  the  carrying  on  of  his  trade  or  business, 
seems  to  involve  but  little  difficulty.  There  have,  however,  been 
numerous  adjudications  upon  the  subject,  and  engines  and  boil- 
ers,"^  industrial  machinery,   and  apparatus  of  various   kinds,^^ 

30  Hill   V.   Sewald,    53   Pa.    271,   91  11ns,   109   Iowa,   501,   98   N.  W.   543; 

Am.    Dec.    209;    Watts-Campbell    Co.  Brownell  v.  Fuller,  60  Neb.  558,  83 

T.  Yuengling,  51  Hun,  302,  3  N.  Y.  N.  W.  669;  Ward  v.  Earl,  86  111.  App. 

Supp.  869.     In  Menger  V.  Ward  (Tex.  635;    Straight    v.    Mahoney,    16    Pa. 

Civ.  App.)  28  S.  W.  821,  an  intention  Super.  Ct.  155    (semble) ;    Carver  v. 

on  the  part  of  the  tenant  that  the  Gough,    153    Pa.    225,    25    Atl.    1124 

articles    should    be    permanently    a  (semble). 

part  of  the  realty  was  held  to  pre-  33  Bergh     v.     Herring-Hall-Marvin 

elude  their  removal  as  trade  fixtures.  Safe  Co.,  69  C.  C.  A.   212,  136  Fed. 

»i  See  ante,  at  note  22.  36S;    Dobschuetz  v.  Holliday,  82  111. 

»2  Linahan  v.  Barr,  41  Conn.  471;  371;     Holbrook    v.    Chamberlin,    116 

Royce  v.  Latshaw,  15  Colo.  App.  420,  Mass.  155,  17  Am.  Rep.  146;  Smith  v. 

62  Pac.  627;    Baker  v.  McClurg,  198  T^Tiitney,    147    Mass.    479,    18    N.    E. 

111.  28,  64  N.  E.  701,  59  L.  R.  A.  131,  229;  Conrad  v.  Saginaw  Min.  Co.,  54 

92   Am.   St  Rep.  261;    Roth   v.   Col-  Mich.  249,  20  N.  W.  39,  52  Am.  Rep. 


§240 


REMOVABLE   FIXTURES.  1573 


appliances  annexed  by  the  proprietor  of  a  place  of  public  enter- 
tainment or  amusement,^-'^  buildings,^^  or  parts  of  a  building,^" 

817;  Andrews  v.  Day  Button  Co.,  132  Fed.  229;  Holbrook  v.  Chamberlin, 
N.  Y.  348,  30  N.  E.  831;  Hayes  v.  116  Mass.  155,  17  Am.  Rep.  146;  Hey 
New  York  Gold  Min.  Co.,  2  Colo.  273;  v.  Bruner,  61  Pa.  87.  Oil  or  gas  well 
Hewitt  V.  Steam  Engine  Co.,  65  111.  casings  and  other  appliances.  Shel- 
App.  153;  Davis  v.  Moss,  38  Pa.  346;  lar  v.  Shivers,  171  Pa.  569,  33  Atl. 
Winner  v.  Williams,  82  Miss.  669,  35  95.  Gang  edger  in  sawmill.  Stokoe 
So.  308.  But  see  Menger  v.  Ward  v.  Upton,  40  Mich.  581,  29  Am.  Rep. 
(Tex.  Civ.  App.)    28  S.  W.   821.  560.     Railroad  rails.    Northern  Cent. 

S4  Cider  mill.  Holmes  v.  Tremper,  R.  Co.  v.  Canton  Co.,  30  Md.  347. 
20  Johns.  (N.  Y.)  29,  11  Am.  Dec.  35  Bar  counters  and  shelving.  Guth- 
238.  Cotton  gin.  McMath  v.  Levy,  rie  v.  Jones,  108  Mass.  191,  11  Am. 
74  Miss.  450,  21  So.  9,  523.  Distill-  Rep.  335;  Bush  v.  Havird,  12  Idaho, 
ing  apparatus.  Moore  v.  Smith,  24  352,  86  Pac.  529;  Berger  v.  Hoerner, 
111.  512;  Pillow  V.  Love,  6  Tenn.  (5  36  111.  App.  360;  Cubbins  v.  Ayres,  72 
Hayw.)  109;  Reynolds  v.  Shuler,  Tenn.  (4  Lea)  329;  Webber  v.  Frank- 
5  Cow.  (N.  Y.)  323;  Burk  v.  Baxter,  lin  Brew.  Co.,  123  App.  Div.  465,  108 
3  Mo.  207.  Ovens  in  a  bakery.  Bak-  N.  Y.  Supp.  251.  And  see  Asheville 
er  V.  McClurg,  96  111.  App.  165;  Id.,  Wood  Working  Co.  v.  Southwick,  119 
198  111.  28,  64  N.  E.  701,  59  L.  R.  A.  N.  C.  611,  26  S.  E.  253.  But  O'Brien 
131,  92  Am.  St.  Rep.  261.  Compare  v.  Kusterer,  27  Mich.  289,  is  to  the 
Collamore  v.  Gillis,  149  Mass.  578,  effect  that  a  bar  counter  is  not  re- 
22  N.  E.  46,  5  L.  R.  A.  150,  14  Am.  movable.  Oyster  counter.  Guthrie 
St.  Rep.  460.  Hydraulic  press.  Fin-  v.  Jones,  108  Mass.  191,  11  Am.  Rep. 
ney  v.  Watkins,  13  Mo.  291.  Electric  335.  "Club  house"  erected  in  beer 
lighting  machinery.  Brown  v.  Reno  garden.  Hedderich  v.  Smith,  103 
Elec.  Light  &  Power  Co.,  55  Fed.  Ind.  203,  2  N.  B.  315,  53  Am.  Rep. 
229;  Havens  v.  West  Side  Elec.  509.  Cisterns,  sinks,  water  and  gas 
Light  Co.,  17  N.  Y.  Supp.  580.  Min-  pipes  in  hotel  or  boarding  house. 
ing  machinery  and  appliances.  Up-  Wall  v.  Hinds,  70  Mass.  (4  Gray) 
degraff  v.  Lesem,  14  Colo.  App.  297,  256,  64  Am.  Dec.  64.  Ball  room 
62  Pac.  342;  Dobschuetz  v.  Holliday,  erected  by  lessee  of  inn.  Ombony  v. 
82  111.  371;  Merritt  V.  Judd,  14  Cal.  Jones,  19  N.  Y.  234.  Bowling  alley. 
59;  Couch  v.  Y^^lsh,  24  Utah,  36,  66  Hanrahan  v.  O'Reilly,  102  Mass.  201. 
Pac.  600.  Sawmill.  Kile  v.  Gieb-  "Scenic  railway."  L.  A.  Thompson 
ner,  114  Pa.  381,  7  Atl.  154.  Plat-  Scenic  R.  Co.  v.  Young,  90  Md.  278, 
form  scales.  Bliss  v.  Whitney,  91  44  Atl.  1024,  47  L.  R.  A.  127.  Hotel 
Mas=.  (^  Allen)  114,  85  Am.  Dec.  attachments,  including  bake  house, 
745:  Allen  v.  Kennedy,  40  Ind.  142.  oven,  fountain,  awning,  furnace, 
See  Seeger  v.  Pettit,  77  Pa.  437,  18  washtubs,  grates,  office  co«nter. 
Am.  Rep.  452.  Heating  apparatus  in  shelving  and  counter  in  cigar  store 
greenhouse.  Royce  v.  Lat?haw,  15  and  bar  attached  to  hotel,  shelving  in 
Colo.  App.  420,  62  Pac.  627.  Shaft-  store  room,  and  certain  inside  shut- 
ing,  belts  and  pulleys.  Brown  v.  ters  and  doors.  Carlin  v.  Ritter,  68 
Reno   Elec.   Light   &   Power  Co.,   55    Md.  478,  13  Atl.  370,  16  Atl.  301,  (J 


1574 


FIXTURES.  S  240 


and  even  plants  grown  hj  a  niirseryman,^^  have  all  been  regarded 
as  trade  fixtures  in  particular  cases,  and  as,  therefore,  removable. 
Generalb^  it  seems,  an  article  so  annexed  as  to  be  part  of  the 
realty  is  a  trade  fixture  if  the  purpose  of  the  a.nnexation  v^^as  to 
aid  in  the  conduct  of  a  calling  exercised  for  the  purpose  of  pecun- 
iary profit,  provided  this  calling  is  not  exclusively  agricultural 
in  its  nature,  and  the  fact  that  the  article  has  also  the  qualities 
of  a  domestic  or  agricultural  fixture  is  immaterial  in  this  re- 
spect.39     Buildings  erected  by  the  tenant  merely  for  the  purpose 

Am.  St.  Rep.  467.  Partitions  and  Lumbering  Mfg.  Co.,  99  Cal.  G36, 
stalls  in  saloon.  Bernheimer  v.  34  Pac.  321.  But  see  Burkhardt  v. 
Adams,  70  App.  Div.  114,  75  N.  Y.  Hopple,  6  Ohio  Dec.  127,  to  effect 
Supp.  93.  Water  closet  and  urinal  that  a  building  erected  for  an  office, 
attached  to  saloon.  Bernheimer  v.  but  used  also  for  other  purposes,  was 
Adams,  70  App.  Div.  114,  75  N.  Y.  not  removable.  Building  erected 
Supp   93.  ^^^  "^®   °^   saloon.     Lewis  v.   Ocean 

36  Repair  shop  built  by  railway  Nav.  Pier  Co.,  125  N.  Y.  341,  26  N. 
company.  Union  Terminal  Co.  v.  E.  301.  Building  erected  for  livery 
Wilmar  &  S.  F.  R.  Co.,  116  Iowa,  392,  stable.  Firth  v.  Rowe.  53  N.  J.  Eq. 
90  N.  W.  92.  Greenhouse  erected  by  520,  32  Atl.  1064.  In  West  Shore  R. 
florist.  Royce  v.  Latshaw,  15  Colo.  Co.  v.  Werner  (N.  J.  Err.  &  App.)  68 
App.  420,  62  Pac.  627;  Free  v.  Stuart,  Atl.  225,  it  is  in  effect  stated  that 
39  Neb.  220,  57  N.  W.  991.  Engine  the  tenant  cannot  remove  a  building 
and  machinery  house.  Smith  v.  erected  by  him  for  hotel  purposes,  as 
Whitney,  147  Mass.  479,  18  N.  E.  constituting  a  trade  fixture. 
229;  Brown  v.  Reno  Elec.  Light  &  ^7  Counting  room  of  wood  erected 
Power  Co.,  55  Fed.  229;  White's  Ap-  in  store.  Brown  v.  Wallis,  115  Mass. 
peal,  10  Pa.  252.     Ice  house  erected    156. 

by  dealer  in  ice.  Antoni  v.  Belk-  3s  Penton  v.  Robart,  2  East,  90; 
nap,  102  Mass.  193.  Dwellings  in-  Lee  v.  Risdon,  7  Taunt.  191;  Brooks 
tended  to  be  merely  accessory  to  v.  Galster,  51  Barb.  (N.  Y.)  196; 
mining  operations.  Conrad  v.  Sagi-  Miller  v.  Baker,  42  Mass.  (1  Mete.) 
naw  Min.  Co.,  54  Mich.  249,  20  N.  27;  Whitmarsh  v.  Walker,  42  Mass. 
W.  39,  52  Am.  Rep.  817;  Couch  v.'  (1  Mete.)  315;  DufCus  v.  Bangs,  122 
Welsh,'  24  Utah,  36,  66  Pac.  600.  N.  Y.  423,  25  N.  E.  980.  See  Maples 
Building  erected  for  use  both  as  v.  Millon,  31  Conn.  598;  Fox  v.  Brls- 
dwelling  and  for  carrying  on  trade,  sac,  15  Cal.  223;  Wintermute  v. 
Van  Ness  v.  Pacard,  27  U.  S.  (2  Pet.)  Light,  46  Barb.  (N.  Y.)  278. 
137,  7  Law.  Ed.  374.  Depot  building  39  See  Wall  v.  Hinds,  70  Mass.  (4 
erected  by  railway  company.  West-  Gray)  256.  64  Am.  Dec.  64;  Holmes 
ern  North  Carolina  R.  Co.  v.  Deal,  90  v.  Tremper,  20  .Tohns.  (N.  Y.)  29,  11 
N.  C.  110;  Can- V.  Georgia  R.  Co.,  74  Am.  Dec.  238  (Cider  mill);  Van 
Ga.  74.  Frame  office  building  in  Ness  v.  Pacard,  27  U.  S.  (2  Pet.) 
lumber  yard.  Security  Loan  &  Trust  137,  7  Law.  Ed.  374. 
Co.     V.     Williamette     Steam     Mills 


§  240  REMOVABLE   FIXTURES,  1575 

of  leasing  them  have,  however,  been  regarded  as  not  within  the 
designation  of  trade  fixtures.'^^ 

In  several  states  there  is  a  statutory  provision  in  confirmation 
of  the  right  to  remove  trade  fixtures,  it  being  provided  that  the 
tenant  "may  remove  from  the  demised  premises,  any  time  during 
the  continuance  of  his  term,  anything  affixed  thereto  for  pur- 
poses of  trade,  manufacture,  ornament,  or  domestic  use,  if  the 
removal  can  be  effected  without  injury  to  the  premises,  unless  the 
thing  has,  by  the  manner  in  which  it  is  affixed,  become  an  integral 
part  of  the  premises.  "^^  Such  a  statute  has  been  held  not  to 
authorize  the  removal  of  a  four  story  building  erected  by  a  ten- 
ant to  be  used  for  stores  and  as  a  lodging  and  boarding  house.^^ 
A  statute  of  one  state,'^^  providing  that  a  tenant,  during  the  term 
or  a  continuation  thereof,  or  while  he  is  in  possession  under  the 
landlord,  may  remove  fixtures  erected  by  him,  has  been  construed, 
in  view  of  a  previous  decision  on  which  it  is  based,  to  give  a 
right  to  remove  trade  fixtures  only.^"* 

It  is  generally  recognized  that  the  tenant  cannot  remove  a 
fixture,  even  though  affixed  for  purposes  of  trade,  if  the  removal 
will  result  in  injury  to  the  premises.'*^     The  injury  must,  how- 

40  Cannon  v.  Hare,  1  Tenn.  Ch.  22.  v.    Jones,    19    N.    Y.    234;    Cohen   v. 

^1  California    Civ.    Code,    §    1019;  Wittemann,  100  App.  Div.  338,  91  N. 

Idaho   Civ.    Code,    §    2385;    Montana  Y.  Supp.   493;    Cubbins  v.  Ayres,   72 

Rev.  Codes  1907,  §  4578;    North  Da-  Tenn.   (4  Lea)   329;  Crymes  v.  Bow- 

kota  Rev.  Codes  1905,  §  3492;   South  eren,   4   Moore  &  P.   143;    Gibson  v. 

Dakota  Rev.   Civ.  Code,  §   899.  Hammersmith  &  City  R.  Co.,  2  Drew 

42  West  Coast  Lumber  Co.  v.  Ap-  &  S.  COS,  32  Law  J.  Ch.  337.  So  an  ad 

field,  86  Cal.  335,  24  Pac.  993.  dition  to  a  building  is  not  removable 

*3  Georgia  Code  1895,  §  3120.  if  its  removal  would  leave  the  prem- 

44  Wright  v.  Du  Bignon,  114  Ga.  ises  in  worse  condition  than  before 
765,  40  S.  E.  747,  57  L.  R.  A.  669.  its   erection.     Friedlander  v.   Ryder, 

45  Davis  v.  Jones,  2  Barn.  &  Aid.  30  Neb.  783,  47  N.  W.  83,  9  L.  R.  A. 
165;    Priedlander  v.  Ryder,   30   Neb.  700. 

783,   47  N.   W.   83,   9  L.   R.   A.  700;  In    Michigan   the   question   of   the 

Powell  V.  McAshan,  28  Mo.  70;  Fort-  right    to    remove    articles    as    trade 

escue  V.  Bowler,  55  N.  J.  Eq.  741,  38  fixtures  is  determined,  it  seems,  not 

Atl.  445;  Capen  v.  Peckham,  35  Conn,  so  much  by  whether  the  removal  will 

88;    Bernheimer  v.   Adams,   70   App.  injure   the  building,  as  by  whether 

Div.  114.  75  N.  Y.  Supp.  93;  Chase  v.  they    have    been    so    built    into    the 

New    York    Insulated    Wire    Co.,    57  building  as  to  become  a  part  of  it. 

111.    App.    205;    Collamore   v.    Gillis,  O'Brien   v.  Kusterer,   27    Mich.   494; 

149  Mass.   578.  22  N.   E.  46,  14  Am.  Felcher  v.  McMillan,  103   Mich.  494, 

St.  Rep.  460,  5  L.  R.  A.  150;  Ombony  61   N.  W.   791.     This  view  seems  to 


1576 


FIXTURES. 


§240 


ever,  be  substantial,  since,  as  has  been  remarked,  "a  screw  or 
nail  can  scarcely  be  drawn  without  attrition.  "■^^  In  determining 
whether  the  removal  involves  injury  to  the  premises,  their  con- 
dition at  the  time  of  the  removal  is  to  be  compared  with  their 
condition  at  the  time  of  the  annexation,  and  the  removal  is  not 
allowable  if,  to  make  the  annexation,  the  premises  were  altered 
or  cut  away,  and  the  removal  of  the  fixture  would  leave  the 
premises  in  a  maimed  or  unfinished  condition.'^ "^  ^nd  if  the  ten- 
ant has  substituted  a  new  fixture  for  one  on  the  premises  at  the 
time  of  taking  possession,  and  this  latter  has  been  injured  or  per- 
manently removed,  he  cannot  assert  any  right  to  remove  the 
substituted  article,  since  the  effect  would  be  to  leave  the  premises 
in  worse  condition  than  when  he  took  the  lease.^^ 

By  some  decisions  the  tenant  cannot  remove  a  trade  fixture  if 
the  removal  will  result  in  the  destruction  of  the  fixture,  or  its 
reduction  to  a  mere  mass  of  crude  materials,^^  though  the  fact 


be  an  outgrowth  of  the  view  that  a 
removable  fixture  is  necessarily  per- 
sonal   property.     See    post,    §    241. 

46  Martin  v.  Roe,  7  El.  &  Bl.  237. 
See  Foley  v.  Addenbrooke,  13  Mees. 
&  W.  174;  Hanrahan  v.  O'Reilly,  102 
Mass.  201;  Powell  v.  McAshan,  28 
Mo.  70;  Bernheimer  v.  Adams,  70 
App.  Div.  114,  75  N.  Y.  Supp.  93; 
Arabs  V.  Hill,  10  Mo.  App.  108. 

47  Whiting  V.  Brastow,  21  Mass.  (4 
Pick.)  310;  Chase  v.  New  York  In- 
sulated Wire  Co.,  57  111.  App.  205; 
Holmes  v.  Standard  Pub.  Co.  (N.  J. 
Eq.)  55  Atl.  1107;  Friedlander  v. 
Ryder,  30  Neb.  783,  47  N.  W.  83,  9 
L.  R.  A.  700. 

48  Hay  V.  Tillyer  (N.  J.  Eq.)  14 
Atl.  18;  Ashby  v.  Ashby,  59  N.  J. 
Eq.  536,  46  Atl.  528;  Dougherty  v. 
Spencer,  23  111.  App.  357;  Bovet  v. 
Holzgraft,  5  Tex.  Civ.  App.  141,  23 
S.  W.  1014;  Pond  &  Hasey  Co.  v. 
O'Connor,  70  Minn.  266,  73  N.  W. 
159,  248.  See  Felcher  v.  McMillan, 
103  Mich.  494,  61  N.  W.  791.  But 
in  Ross  v.  Campbell,  9  Colo.  App.  38, 
47  Pac.  465,  it  is  in  effect  held  that 


he  may  remove  the  substituted  arti- 
cles on  restoring  the  premises  to 
the  same  condition  as  they  were  in 
at  the  time  of  the  lease.  And  see 
Beers  v.  St.  John,  16  Conn.  322.  In 
Andrews  v.  Day  Button  Co.,  132  N. 
Y.  348,  30  N.  E.  831,  the  tenant  was 
allowed  to  remove  an  engine  which 
he  had  substituted  for  one  on  the 
premises,  but  there  the  old  engine 
remained  on  the  premises,  available 
to  the  landlord.  Roth  v.  Collins,  109 
Iowa,  501,  80  N.  W.  543,  seems  to 
involve  a  view  contrary  to  that  stat- 
ed in  the  text.  There  it  was  held 
that  where  the  lessee  wrongfully  re- 
moved fixtures  belonging  to  the  les- 
sor and  substituted  fixtures  be- 
longing to  himself,  these  latter  were 
removable  as  trade  fixtures,  and  the 
leE<?or  could  not  enjoin  their  remov- 
al by  one  to  whom  the  lessee  had 
sold  them,  though  he  could  proceed 
by  action  against  the  lessee  for  the 
removal  of  the  fixtures  originally  on 
the  premises. 

49  Whitehead   v.    Bennett,    27   Law 
J.  Ch.  474,  approved  by  Lord  Chari- 


§  240  REMOVABLE  FIXTURES.  15Y7 

that  the  removal  can  be  effected  only  by  taking  the  article  to 
pieces  will  not,  it  has  been  said,  prevent  the  removal.^^  By  some 
courts,  the  fact  that  the  removal  will  destroy  the  fixture  seems 
not  to  be  regarded  as  an  obstacle  to  the  removal,^i  and  it  is  per- 
haps difficult  to  perceive  why  the  landlord  should  be  given  the 
fixture  merely  because  the  tenant  cannot  remove  it  in  its  existing 
form. 

b.  Domestic  and  ornamental  fixtures.  The  tenant  has,  from 
a  quite  early  day,  been  allowed  to  remove  what  are  known  as 
domestic  and  ornamental  fixtures,  these  being  articles  annexed  by 
the  tenant  of  a  dwelling  in  order  to  render  it  more  comfortable 
and  attractive  as  a  dwelling.  This  exception  in  favor  of  the  ten- 
ant is  said  to  be  based  on  "the  public  policy  and  convenience, 
which  permit  the  tenant  to  make  the  most  profitable  and  com- 
fortable use  of  the  premises  demised,  that  can  be  obtained  con- 
sistently with  the  rights  of  the  owner  of  the  freehold.  "^2  It  has 
also  been  said  that  the  tenant's  right  to  remove  such  fixtures  is 
grounded  on  the  fact  that  they  were  put  there  by  the  tenant 
merely  for  his  temporary  domestic  use  while  he  occupied  the 
premises.^3 

cellor  Selborne  in  Wake  v.  Hall,  7  v.  Reno  Elec.  Light  &  Power  Co.,  55 

Q.  B.  Div.  295.     Collamore  v.  Gillis,  Fed.  229;  White's  Appeal,  10  Pa.  252; 

149  Mass.  578,  22  N.  E.  46.  5  L.  R.  Couch  v.  Welsh,  24  Utah,  36,  66  Pao. 

A.  150,  14  Am.  St.  Rep.  460.  600     (semble);     Belvin    v.     Raleigh 

50  Collamore  v.  Gillis,  149  Mass.  Paper  Co.,  123  N.  C.  138,  31  S.  E. 
578,  22  N.  E.  46,  5  L.  R.  A.  150,  14  655;  Gordon  v.  Miller,  28  Ind.  App. 
Am.  St.  Rep.  460;  Whitehead  v.  Ben-  612,  63  N.  E.  774.  In  Wiggins  Ferry 
nett,  27  Law  J.  Ch.  474.  Co.  v.  Ohio    &  M.  R.  Co.,  142  U.  S. 

51  It  is  so  decided  in  Baker  v.  Mc-  396,  35  Law.  Ed.  1055,  It  is  said,  per 
Clurg,  198  111.  28,  64  N.  E.  701,  59  Brown,  J.,  that  "It  is  difficult  to'con- 
L.  R.  A.  131,  92  Am.  St.  Rep.  261.  ceive  that  any  fixture,  however  solid, 
And  in  several  cases,  brick  or  stone  permanent  and  closely  attached  to 
structures  which,  in  their  nature,  the  realty,  placed  there  for  the  mere 
are  insusceptible  of  removal  without  purposes  of  trade,  may  not  be  re- 
disintegration,  have  been  regarded  as  moved  at  the  end  of  the  term." 
removable,  no  reference  being  made  52  Gaffield  v.  Hapgood,  34  Mass.  (17 
to  the  rule  referred  to.  See  Van  Pick.)  192,  28  Am.  Dec.  290,  per  Put- 
Ness  v.    Pacard,   27   U.   S.    (2   Pet.)  nam,  J. 

137,  7  Law.  Ed.  374;  Dubois  v.  Kelly,  53  Gibson  v.  Hammersmith  &  City 

10  Barb.  (N.  Y.)  496;  Moore  v.  Wood,  R.  Co.,  2  Drew.  &  S.  603,   609.     See 

12   Abb.    Pr.    (N.   Y.)    393;    Carr    v.  Seeger  v.  Pettit,  77  Pa.  440,  18  Am. 

Georgia  R.  Co.,  74  Ga.  73,  81;  Brown  Rep.  452. 


1578  FIXTURES.  I  240 

Articles  which  liave  thus  been  regarded  as  removable  because 
affixed  for  purposes  of  ornament  include  hangings  and  tapestry,^^ 
pier  glasses,^^  ornamental  chimney  pieces,^^  wooden  cornices,^'' 
and  even,  it  is  said,  wainscoting  affixed  to  the  walls  by  screws.^^ 
And  of  articles  annexed  for  purposes  of  domestic  convenience 
which  have  been  regarded  as  removable  by  the  tenant  may  be 
enumerated  bells  and  bell  wires,^^  chandeliers,'^'^  cisterns  and 
sinks,  though  fastened  by  nails  or  set  into  the  floor,^i  a  fireframe 
iixed  in  the  fireplace,*^^  pipes  for  gas  or  water,  removable  without 
injury  to  the  building,^^  pumps,*'^  stoves,  grates,  ranges  and  fur- 
naces,^^  and  water  closet  appliances.^^  In  no  case  does  it  ap- 
pear to  have  been  decided  that  a  building  erected  by  the  tenant 
for  residence  purposes  is  removable  as  a  domestic  fixture,  and  it 
would  seem  that  it  is  not  so  removable.^^ 

54  Beck  V.  Rebow,  1  P.  Wms.  94;  504,  52  S.  E.  619,  3  L.  R.  A.  (N.  S.) 
Leigh  V.  Taylor  [1902]  App.  Cas.  157,    69. 

afg.  In  re  De  Falbe  [1901]  1  Ch.  523.        ei  Wall    v.    Hinds,    70    Mass.     (4 

55  Beck  V.  Rebow,  1  P.  Wms.  94.        Gray)   256,  64  Am.  Dec.  64. 
seElwes  V.  Maw,  3  East,  53;  Leacli        62  Gaffield    v.    Hapgood,    34    Mass. 

V.  Thomas,  7  Car.  &  P.  327;  Bishop  (17  Pick.)   192,  28  Am.  Dec.  290. 

V.  Elliott,  11  Exch.  113.  63  Wall    v.     Hinds,    70     Mass.     (4 

57  Avery  v.  Cheslyn,  3  Adol.  &  E.  Gray)  256,  64  Am.  Dec.  64;  Jenkins 
75.  V.     Gething,  2  Johns.  &  H.  520.     In 

58  See  Lawton  v.  Lawton,  3  Atk.  Hays  v.  Doane,  11  N.  J.  Eq.  (3 
15;  Ex  parte  Quincy,  1  Atk.  477;  Stockt.)  84,  it  was  held  that  the 
Elwes  V.  Maw,  3  East,  53;  Lee  v.  tenant  could  remove  a  gasometer 
Risdon,  7  Taunt.  191;  Buckland  v.  and  apparatus  for  generating  gas. 
Butterfield,  2  Brod.  &  B.  54.  But  64  Grymes  v.  Boweren,  6  Bing.  437; 
wainscoting  might  be  affixed  in  such  McCracken  v.  Hall,  7  Ind.  30. 

a  way,  no  doubt,  as  not  to  be  remov-  es  Roffey  v.  Henderson,  17  Q.  B. 
able.  See  Co.  Litt.  53  a,  and  the  575.  See  Stockwell  v.  Marks,  17  Me. 
discussion  in  Amos  v.  Ferard,  Fix-  455,  35  Am.  Dec.  266. 
tures  (3d  Ed.)  119.  ee  Hay  ford  v.  Wentworth,  97  Me. 
Glass  put  in  the  windows  by  the  347,  54  Atl.  940.  It  does  not  clearly 
tenant  cannot  be  removed  by  him.  appear,  however,  whether  the  ap- 
Co.  Litt.  53  a.  "So  I  apprehend  it  pliance  in  question  was  regarded  as 
would  be  if  the  tenant  should  shingle  removable  because  not  a  fixture,  or 
the  house,  or  put  another  story  upon  because  in  the  nature  of  a  domestic 
it."  Putnam,  J.,  in  Gaffield  v.  Hap-  fixture.  It  was  in  fact  used  in  con- 
good,  34  Mass.  (17  Pick.)  192,  2S  nection  with  an  office,  and  it  was  as- 
Am.  Dec.   290.  sorted  that  the  principle  that  domes- 

59  This  appears  to  be  recognized  tic  fixtures  are  removable  applied  to 
In  Lyde  v.  Russell,  1  Barn.  &  Adol.  such  a   case. 

394;  Pugh  v.  Arton,  L.  R.  8  Eq.  629.        ct  See  Reed  v.  Kirk,  12  Rich.  Law 

60  Raymond  v.  Strickland,  124  Ga.    (S.  C.)   54;  Van  Ness  v.  Pacard,  27 


§  240  REMOVABLE   FIXTURES.  1579 

The  right  to  remove  domestic  and  ornamental  fixtures  is  no 
doubt  subject  to  the  limitation  which  prevails  as  regards  trade 
fixtures,  that  the  removal  shall  not  cause  substantial  damage  to 
the  realty.^s  And  likewise,  in  jurisdictions  where  the  rule  ob- 
tains that  a  trade  fixture  is  not  removable  if  its  removal  involves 
its  disi.ntegration,<59  a  like  rule  would  apply  in  the  case  of  a  domes- 
tie  or  ornamental  fixture.'^*' 

There  is  some  authority  for  recognizing,  in  the  case  of  an  article 
of  a  domestic  or  ornamental  character,  the  existence  of  a  limita- 
tion upon  the  right  of  removal  which  does  not  apparently  exist  in 
the  case  of  trade  fixtures,  that  is,  when  it  has  been  so  affixed  as  to 
become  permanently  incorporated  with  the  land  or  structure  to 
which  it  is  attached.  On  such  a  theory  it  has  been  held  that  a  con- 
servatory or  a  greenhouse  is  not  removable  as  a  domestic  or  orna- 
mental fixture.'''^  A  like  view  has  been  taken  of  gutters  placed 
on  the  roof  of  the  dwelling  and  a  servants'  room  added  to  the 
house,''2  and  it  has  been  decided  that  a  stairway  is  not  removable 
as  a  domestic  fixture.^^  jsjqj.  ^re,  it  seems,  flowers,  bushes  or 
shrubs  planted  by  the  tenant  for  ornamental  purposes,''*  or  for  the 
purpose  of  enjoying  the  fruits  thereof, "^^  removable  by  him.  It  is 
perhaps  with  reference  to  the  same  principle  that  it  has  been  said 
that  the  privilege  of  the  tenant  in  removing  fixtures  of  this  char- 

U.      S.      (2      Pet.)      137.      Compare  &  B.  54;  Jenkins  v.  Gething,  2  Johns. 

Schlemraer  v.  North,  32  Mo.  206.  &  H.  520. 

esGrymes  V.  Boweren,  6  Bing.  437;  ''^2  Wright   v.   Du   Bignon,    114    Ga. 

Wall  V.   Hinds,   70   Mass.    (4    Gray)  765,  40  S.    E.    747,  57  L.  R.  A.   669, 

256,  64  Am.  Dec.  64;  Hanrahan  v.  O'-  quoting  at  length  a  passage  from  a 

Reilly,  102  Mass.  201.     See  Stockwell  text  book,  which  does  not,  however, 

V.  Marks,  17   Me.   455,  35  Am.   Dec.  appear  to  be   entirely  supported   by 

266;    Friedlander  v.  Ryder,   30   Neb.  the    cases    cited    therein,    several    of 

783,  47    N.    W.   83,   9   L.   R.   A.   700.  which    involved    actions   on   account 

The  question   of  such  injury  is  for  '^^    ^^^    removal    by    the    tenant    of 

the  jury.     Avery  v.  Cheslyn,  3  Adol.  articles  which  formed  a  part  of  the 

^  g    ^g  premises  at  the  time  of  the  lease. 


69  See  ante,  at  note  49. 

70  Wall    v.     Hinds,     70     Mass.     (4 


73  Bovet  V.   Holzgraft,  5  Tex.   Ciy. 
App.  141,  23  S.  W.  1014. 

74  Bmpson    v.    Soden,    4    Barn.    & 
Gray)   256,  64  Am.  Dec.  64;    Hanra-    ^(j^j    ggg 

han  V.   O'Reilly,   102  Mass.   201,   are        75  Jenkins  v.  Gething,  2  Johns.   & 
to  this  effect.  H.  525;   Wyndham  v.  Way,  4  Taunt. 

71  Buckland  v.  Butterfield,  2  Bred.    316,  per  Heath,  J. 


1580  FIXTURES.  §  240 

acter  must  be  regarded  as  more  limited  in  character  thdn  that 
which  he  has  as  regards  trade  fixtures  J^ 

c.  Agricultural  fixtures.  It  was  decided  in  England,  in  a  case 
frequently  referred  to/^  that  the  principle  on  which  a  tenant  is 
allowed  to  remove  fixtures  annexed  by  him  for  purposes  of  trade 
cannot  be  extended  so  as  to  allow  him  to  remove  fixtures  annexed 
for  agricultural  purposes.  There  are,  however,  in  this  country, 
quite  a  number  of  dicta  adverse  to  this  decision.'''^  There  is,  more- 
over, at  least  one  case  in  wliich  an  article  annexed  for  the  pur- 
pose of  putting  the  agricultural  products  of  the  soil  in  form  or 
condition  for  the  market  has  been  regarded  as  removable  as  a 
trade  fixture,^^  and  plants  cultivated  for  purposes  of  sale  are,  as 
before  stated,  removable  on  this  ground.^o  As  has  been  well 
said,si  the  principle  on  which  the  right  to  remove  trade  fixtures  is 
based,  that  is,  the  policy  of  encouraging  tenants  to  make  useful 
additions  to  their  premises,  and  to  avail  themselves  of  modern  im- 
provements in  arts  and  manufactures,  would  seem  to  be  quite  as 
applicable  in  the  case  of  appliances  and  erections  which  may  be 
useful  for  the  conduct  of  agriculture.     Furthermore,  in  view  of 

76  See  Ames   v.   Ferard,   Fixtures,  the  intention  of  the   annexor,  how- 

12G;  Bronson,  Fixtures,  §  34;  Ewel!,  ever    material    the    question    of    in- 

Fixtures,  185.  teution     may     be     in     determining 

7T  Elwes  V.  Maw,  3  East,  38.  whether  the  article  is  a  fixture  vel 

TsVan  Ness  v.  Pacard,  27  U.  S.   (2  nofi. 

Pet.)  137;  Harkness  v.  Sears,  26  Ala.  t9  Holmes   v.    Tremper,    20    Johns. 

493,  62  Am.  Dec.  742;   Davis'  Adm'r  (N.  Y.)   29,  11  Am.  Dec.  238   (Cider 

V.  Eastham,  81  Ky.  116;   Perkins  v.  press).     In  McMath  v.  Levy,  74  Miss. 

Swank,  43  Miss.  349;   Dubois  v.  Kel-  450,  21  So.  9,  523,   it  was  held  that 

ly,   10   Barb.    (N.  Y.)    496;    Wing  v.  a    cotton    gin    on    a    plantation    was 

Gray,    36    Vt.    261.     See    Carver    v.  removable  in  view  of  the  recognized 

Gough,  153  Pa.  225,  25  Atl.  1124.  exceptions  "in  favor  of  trade,  manu- 

In  Stevens  v.  Burnham,  62  Neb.  factures  and,  as  in  the  case  before 
672,  87  N.  W.  546,  the  court,  in  re-  us,  tenants."  In  Wintermute  v. 
ferring  to  a  barn,  said  that  there  was  Light,  48  Barb.  (N.  Y.)  278,  "wine 
no  evidence  that  it  was  "intended  to  plants,"  that  is,  plants  from  the 
be  a  mere  agricultural  fixture."  As  roots  of  which  a  wine  is  extracted, 
before  remarked  in  connection  with  were  held  removable  by  the  tenant, 
trade  fixtures  (ante,  §  240  a),  the  Presumably,  however,  these  are  to 
question  whether  an  article  belonga  be  regarded  as  "emblements"  (f rue- 
to  one  of  the  classes  of  fixtures  tus  industriales).  See  post,  §  249. 
which  are  by  law  removable  would  so  See  ante,  at  note  38. 
seem  to  be  a  question  of  the  char-  si  See  Amos  &  Ferard,  Fixtures 
acter  of  the   article  rather  than  of  (3d  Ed.)   appendix  (e),  p.  424. 


,  241  REMOVABLE  FIXTURES,  1581 

the  wide  scope  given  to  the  privilege  of  removing  trade  fixtures, 
as  includiaig,  apparently,  annexations  made  in  the  course  of  any 
gainful  occupation,  including  that  of  appropriating  the  mineral 
profits  of  the  earth,  the  exclusion  of  the  right  of  removal  in  the 
case  of  annexations  made  in  the  course  of  agricultural  operations 
seems  arbitrary  a«nd  illogical. 

§  241.    Removable  fixtures  as  realty  or  personalty. 

It  being  conceded  that  trade  fixtures,  domestic  or  ornamental 
fixtures,  and,  in  some  jurisdictions,  perhaps,  agricultural  fixtures, 
are  removable  by  the  tenant  who  has  annexed  them,  the  question 
arises  whether  such  articles  are,  before  they  are  removed,  to  be 
regarded  as  part  of  the  realty  or  as  personalty.  In  this  regard 
the  cases  are  not  in  unison.  Quite  frequently  the  courts  have 
spoken  of  such  fixtures  as  being  personalty,  apparently  consider- 
ing that  this  necessarily  follows  from  the  fact  that  they  are  remov- 
able, and  without  discussion  of  the  question.82  By  other  deci- 
sions, what  appears  to  the  writer  a  much  sounder  view  has  been 
adopted,  to  the  effect  that  articles  removable  as  belonging  to  one 
of  these  classes  are  nevertheless  a  part  of  the  land  until  removed, 
the  right  to  remove  them  existing  in  the  tenant's  favor  apart  from, 
and  independently  of,  his  unquestioned  right  to  remove  any  arti- 
cles which,  though  on  the  land,  have  not  become  a  part  thereof 
for  any  purpose,  that  is,  which  are  mere  personal  chattels.^s 

82  state   V.  Bonham,    18   Ind.   231;  73  Pa.  302;  Kile  v.  Giebner,  114  Pa. 

Robinr^on  v.  Wright,  9  D.  C.    (2  Mc-  381,    7   Atl.   154;    Wright  v.   McCon- 

Arthur)    54;    Finney  v.  Watkins,  13  nell,  88  Tex.  140,  30  S.  W.  907. 

Mo.  291;   Bircher  v.  Parker,  43  Mo.  Articles  which   the   tenant   has   a 

443;   Bartlett  v.  Haviland,  92  Mich,  right  to  remove,  as  having  been  af- 

552'    52    N.    W.    1008;    Perkins    v.  fixed    for    purposes    of    trade,    have 

Swank,   43   Miss.   349;    Lanpbere   v.  occasionally    been    held    not    to    be 

Lowe,  3  Neb.  131;  Holmes  v.  Treni-  subject   to   a    mechanic's    lien   as   a 

per,  20   Johns.    (N.  Y.)    29,  11  Am.  part  of  the  land.    Koenig  v.  Mueller, 

Dec.  238;  Cook  v.  Transportation  Co.,  39  Mo.  165;  Church  v.  Griffith,  9  Pa. 

1   Denio    (N.  Y.)    91;    Globe  Marble  117.     Compare  Ombony  v.  Jones,  ID 

Mills  Co.  V.  Quinn,  76  N.  Y.  23,  32  N.    Y.    234.     This    is,    however,    pri- 

Am.  Rep.  259;  Western  North  Caro-  marily  a  question  of  the  construction 

lina  R.  Co.  v.   Deal,   90  N.  C.   110;  of   the   mechanic's   lien   law   of   the 

Belvin  v.  Raleigh  Paper  Co.,  123  N.  particular  state. 

C.  138,  31  S.  E.  655;  Lemar  v.  Miles,  ss  Meux  v.   Jacobs,  L.  R.  7   H.   L. 

4  Watts  (Pa.)  330;  Heffner  v.  Lewis,  481,  490;  Bain  v.  Brand,  1  App.  Cas. 


1582  FIXTURES.  §  241 

The  question  whether  fixtures  which  are  removable  by  a  tenant 
are  to  be  regarded  as  a  part  of  the  land  or  as  merely  personal 
property  is  an  important  one.  If  they  are  part  of  the  land,  they 
are  not  the  subject  of  an  action  of  trover,  replevin  or  detinue,^* 
while  the  contrary  is  true  if  they  are  regarded  as  personalty .^^  If 
regarded  as  personalty,  the  articles  annexed  may  be  transferred 
or  mortgaged  as  such  by  the  tenant,^*'  while  if  regarded  as  a  part 
of  the  land,  they  cannot,  in  one  state  at  least,  be  so  disposed  of,^^ 
though  in  some  states,  it  appears,  they  may  nevertheless  be  sold  or 
mortgaged  as  chattels,  the  sale  or  mortgage  being  regarded  as  ef- 
fecting a  "severance,"  and  ipso  facto  converting  them  into  chat- 
tels.ss  It  has  been  well  said  that  the  ' '  facility  with  which  fixtures, 
although  essentially  part  of  the  real  estate,  may  be  made  subject 
to  the  right  of  removal,  to  meet  special  exigencies,  is  one  of  their 
most  valuable  incidents,  and  must  necessarily  be  sacrificed  by  any 
view  of  the  law  w^hich  assumes  that  they  are  personal  property  for 
all  purposes,  because  certain  persons  are  entitled  to  act  as  if  such 
was  their  character. '  '^^  Furthermore,  the  view  that  removable  fix- 
tures are  chattels  seems  incompatible  with  the  prevailing  opin- 
ion that  the  tenant  loses  his  right  to  remove  the  fixtures  if  he  re- 
linquishes  possession  of  the  land  without  having  done  so,^'^  since 

762,  772,   777;    Holland   v.    Hodgson,  85  Finney  v.  Watkins,  13  Mo.  291; 

L.  R.  7  C.  P.  328;    Climie  v.  Wood,  Rosenau   v.    Syring,    25    Or.    386,    35 

L.  R.  4  Exch.  328;   Freeman  v.  Daw-  Pac.  844;  Watts  v.  Lehman,  107  Pa. 

son,  110  U.  S.  270,  28  Law.  Ed.  143;  106;    Vilas   v.    Mason,    25    Wis.    310. 

Sampson     v.     Camperdown     Cotton  See  post,  §  248. 

Mills,  64  Fed.  939;  Guthrie  v.  Jones,  se  See  Lanphere  v.   Lowe,   3   Neb. 

108  Mass.  191;   Treadway  v.  Sharon,  131. 

7  Nev.  37;  Hereford  V.  Pusch  (Ariz.)  8- Bliss  v.    Whitney,    91   Mass.    (9 

68  Pac.  547.  Allen)    114,    85    Am.    Dec.    745.     See 

84  Mackintosh   v.  Trotter,   3  Mees.  Richardson  v.  Copeland,  72  Mass.  (6 

&  W.  184;   Raffey  v.  Henderson,   17  ^^^^^   ^gg^  gg  ^^    j^^^   424. 

Q.  B.  575;  Davis  v.  Jones,  2  Barn  &  ^^  ^^^   Manwaring   v.    Jenison,    61 


Mich.  117,  27  N.  W.  899,  and  cases 
referred  to  13  Am.  &  Eng.  Enc.  Law, 
617. 


Aid.     165;     Guthrie     v.     Jones,     108 

Mass.  191  (trover) ;  Brown  v.  Wallis, 

115  Mass.  156  (replevin);  Pemberton 

V.  King,  13  N.  C.  (2  Dev.  Law)    376 

(detinue).     In  Shapira  v.  Barney,  30        ''  Smith's  Leading  Cases  (Sth  Am. 

Minn.  59,  14  N.  W.   270,  the  article    Ed.),  notes  to  Elwes  v.  Mawe,  at  p. 

annexed  was  regarded  as  the  subject    230. 

of  conversion,  but  there  it  was  re-       so  See  post,  at  notes  109-115. 

movable  by  agreement. 


^  241  REMOVABLE   FIXTURES.  1583 

there  is  no  principle  of  law  by  which  the  owner  of  chattels  loses 
title  thereto  merely  because  he  leaves  his  chattels  lying  on  the  land 
of  another  person.^i  Nor  does  such  view  seem  to  harmonize  with 
the  decisions  that  the  tenant  loses  the  right  of  removal  by  taking 
a  new  lease,92  since  these  are  based  on  the  theory  that  the  fixtures 
pass  under  the  new  lease,  which  they  cannot  well  do,  if  not  a  part 

of  the  land. 

In  jurisdictions  where  removable  fixtures  are  regarded  as  part 
of  the  land,  a  transfer  of  the  land  by  the  lessor  will  pass  title  to 
the  fixtures,  unless  they  are  expressly  excepted  therefrom,^^  and  a 
transfer  by  the  lessee  of  his  interest  in  the  land  and  will  also  pass  a 
like  interest  in  the  fixtures,  together  with  his  right  of  removal.'^* 
Regarding  removable  fixtures  as  personal  property,  on  the  other 
hand,  tliere  seems  some  difficulty  in  construing  a  conveyance  of 
the  llnd,  whether  by  the  lessor  or  by  the  lessee,  as  including  the 
fixtures.  There  are  many  decisions  to  the  effect  that  articles, 
though  attached  to  the  land,  if  not  of  such  character  or  so  at- 
tached as  to  be  part  thereof,  do  not  pass  by  a  conveyance  of  the 
land,»5  and  this  would  seem  to  apply  to  fixtures  annexed  and  re- 
movable by  a  tenant  for  life  or  years,  if  regarded  as  retaining 
their  personal  character  and  so  not  a  part  of  the  land.^^^ 

The  view  that  a  removable  fixture  is  part  of  the  land  has  been 

91  See  Broaddus  v.  Smith,  121  Ala.  Breweries  v.   Schurtz,  104  Cal.   420, 

335    26  So    34,  77  Am.  St.  Rep.  61;  38  Pac.  92. 

Davis  V    Emery,  61  Me.  140,  14  Am.  95  See  cases  cited  13  Am.  &  Bug. 

Rep    553-   Dame  v.   Dame,  38  N.  H.  Enc.  Law    (2d  Ed.)   p.  664,  notes  1, 

429,    75    Am.    Dec.    195;     Corey    v.  2,  3  ad  fin;  p.  665,  note  2;    p.   667, 

Bishop   48  N.  H.  146,  and  cases  cited  note  6  ad  fin. 

note  113  »5<iBut  in  Globe  Marble  Mills  Co. 

^°9,'see  post,  §  242  g.  v.  Quinn,  76  N.  Y.  23,  32  Am.  Rep. 

93  Davis  V.'  Biiffum,  51  Me.  160;  259,  while  it  was  stated  that  ma- 
Bliss  V.  Whitney,  91  Mass.  (9  Allen)  chinery  annexed  by  the  lessee  was 
114  85  Am.  Dec.  745;  "Walsh  v.  Sich-  personal  property,  such  machinery 
ler,'  20  Mo.  App.  374.  was  regarded  as   passing  on  a  sale 

94  Southport  &  West  Lancashire  of  the  land  under  foreclosure  of  a 
Banking  Co.  v.  Thompson,  37  Ch.  mortgage  thereon.  And  see  Bircher 
Div  64-  Meiix  v.  Jacobs,  L.  R.  7  H.  v.  Parker.  43  Mo.  443;  Smyth  v.  Stod- 
L.  481;'  Boyd  v.  Shorrock.  L.  R.  5  dard,  203  111.  424,  67  N.  E.  980,  96 
Bq.  72';  In  re  Calvert  [1898]  2  Ir.  Am.  St.  Rep.  314,  where  it  is  held 
501;  Ex  parte  Astbury,  L.  R.  4  Ch.  that  a  conveyance  of  the  land  by 
630-  First  Nat.  Bank  v.  Adam,  138  the  lessor  constitutes  a  conversion  of 
111    483   28  N.  B.  955;  San  Francisco    the  removable  fixtures,  thus  at  the 


1584  FIXTURES.  §  241 

applied  in  connection  with  the  appropriation  of  land  for  railroad 
purposes,  it  being  decided  that  the  fixture  was  part  of  the  land 
for  which  the  railroad  company  must  pay,  and  not  a  chattel  which 
it  could  demand  to  have  removed,^^  and  so  it  has  been  decided 
that  a  mortgage  by  the  lessee  of  all  the  personalty  on  the  premises 
did  not  cover  trade  fixtures  or  fixtures  removable  by  agreement.^''' 

In  jurisdictions  where  fixtures  are  regarded  as  personalty,  they 
are  obviously  subject  to  levy  under  execution  as  such,^^  and  even 
in  jurisdictions  where  they  are  not  so  regarded,  they  have  been 
held  to  be  subject  to  execution  in  favor  of  the  tenant's  creditors} 
so  long  as  the  tenant's  right  of  removal  endures,  that  is,  the  exe- 
cution creditor  is  entitled  to  exercise  his  debtor's  right  of  re- 
moval.^^ 

Even  in  jurisdictions  where  removable  fixtures  are  regarded  as 
part  of  the  realty,  an  oral  transfer  of  them  has  been  decided  not 
to  be  invalid  under  the  Statute  of  Frauds  as  being  of  an  interest 
in  the  la.nd,  the  transfer  being  apparently  regarded  as  of  the  right 
to  remove  the  fixtures  rather  than  of  the  fixtures  themselves  ;i°'' 
while  a  saile  to  a  person  taking  or  having  an  interest  in  the  land, 
such  as  an  incoming  tenant  or  the  landlord,  is  regarded  as  in  the 
nature  of  an  abandonment  or  waiver  of  the  right  of  removaL^^^ 

same  time  regarding  them  as  a  part  287;    Morey  v.  Hoyt,   62   Conn.    542, 

of   the    land    for   the    purpose    of    a  26  Atl.  127,  19  L.  R.  A.  611.     In  Mc- 

conveyance,   and   yet  personal   prop-  Nally  v.  Conolly,  70  Cal.   3,  11  Pac. 

erty  for  the  purpose  of  supporting  320,    it   was   held    that    certain    ma- 

an    action    for    conversion.  chinery,    removable    by    the    tenant, 

06  Gibson  v.  Hammersmith  &  City  was  part  of  the  realty  so  as  to  be 

R.  Co.,  2  Drew.  &  S.  603,  32  Law  J.  subject    to    execution    and    sale    "as 

Ch.    337,    where    this    view    of    the  real  estate,"  on  behalf  of  a  creditor 

question  is  forcibly  stated.  of    the    tenant.     In    Pemberton    v. 

97  Sampson  v.  Camperdown  Cot-  King,  13  N.  C.  (2  Dev.  Law)  376,  it 
ton  Mills,  64  Fed.  939.  was     decided     that,     since     a    trade 

98  State  v.  Bonham,  18  Ind.  231;  fixture  is  part  of  the  realty,  a  con- 
Havens  V.  West  Side  Elec.  Light  Co.,  stable  had  no  pov/er  to  sell  it,  nor 
17  N.  Y.  Supp.  580;  Lemar  v.  Miles,  could  a  sheriff  sell  it  as  personalty. 

4  Watts  (Pa.)  330;  Heffner  v.  Lewis,  m^  Lee  v.  Gaskell,  1  Q.  B.  Div.  700; 

73  Pa.  302;   Kile  v.  Giebner,  114  Pa.  Oswald  v.  Whitman,  22  Nova  Scotia, 

381,    7   Atl.    154;    Pillow   v.   Love,    6  13. 

Tenn.    (5   Hayw.)    109.  loi  Hallen  v.  Runder,  1  Cromp.  M. 

99  Poole's  Case,  1  Salk.  368;  Hal-  &  R.  266;  South  Baltimore  Co.  v. 
len  V.  Runder,  1  Cromp.  M.  &  R.  266;  Muhlbach,  69  Md.  395,  16  Atl.  117, 
Farrant  v.  Thompson,  5  Barn.  &  Aid.  1  L.  R.  A.  507. 

826;   Freeman  v.  Dawson,  110  U.  S. 


^  2^2  LOSS    OF   RIGHT    OF   REMOVAL.  1585 

Nor  are  such  fixtures  goods  or  chattels  within  the  seventeenth  sec- 
tion of  the  statute.102 

§  242.    Loss  of  tenant's  rights  of  removal. 

a.  End  of  term  or  relinquishment  of  possession.  A  question 
has  frequently  arisen  as  to  the  time  at  which  the  right  to  remove 
trade,  ornamental,  or  agricultural  fixtures,  must  be  exercised,  and 
it  is  difficult  to  extract  a  uniform  rule  from  the  decisions  in  this 
regard.  In  some  decisions  it  is  stated  that  the  removal  must  be 
made  during  the  term,!^^  jn  some,  that  the  right  expires  with  the 
tenancy ,i*'-^  and  in  some,  that  it  may  be  exercised  a  "reasonable 
time ' '  after  the  expiration  of  the  term.i*^^     it  has  occasionally  been 

102  Lee  V.  Gaskell,  1  Q.  B.  Div.  700;  v.  Frick  &  Lindsay  Co.,  207  Pa.  597, 
Hallen  v.  Runder,  1  Cromp.  M.  &  R.    57   Atl.   60. 

266;    Soutli  Baltimore  Co.  v.  Muhl-  lo*  Griffin  v.  Ransdell,  71  Ind.  440; 

bach,  69  Md.  395,  16  Atl.  117,  1  L.  Vv^alsh  v.  Sichler,  20  Mo.  App.   374; 

jj  ^  507.  Stevens  v.  Burnham,  62  Neb.  672,  8? 

103  Dudley   v.    Warde,    Amb.    113;  N.  W.  546. 

Lyde  v  Ruasell  1  Barn.  &  Adol.  394;        los  Gartland  v.  Hickman,  56  W.  Va. 
Harrison  v.  Smith,  19  Nova  Scotia,    75,  49  S.  E.  14,  67  L.  R.  A.  694;  Shel- 
516  (semble);   Beck?/ith  v.  Boyce,  9    lar  v.   Shivers,  171  Pa.  569,  33  Atl. 
Mo    560;    Davis   v.   Buffum,    51   Me.    95;   Berger  v.  Hoerner,  36   111.  App. 
160-    Bo'dwell   Water   Power    Co.    v.    360;    Preston  v.  Briggs,   16  Vt.  124. 
Old' Town  Elec.  Co.,  96  Me.  117,  51    In   Burk   v.   HoIUb,   98   Mass.    55,   it 
Atl    802;  Bliss  v.  Whitney,  91  Mass.    was     held    that    an     "unreasonable 
(9  Allen)  114,  85  Am.  Dec.  745;  Wat-   time"  had  elapsed  when  the  tenant 
riss  V.   First  Nat.  Bank,  124  Mass.    did  not  commence  to  remove  a  house 
571,    26    Am.    Rep.    694;    Darrah    v.    built  by  him  until  six  weeks  after 
Baird,  101  Pa.  265;  Thomas  V.  Crout,    the     expiration     of     the     term.     In 
68  Ky.   (5  Bush)    37;    Stokoa  v.  Up-    Beckwith    v.    Boyce,    9    Mo.    560,    it 
ton,  40  Mich.  581,  29  Am.  Rep.  560;    was  held  that  sheds  erected  by  the 
Conner  V.  Coffin,  22  N.  H.  538;  Samp-    tenant,  being  fixtures,  could  not  be 
son    V.    Camperdown    Cotton    Mills,    removed  by  him  four  months  after 
64    Fed.    939     (dictum);     Smith    v.    the  end  of  the  term.     In  Shellar  v. 
Moore,   26  111.   392;    Dreiske  v.  Peo-    Shivers,  171   Pa.   569,   33  Atl.  95,  it 
pie's  Lumber  Co.,  107  111.  App.  285;    was   held    that   the   removal   of   oil 
Stockwell  V.  Marks,  17  Me.  455,  35    well    appliances    was    not   within    a 
Am.   Dec.   266;    Carlin  v.   Rltter,   68    reasonable  time  if  delayed  till  four 
Md.  478,  13  Atl.  370,  16  Atl.   301,  6    years    after    the    expiration    of    the 
Am".  St.  Rep.  467;  Bliss  v.  Whitney,    lease  and  five  and  a  half  years  after 
91  Mass.  (9  Allen)  114,  85  Am.  Dec.    cessation     of    operations,    and    this 
745;  Tate  v.  Blackburne,  48  Miss.  1:    though  the  lease  authorized  removal 
Overton    v.    Williston,    31    Pa.    115;    "at  any  time."    In  Berger  v.  Hoerner, 
Davis  V.  Moss,  38  Pa.  346;  Donnelly    36  111.  App.  360,  it  is  said  to  be  a 

L.  and  Ten.  100. 


1586 


FIXTURES. 


§242 


stated  that  the  tenant's  right  of  removal  continues  "during  his 
origiaial  term,  and  during  such  further  period  of  possession  by 
him  as  he  holds  the  premises  under  a  right  still  to  consider  him- 
self as  tenant, "^'^^  or  during  what  may,  for  this  purpose,  "be  con- 
sidered as  an  excrescence  on  the  term,"^*^^  or  "during  his  rightful 
continuance  in  possession.  "I'^s  What  is  the  exact  meaning  of 
some  of  these  statements  it  is  difficult  to  say,  but  a  number  of  cases 
recognize  the  right  of  the  tenant  to  remove  the  fixtures  even  after 
the  term,  provided  he  does  so  before  he  relinquishes  possession  of 
the  land,  it  being  said  in  some  that  he  may  make  the  removal  be- 
fore such  relinquishment  of  possession,io9  and  in  others  that  he 
must  do  so.i^*^ 


question  for  the  jury,  under  proper 
instructions,  whether  the  removal 
was  within  a  reasonable  time. 

loeweeton  v.  Woodcock,  7  Mees. 
&  W.  14;  Merritt  v.  Judd,  14  Cal.  59; 
Morey  v.  Hoyt,  62  Conn.  542,  26  Atl. 
127,  19  L.  R.  A.  611;  Youngblood  v. 
Eubank,  68  Ga.  630;  Erickson  v. 
Jones,  37  Minn.  459,  35  N.  W.  267; 
Loughran  v.  Ross,  45  N.  Y.  792,  G 
Am.  Rep.  173.  See  Alexander  v. 
Touhy,  13  Kan.  64,  where  it  is  said 
that  the  removal  must  take  place 
during  such  period  as  the  tenant 
may  lawfully  and  rightfully  remain 
in  possession. 

In  Leader  v.  Homewood,  5  C.  B. 
(N.  S.)  546,  AVilles,  J.,  suggested 
that  a  right  of  removal  existed  so 
long  as  the  tenant  had  no  reason  to 
suppose  that  his  continuance  in  pos- 
session was  objectionable  to  the 
landlord,  and  no  longer,  and  this 
view  was  applied  by  Charles,  J.,  in 
BarfE  v.  Probyn,  73  Law  T.  (N.  S.) 
118. 

107  Mackintosh  v.  Trotter,  3  Mees. 
&  W.  184;  Wright  v.  MacDonnell,  8S 
Tex.  140,  30  S.  W.  907. 

108  Allen  V.  Kennedy,  40  Ind.  142; 
Kedderich  v.  Smith.  103  Ind.  203,  2 
N.  E.  315,  53  Am.  Rep.  509. 


109  Brown  v.  Reno  Elec.  Light  & 
Power  Co.,  55  Fed.  229;  Sampson  v. 
Camperdown  Cotton  Mills,  64  Fed. 
939;  Fenimore  v.  White,  78  Neb.  520, 
111  N.  W.  204;  Dubois  v.  Kelly,  10 
Barb.  (N.  Y.)  496;  State  v.  White- 
ner,  93  N.  C.  590;  Loughran  v.  Ross. 
45  N.  Y.  792,  6  Am.  Rep.  173;  Lewis 
V.  Ocean  Nav.  &  Pier  Co.,  125  N.  Y. 
341,  26  N.  E.  301;  Watriss  v.  First 
Nat.  Bank  of  Cambridge,  124  Mass. 
571,  26  Am.  Rep.  694;  Talbot  v.  Cru- 
ger,  151  N.  Y.  117,  45  N.  E.  364. 

110  Brown  v.  Reno  Elec.  Light  & 
Power  Co.,  55  Fed.  229;  Mueller  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  Ill  Wis. 
300,  87  N.  W.  239;  Bush  v.  Havird, 
12  Idaho,  352,  86  Pac.  529;  Bliss  v. 
Whitney,  91  Mass.  (9  Allen)  114,  85 
Am.  Dec.  745;  GafReld  v.  Hapgood, 
34  Mass.  (17  Pick.)  192,  28  Am.  Dee. 
290;  Hill  v.  Sewald,  53  Pa.  271,  91 
Am.  Dec.  2G9;  Priedlander  v.  Ryder, 
30  Neb.  783,  47  N.  W.  P".  0  L.  R. 
A.  700;  Fitzgerald  v.  Anderson,  81 
Wis.  341,  51  N.  W.  554;  Chiids  v. 
Kurd,  32  W.  Va.  66,  9  S.  B.  362;  Kerr 
V.  Kingsbury,  39  Mich.  150,  33  Am. 
Rep.  362;  Mclver  v.  Est-brcok,  134 
Mass.  550;  Williams  v.  Lane,  62  Mo. 
App.  66;  Fuller  v.  Brownell,  48  Neb. 
145,  67  N.  W.  6;   Dingley  v.  Buffum, 


.  242  LOSS   OF   RIGHT    OF    REMOVAL.  1587 

The  decisions  or  dicta  to  the  effect  that  a  tenant  holding  over  haa 
the  right  of  removal,  and  that  he  loses  the  right  by  giving  up  pos- 
session of  the  premises,  are  usually  in  terms  based  on  the  theory 
that  by  yielding  possession  he  indicates  an  intention  to  abandon 
the  fixtures,  and  that  no  presumption  of  such  an  intention  arises 
so  long  as  he  continues  his  possession.^ii  But,  as  has  been  well 
remarked,  112  if  his  rights  as  to  fixtures  on  the  premises  are  to  be 
determined  by  the  presumption  of  his  intention  to  abandon  vel  non, 
the  same  rule  should  apply  to  chattels  on  the  land  not  so  annexed 
as  to  become  fixtures,  and  he  would  lose  all  right  to  them  by  re- 
linquishing possession  of  the  land,  which  he  certainly  does  not 
do.ii3  This  theory  of  a  presumption  of  abandonment,  however, 
seems  the  only  possible  one  on  which,  in  any  jurisdiction  in  which 
removable  fixtures  are  regarded  as  personalty,ii*  to  support  the 

57  Me.  381;   Youngblood  v.  Eubank.        m  See  Youngblood  v.  Eubank,  68 

68  Ga.'  630;    Donnelly  v.  Thieben,  9    Ga.   630;    Cromle  v.  Hoover,  40  Ind. 

Ill    App     (9  Bradw.)    495;    Sweet  v.    49;     Hedderich    v.    Smith,    103    Ind. 

Myers    3  S.   D.   324,   53   N.  W.  187;     203,  2  N.  B.  315,  53  Am.  Rep.   509; 

Kutter  V.  Smith,  69  U.  S.   (2  WaJl.)    Beckwith  v.  Boyce,  9  Mo.  560;  Lewis 

491-    Cromie  v.  Hoover,  40  Ind.  49;    v.  Ocean  Nav.  &  Pier  Co.,  125  N.  Y. 

Thomas  v.  Grout,   68  Ky.    (5  Bush)    341,  26  N.  E.  301;  Dubois  v.  Kelly.  10 

27  (semble) ;  Dostal  v.  McCaddon,  35    Barb.  (N.  Y.)  496;  Loughran  v.  Ross. 

Towa,  318;  Bliss  v.  Whitney.  91  Mass.    45  N.  Y.  792,  6  Am.  Rep.  173. 
(9    Allen)    114,    85    Am.    Dec.    745;        112  See   per   KIndersley,   V.    C.,    in 
Josslyn  V.   McCabe,   46  Wis.   591,   1    Gibson  v.  Hammersmith  &  City  R. 
N.  W.  174;  Keogh  v.  Daniell,  12  Wis.    Co.,  2  Drew.  &  S.  603,  32  Law  J.  Ch. 
163;    Mueller   v.    Chicago,   M.    &   Si.    337. 

P.  R.  Co.,  Ill  Wis.  300.  87  N.  W.  239.  113  Morey  v.  Hoyt,  62  Conn.  542.  26 
The  Georgia  Code  1895.  §  3120.  pro-  Atl.  127,  19  L.  R.  A.  611;  Talbot  v. 
Tides  that  "a  tenant,  during  the  Whipple,  96  Mass.  (14  Allen)  177; 
term  or  a  continuation  thereof,  or  Donnewald  v.  Turner  Real  Estate 
while  he  is  in  possession  under  the  Co.,  44  Mo.  App.  350;  Western  North 
landlord,  may  remove  fixtures  erec-  Carolina  R.  Co.  v.  Deal,  90  N.  C. 
ted  by  him.  After  the  term  and  pos-  ^i^^^.  jjo^jj^es  v.  Tremper,  20  Johns, 
f^ession  are  ended,  they  are  regarded  ^^^  ^  ^  2g^  .^^  ^^^  j^^^  238;  Dame 
as  abandoned  to  the  use  of  the  land-  ^;  ^^^^  ,g  j^_  ^  ^29,  75  Am.  Dec. 
lord^and  become   the   latter's   prop-    ^^^^.  ^^^^^^^  ^   ^^^^^^^^  ^^  ^^^^    ^^.^ 

^T^^y-"                      „     ^     ^  ..     t,        4.V  Y.)    196;    Lawrence  v.   Kemp,    8    N. 

That    the    landlord    detaches    the  ' 

fixIiJrt  after  the  tenant  has  relin-  Y.  Super.  Ct.    (1  ^-)   ^e^     wan. 

auished    possession   does   not  revest  brough  v.  Maton,  4  Adol.  &  E^  884. 

the  title  thereto  in  the  tenant.     Sto-  Davis  v.  Jones,  2  Barn.  &  Aid.  165. 

koe  V.  Upton,  40  Mich.  581,  29  Am.  n^  See  ante,  at  note  82. 
Rep.   560. 


1588  FIXTURES.  1 242 

view  that  the  right  of  removal  is  lost  by  the  tenant's  relinquish- 
ment of  possession  of  the  land.^^^  On  the  other  hand,  regarding 
the  fixtures  as  constituting  a  part  of  the  land,  with  a  mere  right 
of  removal  in  the  tena.nt,^i^  it  is  perhaps  difficult  to  see  why  a 
tenant  should  be  enabled,  by  wrongfully  holding  over,  to  extend 
the  period  for  the  removal  of  the  fixtures,  thus  profiting  by  his 
own  wrong.  Such  a  case,  it  might  seem,  would  be  governed  by  a 
rule  different  from  that  which  governs  when  he  holds  over  right- 
fully, that  is,  by  permission.  In  the  latter  case,  it  has  been  de- 
cided, the  right  of  removal  continues.^ ^'^ 

b.  Tenancy  of  uncertain  duration.  If  the  tenancy  is  of  uncer- 
tain duration,  such  as  a  tenancy  at  will,  or  if  it  is  subject  to  ter- 
mination on  a  certain  contingency,  the  tenant  has  a  "reasonable 
time"  after  its  termination  within  which  to  remove  the  fixtures, 
provided  at  least  the  termination  is  not  the  result  of  his  own  vol- 
untary act,ii^  and  provided  further,  it  seems,  he  has  not  relin- 
quished possession.119  It  has  been  questioned  whether  this  princi- 
ple would  appl}^  to  a  tenancy  at  will,  when  by  statute  the  tenant 
is  entitled  to  a  reasonable  notice  to  terminate,^-''  and  there  are 
cases  somewhat  adverse  to  its  application  in  favor  of  a  tenant 
under  a  lease  made  by  a  life  tenant,  when  the  leasehold  is  ter- 
minated by  the  death  of  the  lessor.^^i 

115  On  the  theory  that  removable  us  Cromie  v.  Hoover,  40  Ind.  49; 
fixtures  are  personalty,  it  has  been  Sullivan  v.  Carberry,  67  Me.  531; 
held,  in  North  Carolina,  that  the  Northern  Cent.  R.  Co.  v.  Canton  Co., 
right  of  removal  is  not  lost  by  the  30  Md.  347;  Doty  v.  Gorham,  22 
expiration  of  the  term.  Pembertou  Ma^s.  (5  Pick.)  487,  16  Am.  Dec. 
V.  King,  13  N.  C.  (2  Dev.  Law)  376;  417;  Watriss  v.  First  Nat.  Bank  ot 
Western  North  Carolina  R.  Co.  v.  Cambridge,  124  Mass.  571,  26  Am. 
Deal,  90  N.  C.  110.  Holmes  v.  Trom-  Rep.  694;  Talbot  v.  Whipple,  95 
per,  20  Johns.  (N.  Y.)  29,  11  Am.  Mass.  (14  Allen)  177;  Antoni  v.  Belk- 
Dec.  238,  is  to  the  same  effect.  uap,  102  Mass.  193;  Ombony  v.  Jones, 

116  See  ante,  at  note  83.  19  N.  Y.  234;    Loughran  v.  Ross,  45 
iiTCrandall  Inv.  Co.  v.  Ulyatt,  40    N.  Y.  792,  6  Am.  Rep.  173;  Walsh  v. 

Colo.  35,  90  Pac.  591;  Mason  v.  Fenn,  Sichler,  20  Mo.  App.  374;    Hayward 

13    111.    525;    Donnelly    v.    Frick    &  v.  School  Dist.  No.  9,  139  Mich.  539, 

Lindsay  Co.,  207  Pa.  597,  57  Atl.  60;  102  N.  W.  999. 

Darrah  v.  Baird,  101  Pa.  265;  Wright        n^  State  v.  Elliot,  11  N.  H.  540. 

V.  MacDonnell,  88  Tex.  140,  30  S.  W.        120  Erickson  v.  Jones,  37  Minn.  459, 

907;    Finney's    Trustees    v.    City    of  35  N.  W.   267. 

St.    Louis,    39    Mo.- 17S;    Bircher    v.        121  In    White   v.    Arndt,   1    Whart. 

Parker,  40  Mo.  118.  43  Mo.  443.  Com-  (Pa.)    91,    it  is   stated   that  fixtures 

pare  post,  at  note  150.  erected  by  the  lessee  of  a  life  tenant 


§242 


LOSS   OP   RIGHT    OF   REMOVAL. 


1589 


c.  Surrender  or  merger  of  leasehold.  If  the  tenant  surrenders 
his  unexpired  leasehold  estate  to  the  landlord,  he  thereby  loses,  it 
has  been  decided,  the  right  to  remove  the  fixtures.122  And  a  sur- 
render by  operation  of  law^^aa  is  as  effective  for  this  purpose,  it 
seems,  as  an  express  surrender.^ 23 

AVhen  the  title  to  the  leasehold  and  to  the  reversion  become 
united  ia  one  person,  the  leasehold  interest  is  merged,i24  and  ordi- 
narily there  is  no  room  for  further  question  as  to  the  right  to  re- 
move fixtures  annexed  by  the  lessee,  since  his  interests  and  those 
of  the  lessor  have  become  united.  It  may  occur,  however,  that  the 
tenant,  before  the  merger,  has  transferred  his  removable  fixtures 
to  another,  and  the  question  would  then  arise  whether  such  trans- 
feree could  still  assert  the  right  of  removal.  Presumably  he  could 
do  S0.125    For  instance,  a  lessee,  having  transferred  his  fixtures  to 


must  be  removed  before  the  term  Is 
ended  by  the  lessor's  death.  There 
the  right  of  removal  was  given  by 
agreement,  and  this  was  held  not 
binding  on  the  remainderman.  This 
case  was  followed  in  Haflick  v.  Stober, 
11  Ohio  St.  482,  where  the  fixture 
was  by  agreement  removable  at  the 
end  of  the  term,  and  it  was  held 
not  to  be  removable  after  the  term 
was  ended  by  the  lessor's  death. 
In  Jones  v.  Shufflin,  45  W.  Va.  729, 
31  S.  E.  975,  72  Am.  St.  Rep.  848, 
it  was  held  that  after  the  termina- 
tion of  a  lease  by  the  death  of  the 
lessor,  who  had  a  life  estate  merely, 
the  lessee  could  not  remove  a  fixture, 
as  against  the  remainderman,  since 
it  must  be  removed  during  the  term. 
No  siTggestion,  is  made  that  the  les 
see  had  a  reasonable  time  for  re- 
moval. Such  a  view  as  is  indicated 
in  these  cases  places  the  lessee  of  a 
life  tenant  in  a  distinctly  precarious 
position  as  regards  articles  annexed 
by   him    to   the    premises. 

i22Loridnn  &  Westminister  Loan  & 
Discount  Co.  v.  Drake,  6  C.  B.  (N. 
S.)  798;  Sampson  v.  Camperdown 
Cotton  Mills,  64  Fed.  939;  Thropp's 


Appeal,  70  Pa.  395;  Shepard  v. 
Spaulding,  45  Mass.  (4  Mete.)  416; 
Talbot  v.  "Whipple,  96  Mass.  (14  Al- 
len) 177;  Friedlander  v.  Ryder,  30 
Neb.  783,  47  N.  W.  83,  9  L.  R.  A. 
700;  Free  v.  Stuart,  39  Neb.  220,  57 
N.  W.  991. 

An  assignment  by  the  lessee  to 
the  lessor  to  secure  a  debt  deprives 
the  lessee  of  the  right  of  removal 
if  the  debt  is  not  paid.  Breese  v. 
Range,  2  E.  D.  Smith   (N.  Y.)    474. 

122a  See  ante,   §   190. 

123  Jungerman  v.  Bovee,  19  Cal. 
354;  Talbot  v.  Whipple,  96  Mass.  (14 
Allen)  177.  But  see  Baker  v.  Mc- 
Clurg,  198  111.  28,  64  N.  E.  701,  59  L. 
R.  A.  131,  92  Am.  St.  Rep.  261,  to 
the  effect  that  the  making  and  ac- 
ceptance of  a  new  lease  by  one  of 
two  joint  lessees.,  being  intended 
merely  to  release  the  other,  did  not 
involve  any  loss  of  the  right  of 
removal.  The  case  is  not  discussed, 
hoY/^ever,  as  involving  any  question 
of  the  effect  of  surrender.  See  post, 
note  143. 

124  See  ante.  §  12  g  (2). 

125  In  Denham  v.  Sankey,  38  Iowa, 
269,  it  was  held  that  when  the  les- 


1590 


FIXTURES. 


§242 


another,  or,  to  speak  more  accurately  perhaps,  having  transferred 
to  another  his  right  of  removal,^-*'  could  not  debar  such  other  of 
that  right  by  taking  a  conveyance  from  the  lessor.  If  the  rever- 
sion is  subject  to  a  mortgage  at  the  time  of  the  merger,  the  fixtures, 
if  regarded  as  part  of  the  realty,  become,  it  seems,  subject  to  the 
mortgage,  they  being,  after  the  merger,  a  part  of  the  interest  on 
which  the  mortgage  was  given. ^^t  But  it  may  be  shown,  it  ap- 
pears, that  a  conveyance  of  the  reversion  to  the  lessee,  though 
purporting  to  be  absolute,  was  in  reality  intended  as  security  only, 
and  that  consequently  there  was  no  merger  preventing  removal  of 
the  fixtures  by  such  lessee  or  one  claiming  under  him.^^s 

d.  Forfeiture  of  leasehold.  By  the  weight  of  authority,  a  ten- 
ant loses  his  right  to  remove  fixtures  if  by  any  act  or  omission  he 
has  forfeited  his  interest  under  the  lease,i29  provided  there  has 


sor  purchased  the  leasehold,  though 
it  was  mergsd  thereby,  the  rights  of 
a  prior  mortgagee  of  a  mill  thereon 
which  had  always  been  treated  as 
personalty  were  not  affected  by  the 
merger.  In  such  case,  when  the 
article  is  in  effect  personalty ,  by 
agreement,  it  cannot  be  affected  by 
a  merger,  which  reaches  the  lessee's 
interest  in  the  land  only. 

126  See  ante,  at  note  100. 

127  In  Jones  v.  Detroit  Chair  Co., 
38  Mich.  92,  31  Am.  Rep.  314,  it  was 
decided  that  the  fixtures  annexed 
by  the  lessee  became  subject  to  a 
mortgage,  previously  given  by  the 
lessor,  upon  the  lessee's  purchase  of 
the  reversion  "subject  to  the  mort- 
gage," the  language  of  the  mortgage 
covering  annexations  of  that  char- 
acter. It  does  not  clearly  appear 
why  the  fact  that  the  conveyance  to 
the  lessee  was  in  terms  subject  to 
the  mortgage  should  affect  the  ques- 
tion. And  since  a  mortgage  includes 
annexations  to  the  land,  though  not 
speciflcally  mentioned,  it  does  not 
seem  that  the  failure  to  so  mention 
them  should  prevent  the  mortgage 
from  operating  upon  them  after  the 


merger.  Globe  Marble  Mills  Co.  v. 
Quinn,  76  N.  Y.  23,  32  Am.  Rep.  259, 
is  to  the  effect  that  such  a  merger 
of  the  lessee's  interest  in  the  les- 
sor's interest  does  not  subject  the 
fixtures  annexed  by  the  lessee  to  a 
mortgage  previously  made  by  the 
lessor,  on  the  ground  that  "the 
ownership  of  the  chattels  was  sep- 
arate and  independent  of  the  inter- 
est under  the  lease,"  that  is,  that 
they  were  not  a  part  of  the  land. 
This  accords  with  the  New  York 
view  of  the  nature  of  removable  fix- 
tures. 

128  Security  Loan  &  Trust  Co.  v. 
Williamette  Steam  Mills  Lumbering 
&  Mfg.  Co.,  99  Cal.  636,  34  Pac.  321, 
38  Am.  St.  Rep.  314.  There  it  was 
held  that  the  lessee  could  show  that 
a  conveyance  to  him  from  the  lessor 
was  as  security  merely,  as  against 
one  to  whom  the  property  was  sub- 
sequently conveyed  by  the  lessor, 
after  it  had  been  reconveyed  to  him 
by  the  lessee. 

129  Pugh  V.  Arton,  L.  R.  8  Eg.  626, 
38  Law  J.  Ch.  619;  Weeton  v.  Wood- 
cock, 7  Mees.  &  W.  14;  Minshall  v. 
Lloyd,  2  Mees.  &  W.  450;   Kutter  v. 


§242 


LOSS   OF  RIGHT    OF   REMOVAL. 


1591 


been  an  enforcement  by  the  landlord  of  the  forfeiture,i3o  whether 
by  re-entry,isi  a  recovery  in  e.jectment,i32  a  summary  proceed- 
ing/33  or  otherwise.  There  are,  however,  a  fev^  decisions  to  the 
effect  that  the  tenant  has  a  reasonable  time  after  the  loss  of  pos- 
session by  forfeiture  in  which  to  remove  the  fixtures.i^^ 

e.  Eviction  nnder  title  paramount.  In  case  the  tenant  is  evict- 
ed by  title  paramount,  he  cannot,  it  seems,  assert  any  claim  to  fix- 
tures annexed  by  him,  he  being  in  mo  better  position  than  any 
other  person  making  annexations  to  another's  land  without  any 
right  so  to  do.  One  v^^ho  is  wrongfully  in  possession  of  another's 
land  has  no  right  to  remove  articles  annexed  by  him,  as  against 
the  rightful  owner,  and  he  cannot,  it  seems  clear,  by  making  a 
lease  to  another,  enable  this  latter  to  annex  and  remove  articles. 

f.  Delay  in  removal  caused  or  acquiesced  in  by  landlord.  If 
the  landlord  prevents  the  tenant,  by  legal  process  or  otherwise, 


Smith,  69  U.  S.  (2  Wall.)  491  (sem- 
ble) ;  Morey  v.  Hoyt,  62  Conn.  542, 
26  Atl.  127,  19  L.  R.  A.  611;  Davis 
V.  Moss,  38  Pa.  346;  Whipley  v.  Dew- 
ey, 8  Cal.  36;  Massachusetts  Nat. 
Bank  v.  Shinn,  18  App.  Div.  276,  46 
N.  Y.  Supp.  329;  West  Shore  R.  Co. 
V.  Wenner  (N.  J.  Err.  &  App.)  68 
Atl.  225. 

130  Bush  V.  Havird,  12  Idaho,  352, 
86  Pac.  529;  Paine  v.  Coffin,  2  Cleve. 
L.  Rep.  (Ohio)  1,  4  Ohio  Dec.  351; 
Keogh  V.  Daniell,  12  Wis.  163.  In 
Davis  V.  Moss,  38  Pa.  346,  it  was 
held  that  the  tenant  could  not  re- 
move his  fixtures  after  he  had  com- 
mitted an  act  of  forfeiture,  on  the 
theory  that  in  that  state  such  act 
terminates  the  lease  without  any  ac- 
tion on  the  part  of  the  landlord. 

131  Weeton  v.  Woodcock,  7  Mees.  & 
W.  14;  Keogh  v.  Daniell,  12  Wis. 
163;  Little  Falls  Water  Power  Co. 
v.   Hausdorf,  127  Fed.   444. 

132  Minshall  v.  Lloyd,  2  Mees.  &  W. 
450. 

183  Morey  v.  Hoyt,  62  Conn.  542, 
26  Atl.  127,  19  L.  R.  A.  611;  Fried- 


lander  V.  Ryder,  30  Neb.  783,  47  N. 
W.  83,  9  L.  R.  A.  700.  In  Massachus- 
etts Nat.  Bank  v.  Shinn,  18  App.  Div. 
276,  46  N.  Y.  Supp.  329,  it  was  held 
that  the  right  of  removal  must  be 
asserted  in  a  summary  proceeding 
brought  on  account  of  nonpayment 
of  rent  or  the  right  is  lost. 

134  Royce  V.  Latshaw,  15  Colo. 
App.  420,  62  Pac.  627;  Updegraff  v. 
Lesem,  15  Colo.  App.  297,  62  Pac. 
342;  Gartland  v.  Hickman,  56  W. 
Va.  75,  49  S.  E.  14,  67  L.  R.  A.  694. 
See  Moore  v.  Wood,  12  Abb.  Pr.  (N 
Y.)  393;  Miller  v.  Hennessy,  47  Misc. 
403,  94  N.  Y.  Supp,  563.  In  Mickle 
V.  Douglas,  75  Iowa,  78,  39  N.  W.  19S, 
it  was  held  that  the  tenant  had  a 
reasonable  time  after  the  lessor's  re- 
entry, under  a  forfeiture  clause  for 
nonpayment  of  rent,  within  which 
to  remove  fixtures,  although  the 
lease  provided  for  a  right  of  re- 
moval "at  the  termination  of  this 
lease,  unless  all  right  thereto  has 
been  forfeited  by  plaintiffs  by  a  for- 
feiture of  the  lease." 


1592 


FIXTURES. 


§242 


from  removing  tlie  fixtures,  the  time  for  removal  is  extended  till 
after  such  obstruction  is  removed.^ss  And  if  the  landlord,  by  his 
conduct  or  language,  induces  the  tenant  to  leave  the  fixtures  on 
the  premises  for  some  particular  purpose,  as,  for  instance,  that 
they  may  be  sold  for  him  by  the  landlord,  his  right  of  removal  re- 
mains, though  he  has  relinquished  possession.i^s 

The  landlord  may  expressly  stipulate  that  the  tenant  shall  have 
the  right  of  removal  after  the  end  of  the  term  or  relinquishment 
of  possession,!  3  7  ^nd  the  stipulation  may  be  either  oral  or  in  writ- 
ing.188  Such  a  stipulation  has  been  regarded  as  ineffective  as 
against  a  mortgage  by  the  landlord,  made  before  the  making  of 
the  stipulation  but  after  the  aanexation,i29  and  also  as  against  an 
incoming  tenant.^^*^ 


135  Ex  parte  Kerjenvvay,  2  Lowell, 
496,  Fed.  Cas.  No.  6,346  (attachment 
levied  on  fixtures);  Podlecli  v.  Ph el- 
an, 13  Utah,  333,  44  Pac.  838  (forci- 
ble prevention  of  removal).  So 
when  the  landlord  obtains  an  in- 
junction against  the  removal,  the 
tenant  may  remoVfe  after  giving  up 
possession  within  a  reasonable  time 
after  the  dissolution  of  the  injunc- 
tion. Mason  v.  Fenn,  13  111.  525; 
Bircher  v.  Parker,  40  Mo.  118;  Good- 
man v.  Hannibal  &  St.  J.  R.  Co.,  45 
Mo.  33,  100  Am.  Dec.  336. 

136  Thorn  v.  Sutherland,  123  N.  Y. 
236,  25  N.  B.  362;  Torrey  v.  Burnett, 
38  N.  .7.  Law,  457,  20  Am.  Rep.  421. 
So  when  the  tenant  was  requested 
by  the  landlord  not  to  remove  the 
fixtures  pending  negotiations  for  a 
sale.  Young  v.  Consolidated  Imp. 
Co.,  23  Utah,  586,  65  Pac.  720;  Mer- 
riam  v.  Ridpath,  16  Wash.  104,  47 
Pac.   416,   88  L.  R.  A.  267. 

137  See  McCracken  v.  Hall,  7  Ind. 
30;  Free  v.  Stuart,  39  Neb.  220,  57 
N.  W.  991.  Such  a  stipulation  was 
held  not  to  be  shown  by  the  fact  that 
the  lessee  asked  the  lessor  if  he 
could  leave  certain  fixtures  on  the 
premises  and  the  lessor  replied  that 
he   was    willing,    since    they   might 


help  him  to  rent  the  store.  Josslyn 
V.  McCabe,  46  V/is.  591,  1  N.  W.  174. 

In  Bodwell  Water  Power  Co.  v.  Old 
Town  Elec.  Co.,  96  Me.  117,  51  Atl. 
802,  a  clause  providing  that  at  the 
termination  of  the  lease  the  landlord 
should  buy  the  fixtures,  or  allow 
them  to  be  removed,  was  held  to 
allow  their  removal  after  the  term 
if  the  landlord  did  not  exercise  the 
option  of  purchase.  In  Duffus  v. 
Bangs,  122  N.  Y.  423,  25  N.  E.  980, 
it  was  held  that  if  the  landlord  told 
a  purchaser  of  the  tenant's  nursery 
stock,  that  he  could  remove  the 
stock  after  the  term,  he  was  es- 
topped to  claim  the  stock  on  the 
ground  that  the  term  had  come  to 
an  end.  In  Stopper  v.  Kantner,  29 
Pa.  Super.  Ct.  48,  it  v/as  decided 
that  the  landlord  could  not  revoke 
such  permission  to  the  tenant  at 
midnight  of  the  last  day  of  the  term, 
even  though  he  might  possibly  have 
done  so  previously. 

issMcCracken  v.  Plall.  7  Ind.  30; 
Torrey  v.  Burnett,  38  N.  J.  Law,  457, 
20  Am.  Rep.  421. 

139  Thomas  v.  Jennings,  75  Law  T, 
(N.  S.)  274. 

i«  Roffey  V.  Henderson,  17  Q.  B. 
574.    That  Is,  the  grant  of  a  license 


§242 


LOSS    OF  RIGHT    OF   REMOVAL. 


1593 


It  has  been  asserted  in  one  case  that  if  the  tenancy  is  "wrong- 
fully terminated"  by  the  landlord  and  the  tenant  is  ousted,  the 
latter  has  a  reasonable  time  within  which  to  remove  the  fixtures 
annexed  by  him.^'*i  But  it  would  seem  that  the  landlord  cannot 
thus,  by  his  wrongful  act,  abbreviate  the  time  within  which  the 
tenant  may  exercise  the  right  of  removal.  An  eviction  by  the 
landlord  does  not  terminate  the  tenancy,  and  the  tenant  retains 
his  right  to  possession,i-i2  and  consequently  he  has  a  perfect 
right  to  leave  the  fixtures  till  the  expiration  of  the  term  of  the 
lease. 

g.  Acceptance  of  new  lease  by  tenant.  The  weight  of  au- 
thority is  to  the  effect  that,  by  the  acceptance  from  the  landlord 
of  a  new  lease,  containing  no  mention  of  fixtures  annexed  during 
the  tenancy  under  the  former  lease,  the  tenant  loses  his  right  to 
remove  such  fixtures,  the  theory  being  that,  the  fixtures  being  a 
part  of  the  land,  the  tenant,  by  an  acceptance  of  the  new  lease, 
takes  such  an  interest  in  the  fixtures  only  as  he  does  in  the  land, 
that  is,  a  merely  temporary  interest.^^^   Occasionally  a  decision  to 


to  a  lessee  to  remove  the  fixtures 
after  his  term  was  regarded  as  in- 
effective as  against  a  subsequent  les- 
see. 

lii  Eldridge  v.  Hoefer,  45  Or.  239, 
77  Pac.  874.  Tlie  authorities  cited 
do  not  support  the  statement. 

1-12  See  ante,  §  185  h. 

i43Merritt  v.  Judd,  14  Cal.  59; 
Marks  v.  Ryan,  63  Cal.  107;  Sani- 
tary Dist.  of  Chicago  v.  Cook,  169 
111.  184,  48  N.  E.  461,  39  L.  R.  A.  360, 
61  Am.  St.  Rep.  161;  Hedderich  v. 
Smith,  103  Ind.  203,  2  N.  E.  315,  5b 
Am.  Rep.  502;  Watriss  v.  Cambridge 
First  Nat.  Bank,  124  Mass.  571,  26 
Am.  Rep.  634;  Carlin  v.  RiLler,  68 
Md.  478,  13  Atl.  370,  16  Atl.  301,  6 
Am.  St.  Rep.  467;  Bauernschmidt 
Brew.  Co.  v.  McColgan,  89  Md.  135, 
42  Atl.  907;  Williams  v.  Lane,  62 
Mo.  App.  6G;  Champ  Spring  Co.  v. 
B.  Roth  Tool  Co.,  103  Mo.  App.  103, 
77  S.  W.  244:  Gerbert  v.  Sons  of 
Abraham,  59  N.  J.  Law,  160,  35  Atl 


1121,  69  L.  R.  A.  764,  59  Am.  Si. 
Rep.  578;  Ler>ian  v.  Best,  30  111. 
App.  323;  Davis  v.  Carsley  Mfg.  Co., 
112  111.  App.  112;  Gauggel  v.  Ainley, 
83  111.  App.  5S2;  Spencer  v.  Commer- 
cial Co.,  SO  Wash.  520,  71  Pac.  53; 
Sharp  V.  Millignn,  23  Beav.  419; 
Thresher  v.  East  London  Water- 
works Co.,  2  Barn.  &  C.  6GS;  Ex  parte 
Lloyd,  1  Mont.  &  A.  511.  The  case 
of  Loughran  v.  Ross,  45  N.  Y.  792,  6 
Am.  Rep.  173,  to  this  effect,  is  sontc- 
what  questioned  by  Peckham,  J.,  in 
Lewis  V.  Ocean  Nav.  &  Pier  Co.,  125 
N.  Y.  341,  26  N.  E.  301,  but  the  rulo 
is  approved  in  Talbot  v.  Cruger,  151 
N.  Y.  117,  45  N.  E.  364;  Stephens  v. 
Ely,  162  N.  Y.  79,  56  N.  E.  499; 
Precht  V.  Howard,  187  N.  Y.  136,  79 
N.  E.  847;  Nieland  v.  Mahnken,  89 
App.  Div.  463,  85  N.  Y.  Supp.  809. 

In  Baker  v.  McCIurg,  198  111.  28, 
64  N.  E.  701,  59  L.  R.  A.  131,  92  Am. 
St.  Rep.  261,  it  was  decided  that 
where   the  original  lease  was   "can- 


1594  FIXTURES.  §  242 

this  effect  lays  some  stress  upon  the  fact  that  the  new  lease 
contains  a  covenant  by  the  lessee  to  yield  up  the  premises  at 
the  end  of  the  term  in  as  sjood  condition  as  at  the  time  of  the 
lease/ 44  but  it  does  not  seem  that  this  can  be  material  since, 
even  in  its  absence,  a  tenant  has  no  right  to  remove  improve- 
ments covered  by  the  lease  to  him. 

This  doctrine  has  been  held  to  apply  as  against  one  to  whom 
the  right  to  remove  the  fixtures  has  been  transferred  by  the  ten- 
ant who  annexed  them,  upon  the  taking  of  a  new  lease  by  such 
transferee,^45  r^j^d  it  has  also  been  decided  that  such  a  transferee 
loses  his  right  of  removal  if  his  transferor,  while  still  in  pos- 
session of  the  premises,  takes  a  new  lease. ^^e  The  rule  has  even 
been  applied  as  against  a  sublessee  who,  after  making  annexa- 
tions, took  a  new  lease  from  the  original  lessor.^^T 

Since  this  doctrine  is  based  upon  the  theory  that  the  new 
lease  includes  the  fixtures,  as  constituting  a  part  of  the  realty, 
it  necessarily  follows  that  it  has  no  application  to  articles  not 
so  annexed,  or  not  of  such  character,  as  to  constitute  fixtures.^ ^s 

celed"   during  the   term  and  a  new  L.  R.  A.  3G9,   61  Am.   St.  Rep.  161. 

lease   made   for  tlie   balance   of  the  the  presence  of  such  a  covenant  Is 

term,  which  was  executed  by  but  one  referred   to,   but    the   rule    is   recog- 

of  the  two  former  lessees,  and  this  nized     independently     thereof.       In 

was  done  merely  to  release  the  other  George  Bauernschmidt  Brew.  Co.  v. 

from  liaMHty,  there  was  not  a  new  McColgan,   89   Md.    135,   42  Atl.   907, 

lease  within  the  rule.  there  was  such  a  covenant,  but  no 

In  Cronkhite  v.  Imperial  Bank  of  particular  effect  was  given  thereto, 

Canada,  14  Ont.  Law  Rep.  270,  it  was  and  the  same  may  be  said  of  Steph- 

lield  that  a  clause  in  the  new  lease,  ens  v.  Ely,  162  N.  Y.  79,  56  N.  E.  499, 

"provided  that  the  lessee  may  remove  where  the  right  of  removal  was  orig- 

his    fixtures,"    preserved    his    right  inally  given  by  an  agreement  made 

of  removal  as  referring  to  fixtures  subsequent  to  the  original  lease, 

already   annexed  by  him.     Compare  145  Talbot  v.  Cruger,  151  N.  Y.  117, 

St.   Louis   V.   Nelson,   108   Mo.    App.  45  N.  E.  364;  Van  Vleck  v.  White,  60 

210,   83   S.  W.  271,  where  the  right  App.  Div.  14,  72  N.  Y.  Supp.  1026. 

of  removal  given  by  the  second  lease  I'ls  Bauernschmidt  Brew.  Co.  v.  Mc- 

was      restricted     to     improvements  Colgan,  89  Md.  135,  42  Atl.  907. 

erected    "during   said   term."  i*^  Mclver  v.  Estabrook,  134  Mass. 

1*4  Wadman  v.  Burke,  147  Cal.  351,  550. 

81  Pac.  1012,  1  L.  R.  A.  (N.  S.)  1192;  "^  Carlin  v.  Ritter,  68  Md.  478,  13 

Watriss    v.    Cambridge    First    Nat.  Atl.  370,  16  Atl.  301,  6  Am.  St.  Rep. 

Bank,   124    Mass.    571,   26   Am.   Rep.  467.     Smusch  v.  Kohn,  22  Misc.  341, 

694.     In  Sanitary  Dist.  of  Chicago  v.  49  N.  Y.  Supp  176,  seems  also  to  ba 

Cook,  169  111.   184,  48  N.  E.  461,  39  to    this    effect,    as   is   perhaps   Bern- 


§242 


LOSS    OF   RIGHT    OF    REMOVAL. 


1595 


Furthermore,  it  would  seem  to  be  inapplicable  in  any  jurisdiction 
where  removable  fixtures  are  regarded  as  personal  property/'*'' 
since,  if  personal  property,  they  would  not  ordinarily  be  covered 
by  a  second  lease,  which  is  in  terms  of  the  land  only. 

There  seems  to  be  some  inconsistency  between  this  rule,  as 
asserted,  that  a  renewal  lease  puts  an  end  to  the  right  of  removal, 
and  the  decisions,  before  referred  to,!'^^  that  a  tenant  holding 
over  by  permission  does  not  lose  his  right  of  removal,  since  such 
permission  is  in  effect  a  new  lease,  though  only  for  a  brief  or 
indefinite  space  of  time.^^^  The  cases,  however,  undertake  to 
distinguish  in  this  regard  between  a  holding  under  an  extension 
of  the  original  lease  and  under  a  new  lease,  without,  it  may  be 
said,  asserting  any  satisfactory  ground  of  distinction.i52     j^  q^q 


heimer  v.  Adams,  70  App.  Div.  114, 
75  N.  Y.  Supp.  93,  in  which  latter 
case  it  is  said  that  the  rule  is  "not 
applicable  to  trade  fixtures,  not  dis- 
tinctively realty,  designed  to  retain 
their  character  as  personal  property 
and  capable  of  removal  without  ma- 
terial injury  to  the  freehold."  If 
this  means  that  trade  fixtures  are 
not  within  the  general  rule  because 
they  are  not  part  of  the  land,  It  Is 
not  in  accord  with  the  decision  of 
the  New  York  court  of  appeals  in 
Talbot  V.  Cruger,  151  N.  Y.  117,  45 
N.  B.  364.  If  it  means  that  there 
are  two  classes  of  trade  fixtures,  ona 
of  which  constitutes  personalty  and 
the  other  a  part  of  the  land,  it  is 
not  supported  by  authority.  This 
case  is  affirmed  without  opinion  in 
Bernheimer  v.  Adams,  175  N.  Y.  472, 
67  N.  E.  lOSO,  and  is  approved  In 
Bergh  v.  Herring-Hall-Marvin  Safe 
Co.,  69  C.  C.  A.  212,  136  Fed.  368,  70 
L.  R.  A.  756,  where  the  court  seems 
to  construe  its  language  as  meaning 
that  trade  fixtures  are  not  within 
the  rule  because  they  are  personalty. 

149  See  ante,  at  note  82. 

150  See  ante,  at  note  117. 

151  It  is  said  in  reference  to  this 


rule,  in  Amos  &  Ferard,  Fixtures 
(3d  Ed.)  p.  159,  that  in  the  case  of 
the  renewal  of  a  lease,  "there  is  in 
reality  the  grant  of  a  new  interst 
in  the  premises  to  the  tenant,  al- 
though upon  the  same  conditions  as 
those  under  which  he  formerly  held. 
All,  therefore,  which  formed  part  of 
the  premises  at  the  expiration  of  the 
first  term  must,  unless  excluded  by 
the  agreement  of  the  parties,  have 
passed  to  the  landlord  as  part  ot 
the  reversion  out  of  which  the  new 
term  is  granted  to  the  tenant.  It 
the  view  here  taken  is  correct,  it 
seems  to  follow  that  the  tenant's 
right  of  removing  fixtures  will  be 
lost,  although  the  further  tenancy 
may  arise  merely  from  his  holding 
over  and  paying  rent  after  the  ex- 
piration of  his  term;  for  he  thereby 
becomes  a  tenant  under  a  new  ten- 
ancy from  year  to  year."  The  prin- 
ciple is  the  same,  it  is  conceived,  if 
the  owner's  consent  to  the  tenant's 
continued  possession  is  indicated  by 
word  of  mouth,  without  the  accept- 
ance of  rent  or  the  execution  of  any 
written  instrument.  He  holds  under 
a  new  tenancy,  not  under  the  old. 
152  Compare  ante,  §  210. 


1596  FIXTURES.  §  242 

case  the  question  of  the  applicability  of  the  rule  is  regarded  as 
dependent  on  whether  the  right  of  continued  possession  is  given 
orally  or  in  writing,!^^  -yvhile  in  others  it  is  regarded  as  dependent 
on  whether  the  continued  possession  is  on  the  same  terms  as  be- 
fore, it  being  in  such  case  regarded  as  under  a  mere  extension 
of  the  old  lease,  while  it  is  under  a  new  lease  if  the  terms  are 
different.154 

In  two  or  three  jurisdictions  the  doctrine  that  the  acceptance 
of  a  new  lease,  not  referring  to  the  fixtures,  involves  a  loss  of 
the  right  of  removal,  has  been  repudiated.i^^  ^s  before  sug- 
gested, in  so  far  as  in  either  of  these  jurisdictions  removable 
fixtures  may  be  regarded  as  personalty,  this  view  seems  the  only 
possible  one,  and  the  judicial  statements  to  the  effect  that  the 
right  of  removal  is  not  lost  by  the  new  lease  seem  in  fact  to  be 
based  on  the  theory  that  the  fixtures  are  the  personal  effects  of 

IBS  Ex  parte  Hemenway,  2  Lowell,  elaborate  opinion  to  this  effect  by 
496,  Fed.  Cas.   No.    6,346.  Cooley,  J.     There,  however,  the  right 

154  Crandall  Inv.  Co.  v.  Ulyatt,  40  of  removal  existed  by  reason  of  an 
Colo.  35,  90  Pac.  59;  Ross  v.  Camp-  express  stipulation,  and  this  would 
bell,  9  Colo.  App.  38,  47  Pac.  465;  seem  to  render  the  articles  annexed 
Royce  v.  Latshaw,  15  Colo.  App.  420,  personalty  (see  post,  §  243  c).  This 
62  Pac.  627;  Hedderich  v.  Smith,  103  case  is  apparently  approved  in  Radey 
Ind.  203,  2  N.  E.  315,  53  Am.  Rep.  v.  McCurdy,  209  Pa.  306,  58  Atl.  558, 
509;  Watriss  v.  Cambridge  First  67  L.  R.  A.  359,  103  Am.  St.  Rep. 
Nat.  Bank,  124  Mass.  571,  26  Am.  1009,  though  there  the  continued  pos- 
Rep.  694;  Estabrook  v.  Hughes,  8  session  was  regarded  as  under  an 
Neb.  496;  Young  v.  Consolidated  "extension"  of  the  lease.  It  is  also 
Imp.  Co.,  23  Utah,  586,  65  Pac.  720;  approved  in  V/ittenmeyer  v.  Board 
Lynn  v.  Waldron,  38  Wash.  82,  80  of  Education,  10  Ohio  Cir.  Ct.  R.  119, 
Pac.  292.  ^^d  the  same  view  was  asserted  in 

Where  there  is  a  stipulation  for  Devin  v.  Dougherty,  27  How.  Pr.  (N. 
extension  in  the  original  instrument  Y.)  455.  In  Wright  v.  Macdonnell, 
of  lease,  the  tenant  holds  under  the  88  Tex.  140,  30  S.  W.  907,  also,  the 
original  lease  during  the  extended  court  refers  with  approval  to  tha 
term  as  before  (ante,  §  218),  and  case  first  cited,  though  the  decision 
there  can  be  no  question  of  his  is  in  terms,  it  seems,  based  on  a  pre- 
losing  his  right  of  removal  by  avail-  sumption  that  the  new  lease,  in  that 
ing  himself  of  the  right  to  extend,  case,  being  intended  to  be  temporary 
Howe's  Cave  Ass'n  v.  Houck,  66  only,  until  a  new  lease  was  drawn 
Hun,  205,  21  N.  Y.  Supp.  40;  Id.,  141  up,  did  not  include  the  fixtures. 
N.  Y.  606,  36  N.  E.  740.  In  Maryland  the  former  rule  has 

155  Kerr    v.    Kingsbury,    39    Mich,    been  changed  by  statute.     Code  Pub. 
150,  33  Am.  Rep.  362,     contains  an    Gen.  Laws  1904,  art.  53,  §  27. 


§  243  GRANTS  OF  RIGHT  OF  REMOVAL..  X5SI7 

the  tenant,' ^^^  Avithout,  however,  any  apparent  recognition  of  the 
fact  that  tlie  doctrine  criticized  involves  the  view  that  the  ten- 
ant does  not  own  the  fixtures  but  has  a  mere  right  of  removal.^'^'^ 
In  one  ease  it  was  decided  that  the  doctrine  did  not  apply,  in 
view  of  evidence  that  the  language  of  the  new  lease  was  not  in- 
tended to  cover  the  fixtures,  supported  by  a  presumption  from 
the  relation  of  the  parties  that  this  was  not  intended.'^s  ^ 
seems  that  when  the  description  in  such  lease  is  general  in  terms, 
evidence  would  always  be  admissible  to  show  that  it  was  not  in- 
tended by  the  parties  that  tiie  fixtures  should  be  covered  there- 
by.159 

It  has  been  held  that  the  reason  of  the  doctrine  above 
discussed  applies  in  ease  the  tenant  takes  a  contract  for  the  sale 
to  him  of  the  premises,  and  thereafter  remains  in  possession 
thereunder,  it  being  decided  that  he  thereby  loses  the  right  of  re- 
moval,i8o  and  the  same  effect  has  been  given  to  a  contract  be- 
tween the  landlord  and  tenant,  made  after  the  institution  of  an 
ejectment  suit  by  the  former  against  the  latter,  by  which  the 
former  agreed  not  to  issue  a  writ  of  possession  for  a  certain 
period.' ®i 

§  243.    Stipulations  gfranting  rights  of  removal. 

a.  General  considerations.  Not  infrequently  the  parties,  by 
stipulation  in  the  instrument  of  lease,  or  distinct  therefrom, 
undertake  to  determine  the  tenant's  right  to  remove  annexations 
to  the  land.  We  will  first  consider  the  case  of  stipulations  grant- 
ing rights  of  removal  and  then  of  stipulations  restricting  such 
rights.' ^2 

156  When  the  fixtures  as  originally  150,  33  Am.  Rep.  362;  Wright  v.  Mac- 
annexed  by  the  tenant  can  be  re-  donnell,  88  Tex.  140,  30  S.  W.  907. 
garded  as  personalty  by  reason  of  iss  Second  Nat.  Bank  v.  O.  E.  Mer- 
an  express  stipulation  giving  the  rill  Co.,  69  Wis.  501,  34  N.  W.  514. 
right  of  removal  (post,  §  243  c),»it  Compare  Baringer  v.  Evenson,  127 
seems  clear  that  the  renewal  lease  Wis.  36,  106  N.  W.  801. 
does  not  operate  upon  them  so  as  to  159  See  4  Wigmore,  Evidence,  § 
deprive  the  tenant  of  the  right  of  2465;  Amos  &  Perard,  Fixtures  (3d 
removal.     McCarthy    v.    Trumacher,  Ed.)   160. 

108  Iowa,  284,  78  N.  W.  1104,  75  Am.  leo  Merritt  v.  Judd,  14  Cal.  59. 

St.    Rep.    254.     See    Hertzberger    v.  ici  Fitzherbert  v.   Shaw,    1  H.   Bl. 

V/itte,   22  Tex.  Civ.  App.  320,  54  S.  258;  Heap  v.  Barton,  12  C.  B.  274. 

W.  921.  362  Occasionally  the  lease  in  terms 

15T  See  Kerr  v.  Kingsbury,  39  Mich,  transfers  to  the  lessee  fixtures  then 


1598 


FIXTURES. 


§243 


A  stipulation  giving  rights  of  removal  has  been  assumed  to 
displace  entirely  the  common-law  rights  of  the  tenant  in  this  ra- 
gard/^2  so  that  if  the  stipulation  gives  a  right  to  remove  only 
at  a  certain  time  or  under  certain  conditions,  the  tenant  cannot 
assert  a  right  to  remove  the  article  as  a  trade,  domestic,  or 
agricultural  fixture,  without  reference  to  such  restriction, 

A  stipulation  granting  to  the  tenant  a  right  to  remove  an  article 
annexed  to  the  land  is  not  within  the  fourth  or  seventeenth  sec- 
tions of  the  Statute  of  Frauds,  and  so  need  not  be  in  writing,^*'* 
though  evidence  of  an  oral  stipulation  in  this  regard  may  be  in- 
admissible in  the  particular  case  under  the  "parol  evidence  rule," 
as  bearing  on  a  matter  otherwise  provided  for  in  the  iastrument 
of  lease. 1^^  Such  a  stipulation  may  even  be  inferred  from  cir- 
cumstances.^ ^^ 

If  there  is  a  stipulation  clearly  giving  the  tenant  the  right 
to  remove  annexations  of  a  certain  character,  the  fact  that  the 
removal  will  result  in  injury  to  the  premises  is  necessarily  imma- 
terial.icT 


on  the  premises  belonging  to  the 
landlord,  giving  him  the  right  of  re- 
moval. See  Handforth  v.  Jackson, 
150  Mass.  149,  22  N.  B.  634;  O'Brien 
V.  Mueller,  96  Md.  134,  53  Atl.  633; 
Keefe  v.  Furlong,  96  Wis.  219,  70  N. 
W.  1110,  65  Am.  St.  Rep.  47. 

163  See  Allen  v.  Gates,  73  Vt.  222, 
50  Atl.  1092;  Lake  Superior  Ship 
Canal  R.  &  Iron  Co.  v.  McCann,  86 
Mich.  106,  48  N.  W.  692.  In  In  re 
New  York,  101  App.  Div.  527,  92  N. 
Y.  Supp.  8,  there  is  a  dictum  that 
a  provision  authorizing  removal  does 
not  enlarge  the  right  of  removal 
which  the  lessee  would  otherwise 
have  had.  This  is  not  always  so, 
as  the  right  of  removal  apart  from 
stipulation  is  subject  to  various  re- 
strictions. 

104  Broaddus  v.  Smith,  121  Ala. 
335,  26  So.  34,  77  Am.  St.  Rep.  01; 
McCracken  v.  Hall,  7  Ind.  30;  Gray 
V.  Oyler,  65  Ky.  (2  Bush)  256;  South 
Baltimore  Co.   v.  Muhlbach,   69  Md. 


395,    16    Atl.    117,    1    L.    R.   A.    545; 

Powell  v.  McAshan,  28  Mo.   70;   Du- 
bois v.  Kelly,  10  Barb.   (N.  Y.)   496. 

165  See  Tait's  Ex'r  v.  Central  Lun- 
atic Asylum,  84  Va.  271,  4  S.  E.  697. 

A  stipulation,  outside  the  lease, 
that  a  building  erected  by  the  lessee 
shall  belong  to  the  lessor,  is  not  in- 
consistent Avith  a  recital  in  the  lease 
of  the  intended  erection  of  the  build- 
ing, or  with  a  covenant  therein  that 
the  lessee  shall  deliver  up  the  prem- 
ises in  as  good  condition  as  at  the 
time  of  the  lease.  Ryder  v.  Faxon, 
171  Mass.  206,  50  N.  E.  631,  68  Am. 
St.  Rep.  417. 

166  Gray  v.  Oyler,  65  Ky.  (2  Bush) 
256;  Howard  v.  Fessenden,  96  Mass. 
(14  Allen)  124;  Morris  v.  French, 
106  Mass.  326;  Ryder  v.  Faxon,  171 
Mass.  206,  50  N.  E.  631,  68  Am.  St. 
Rep.   417. 

167  Hunt  V.  Potter.  47  Mich.  197, 
10  N.  W.  198.  See  Broa'-ldus  v. 
Smith,  121  Ala.  335,  26  So.  34,  77  Am. 


§  243  GRANTS  OF  RIGHT  OF  REMOVAL.  I599 

Occasionally  the  lease  give?  the  tenant  in  terms  the  right  to 
remove  fixtures  only  upon  the  performance  of  some  condition 
precedent  on  his  part.i'^^  A  provision  that  the  lessee  shall  have 
the  right  of  removal,  "all  covenants  being  complied  with"  on  his 
part,  has  been  regarded  as  rendering  the  performance  of  the 
covenants  a  condition  precedent  to  the  removal,  so  that  a  tender 
of  performance  on  condition  that  the  lessor  would  permit  the  re- 
moval was  insufficient.! ^^'^  The  fact,  however,  that  the  lease  gave 
a  right  to  remove  improvements  only  "if  the  conditions  of  this 
lease  are  fully  complied  with"  was  held  not  to  render  them  irre- 
movable in  equity  because  the  rent,  stipulated  to  be  paid  in  ad- 
vance, was  thirteen  days  in  arrears  before  a  tender  thereof  was 
made.!'''*' 

b.  Articles  annexed  with  landlord's  assent.  Ordinarily,  if 
one  annexes  an  article  to  another's  land  by  the  license  or  per- 
mission of  the  landowner,  an  agreement  that  the  annexor  may 

St.  Rep.  61,  apparently  to  this  effect,  rent,  as  well  as  the  expiration  of  the 
In  Lake  Superior  Ship  Canal  R.  &  lease,  were  regarded  as  conditions 
Iron  Co.  V.  McCann,  86  Mich.  106,  48  precedent  to  removal.  Mathinet  v. 
N.  W.  692,  it  is  said  that  if  there  Giddings,  10  Ohio,  364. 
is  a  stipulation  allowing  removal,  170  Estabrook  v.  Hughes,  8  Neb. 
the  mode  of  annexation  is  imma-  496.  Where  the  lease  gave  the  ten- 
terial.  In  Powell  v.  McAshan,  28  Mo.  ant  the  right  of  removal  at  the  ex- 
70,  it  was  decided  by  a  majority  of  piration  of  the  term  provided  he  had 
two  judges  to  one  that  a  contract  paid  the  taxes,  the  right  to  the 
authorizing  the  removal  of  all  build-  buildings,  it  was  decided,  was  not 
ings,  sheds,  and  other  temporary  lost  to  him  because  the  tenancy 
houses  and  improvements,  did  not  came  to  an  end  before  the  expiration 
authorize  the  removal  of  erections  of  the  term  in  a  way  presumably  not 
so  connected  with  buildings  already  in  contemplation  of  the  parties, 
on  the  premises  that  they  could  not  as  by  condemnation  proceedings, 
be  removed  without  materially  In-  with  taxes  unpaid,  and  he  was  held 
juring  the  latter.  This,  however,  to  be  entitled  to  the  damages  paid 
was  on  a  construction  of  the  particu-  in  the  condemnr.tion  proceedings  for 
lar  contract.  the  things  annexed.     Muller  v.  Earle, 

lessee  Snowden  v.  Memphis  Park  35  N.  Y.  Super.  Ct.  (3  Jones  &  S.) 
Ass'n,  75  Tenn.    (7  Lea)     225.  ^61.     Covenants  by  the  lessee  to  pay 

169  Clemens  v.  Murphy,  40  Mo.  121.  taxes,  and  by  the  lessor  to  permit  the 
So  when  the  landlord  agreed  that  the  removal  of  imr>roveraents,  have  been 
tenant  might  remove  his  improve-  regarded  as  Independent,  the  leass 
ments,  "provided  the  rents  are  paid  not  in  terms  making  them  otherwise, 
which  may  be  due  on  the  lease  at  Strohmever  v.  Zeppenfield,  28  Mo. 
its   expiration,"  the  payment  of  the   App.  268. 


iouo 


FIXTURES. 


§24G 


remove  the  article  will  be  inferred/ "^^  and  there  are  some  cases 
to  the  effect  that  a  like  rule  applies  if  the  landlord  gives  per- 
mission to  the  tenant  to  make  erections.^ '^^  The  fact,  however, 
that  the  tenant  has  an  interest  in  the  land  during  which  he  may 
enjoy  the  benefit  of  the  annexation  would  seem  to  render  the 
inference  less  imperative  than  when  the  annexor  has  no  interest 
therein.^^3  The  landlord's  mere  failure  to  object  cannot  be  re- 
garded as  constituting  a  grant  of  permission  for  the  purpose  of 
such  a  rule. 

c.  Effect  as  rendering  articles  personalty.  There  are  two 
modes  in  which  a  stipulation  giving  the  tenant  a  right  of  re- 
moval might  be  considered  as  taking  effect,  that  is,  either  by  re- 
garding the  article  annexed  as  a  part  of  the  realty  belonging 
to  the  landlord,  and  the  stipulation  as  giving  a  license  to  the 
lessee  to  come  upon  the  premises  and  remove  it,  or  by  regarding 
the  stipulation  as  preserving  the  chattel  character  of  the  article 
and  the  tenant's  title  thereto.  The  latter  theory  is  that  which 
has  usually  been  adopted,!'''^  and  this  coincides  with  the  view 


171  See  cases  cited  13  Am.  &  Eng. 
Enc.  Law    (2d  Ed.)    p.   625. 

172  Osg-ood  V.  Howard,  6  Me.  (6 
Greenl.)  452,  20  Am.  Dec.  322;  Doak 
V.  Wiswell,  38  Me.  569;  Duff  v.  Sni- 
der, 54  Miss.  245:  Schapira  v.  Bar- 
ney, 30  Minn.  59,  14  N.  W.  270  (sem- 
ble) ;  Wright  v.  Macdonnell,  88  Tex. 
140,  30  S.  W.  907. 

173  That  the  fact  that  the  annexor 
has  an  interest  in  the  land  may  ex- 
clude the  inference  of  a  right  of  re- 
moval from  the  landlord's  consent  to 
the  annexation,  see  Cooper  v.  Adams, 
60  Mass.  (6  Cush.)  87;  Howard  v. 
Fessenden,  96  Mass.  (14  Allen)  124; 
Merchants'  Nat.  Bank  v.  Stanton,  55 
Minn.  211,  56  N.  W.  821,  43  Am.  St. 
Rep.  491;  Holmes  v.  Standard  Pub. 
Co.  (N.  J.  Eq.)  55  Atl.  1107;  13  Am. 
&  Eng.  Enc.  Law,  626.  In  Mclver  v. 
Estabrook,  134  Mass.  550,  it  is  de- 
cided that  the  lessor's  consent  to  the 
erection  of  a  bi\ilding  does  not  in- 
volve an  agreement  that  it  is  not  to 
be  a  fixture. 


174  Scarth  v.  Ontario  Power  &  Flat 
Co.,  24  Ont.  446;  Broaddus  v.  Smith, 
121  Ala.  335,  26  So.  34,  77  Am.  St.  Rep. 
61;  Lake  Superior  Ship  Canal  R.  & 
Iron  Co.  V.  McCann,  86  Mich.  106, 
48  N.  W.  692;  Brearley  v.  Cox,  24  N. 
J.  Law,  287;  Mott  v.  Palmer,  1  N.  Y. 
(1  Comst.)  564;  Kribbs  v.  Alford, 
120  N.  Y.  519,  24  N.  E.  811;  White's 
Appeal,  10  Pa.  252;  Wick  v.  Bredin, 
189  Pa.  S3,  42  Atl.  17;  Wright  v.  Mac- 
donnell, 88  Tex.  140,  30  S.  W.  907; 
Fitzgerald  v.  Anderson,  81  Wis.  341, 
51  N.  W.  554;  Handford  v.  Jackson, 
150  Mass.  149,  22  N.  E.  634;  Adams 
V.  Goddard,  48  Me.  212;  Hershberger 
V.  Johnson,  37  Or.  109,  60  Pac.  838; 
Stout  V.  Stoppel,  30  Minn.  56,  14  N. 
W.  268;  Hartwell  v.  Kelly,  117  Mass. 
-'?35;  Booth  v.  Oliver,  67  Mich.  664,  35 
N.  W.  793;  Mott  v.  Palmer,  1  N.  Y. 
(1  Comst.)  564;  Wick  v.  Bredin,  189 
Pa.  83,  42  Atl.  17;  Adams  v.  St. 
Louis  &  S.  P.  R.  Co.,  138  Mo.  242, 
28  S.  W.  496,  29  S.  W.  836. 

In  In  re  Welch,  108  Fed.  367,  it  Is 


§243 


GRANTS  OF  RIGHT  OF  REMOVAL. 


IGOi 


ordinarily  taken  in  regard  to  an  article  annexed  by  one  having 
no  interest  in  the  land.^"^  There  are  a  few  cases,  however,  which 
appear  to  regard  an  article  annexed,  by  the  tenant,  though  re- 
movable by  agreement,  as  constituting  a  part  of  the  land.^"^  It 
seems  that  if  the  chattel  is  so  closely  annexed  to  the  land  as  to 
become  an  integral  part  thereof,  an  agreement  allowing  the  ten- 
ant to  remove  it  might  take  effect  merely  as  a  license,  and  so 
not  preserve  the  chattel  eharacter.^'^'^ 


held  that  if  a  building  is  removable 
by  agreement,  machinery  placed  in 
the  building  is  personalty. 

175  See  cases  cited  13  Am.  &  Eng. 
Enc.  Law  (2d  Ed.)  622;  Ewell,  Fix- 
tures, c.  3. 

176  In  Prescott  v.  Wells,  3  Nev.  82, 
there  is  a  dictum  to  that  effect;  and 
in  Trask  v.  Little,  182  Mass.  8,  64 
N.  E.  206,  it  is  said  of  an  article 
annexed,  which  the  tenant  was  in 
terms  given  the  right  to  remove, 
that  "we  think  that  the  character  of 
the  platform  was  such  that  as  soon 
as  erected  it  became  a  part  of  the 
lealty  and  not  a  mere  movable  chat- 
tel." No  reference  is  made  to  the 
possible  effect  of  the  stipulation  as 
making  the  article  personalty. 

In  Newhoff  v.  Mayo,  48  N.  J.  Eq. 
619,  23  Atl.  262,  27  Am.  St.  Rep.  455, 
it  is  held  that,  though  a  building 
erected  by  the  tenant  is  removable 
by  him  by  agreement,  he  has  an  in- 
terest therein  amounting  to  a  "chat- 
tel real."  In  Griffin  v.  Marine  Co., 
52  111.  130,  it  is  held  that  a  mortgage 
by  the  lessee  of  his  leasehold  inter- 
est and  of  improvements  made  by 
him  which  are  removable  by  agree- 
ment is  a  mortgage  of  a  chattel  real, 
and  not  governed  by  the  law  as  to 
mortgages  of  chattels;  and  in  Staf- 
ford V.  Adair.  57  Vt.  63,  a  mortgage 
on  a  building  annexed  by  the  lessee 
under  such  an  agreement  was  held 
to  be  a  mortgage  of  a  "chattel  real." 


These  cases  all  seem  to  assume  that 
the  article  annexed  becomes  part  of 
the  land,  in  spite  of  the  agreement. 
The  phrase  "chattel  real"  is  ordi- 
narily used  at  the  present  day  as  de- 
scriptive of  an  estate  in  land  less 
than  freehold,  and  the  propriety  of 
its  application  to  a  chattel  personal 
which  has,  by  annexation,  become 
part  of  the  land,  may  perhaps  be 
doubted. 

In  First  Nat.  Bank  v.  Adam,  138 
111.  483,  28  N.  E.  955,  it  was  held 
that  a  provision  in  the  lease  that 
buildings  to  be  erected  by  the  lessee 
should  be  personal  property  did  not 
make  the  building  a  personal  chat- 
tel, so  as  to  exclude  it  from  the 
operation  of  a  mortgage  on  the  lease- 
hold. 

177  It  is  so  stated  in  Hershberger 
V.  Johnson,  37  Or.  109,  60  Pac.  83S,  and 
there  are  numerous  dicta  so  restrict- 
ing the  effect  of  an  agreement  for  re- 
moval when  a  chattel  is  annexed  by 
one  having  no  interest  in  the  land. 
See  Sword  v.  Low,  122  111.  487,  13 
N.  E.  826;  Eaves  v.  Estes,  10  Kan. 
314,  15  Am.  Rep.  345;  Ford  v.  Cobb, 
20  N.  Y.   344;    Fortman  v.  Goepper, 

14  Ohio   St.   558;    Henkle  v.   Dillon. 

15  Or.  610,  17  Pac.  148;  Hershberger 
V.  Johnson,  37  Or.  109,  60  Pac.  838; 
German  Sav.  &  Loan  Soc.  v.  ¥/eber, 

16  Wash.  95,  47  Pac.  224,  38  L.  R.  A. 
267. 


L.  and  Ten.  101. 


1602  FIXTURES.  §  243 

As  removable  fixtures,  even  though  regarded  as  part  of  the 
land,  are  subject  to  execution  in  favor  of  the  creditors  of  the 
tenant,^ '^^  so  a  fortiori  articles  which  are  removable  by  agree- 
ment, being  in  theory  personalty,  are  subject  thereto.^ '^^ 

Articles  removable  by  the  tenant  by  agreement  are  not,  it  has 
been  decided,  a  part  of  tlie  land,  so  as  to  become  subject  to  a 
mechanic's  lien  in  favor  of  a  third  pcrson-is"^  But  the  mechanics' 
lien  statute  may  in  effect  provide  otherwise.^^^ 

d.  Validity  in  favor  of  and  as  against  third  persons.  There 
appear  to  be  no  decisions  as  to  whether  the  right  to  remove  an 
article  annexed,  under  an  agreement  for  removal,  may  be  exer- 
cised by  the  assignee  of  the  leasehold.  Kegarding  the  article  as 
personalty  and  not  as  a  part  of  the  land,^^^  ^  transfer  of  the  lease- 
hold interest  in  the  land  would  seem  to  be  insufficient  in  itself 
to  transfer  such  article,  in  which  case  the  title  thereto  and  the 
consequent  right  of  removal  would  remain  in  the  original  les- 
j-gg  182a  ^Q  express  transfer  of  the  article  by  the  lessee  would  no 
doubt  be  operative  in  favor  of  the  transferee  and  give  him  the 
right  of  removal. 

A  stipulation  for  the  right  to  remove  articles  annexed  by  the 
tenant  may  be  asserted  by  him,  it  has  been  decided,  against  one 
claiming  under  a  prior  mortgage  made  by  the  landlord,  provided 
the  security  of  the  mortgage  is  not  affected  by  such  removal,^  ^^ 

178  See  ante,  at  note  99.  seems  equivalent  to  saying  that  its 

1-9  Broaddus    v.    Smith,    121    Ala.  character  was  not  changed,  but  that 

335,  26   So.   34,  77  Am.  St.  Rep.  61,  the  parties  had  the  right  merely  to 

is  to  this  effect.  treat  it  for  certain  purposes  as  per- 

180  White's     Appeal,     10     Pa.     252.  sonal  property. 

And  see  Richardson  v.  Koch,  81  Mo.  i82  See  ante,  at  note  175. 

264.  i*2n  But  in  Kribs  v.  Alford,  120  N. 

181  See  Richardson  v.  Koch,  81  Mo.  Y.  519,  24  N.  E.  811,  it  was  assumed 
264;  Hart  v.  Globe  Iron  Works,  37  that  articles  annexed  by  the  lessee 
Ohio  St.  75.  In  Dobschuetz  v.  Holli-  but  removable  by  agreement  pass 
day,  82  111.  371,  it  was  decided  that  under  an  assignment  of  the  lease,  it 
articles  annexed,  though  removable  being  held,  however,  that  the  as- 
hy agreement,  were  part  of  the  land,  signee,  in  the  particular  case,  took 
so  that  the  person  furnishing  them  subject  to  a  prior  mortgage  of  the 
was  entitled  to  a  mechanic's  lien,  articles,  as  he  had  notice  thereof. 
The  court  fsays  that  the  agreement  i83  Broaddus  v.  Smith,  121  Ala. 
of  the  parties  to  treat  the  article  as  335,  26  So.  34,  77  Am.  St.  Rep.  61; 
personaltT  could  not  change  the  Paine  v.  McDowell,  71  Vt.  28,  41 
character  of  the  property  so  far  as  Atl.   1042. 

third  parties  were  concerned.     This 


§  243  GRANTS  OF  RIGHT  OF  REMOVAL.  1603 

and  this  was  held  to  be  the  case  even  though  the  stipulation  was 
not  made  till  after  foreclosure,  if  made  during  the  period  for 
redemption.! S4  it  has  been  held,  however,  that  the  tenant  cannot 
assert  such  right  as  against  a  subsequent  lessee  of  the  premises, 
who  took  his  lease  without  notice  of  the  agreement.^^^  And 
the  stipulation,  if  by  a  life  tenant  lessor,  is  not  enforcible  by 
the  lessee,  after  the  life  tenant's  death,  as  against  the  remainder- 
man.^^e 

e.  Loss  of  benefit  of  stipulation— Time  for  removal.  If  arti- 
cles removable  by  agreement  are  to  be  regarded  as  personalty, 
in  accordance  with  the  view  usually  expressed,!^^  it  would  seem 
to  follow  that  the  rule  applying  to  the  removal  of  fixtures,  that 
in  the  absence  of  agreement  they  must  be  removed  during  the 
term,  or  at  least  before  the  tenant  relinquishes  possession,  can 
have  no  application,  and  that  the  tenant  has  the  same  time  for 
removal  as  if  the  articles  were  in  no  way  physically  annexed 
to  the  land,  that,  in  other  words,  the  tenant,  though  guilty  of 
a  trespass  on  the  land  if  he  undertakes  to  remove  the  fixtures 
after  he  relinquishes  possession,  retains  the  title  to  them,  as 
does  any  other  person  whose  personal  property  is  on  another's 
land,  until  he  loses  his  right  to  recover  them  by  the  running  of 
the  limitation  period.i^^  This  position,  however,  logical  as  it 
may  be,  is  not  in  accordance  with  all  the  decisions,  it  having  been 
held,  in  at  least  one  jurisdiction,  that  the  same  rule  in  this  re- 
gard applies,  whether  the  articles  are  removable  because  an- 
nexed for  the  purpose  of  trade,  or  because  of  a  stipulation  to  that 
effect.! ^9  jt  ^vas  held  in  one  case,  indeed,  that  even  though  the 
lessee  of  a  gas  well  was  given  the  right  to  remove  appliances  "at 

184  Pioneer     Sav.     &   Loan    Co.    v.  W.  162,  to  the  effect  that  a  right  of 
Fuller,  57  Minn.  60,  58  N.  W.  831.  removal  by  agreement  is  not  lost  by 

185  Trask   v.    Little,    182    Mass.    8,  the  expiration  of  the  term.     Knight 
64   N.   E.  206.  V.  Orchard,  92  Mo.  App.  466,  is  to  the 

isfi  White  V.  Arndt,  1  Whart.  (Pa.)  effect  that  it  is  not  lost  by  forfeiture 

91;    Haflick  v.    Stober,   11    Ohio   St.  of  the  term. 

482.  ^^^  Lewis  v.  Ocean  Nav.  &  Pier  Co., 

187  See   ante,  at  note  174.  125  N.  Y.  341,  26  N.  E.  301;   Talbot 

1S8  It  is  so  decided  In  Broaddus  v.  v.   Cruger,   151  N.   Y.   117,  45   N.  E. 

Smith,  121  Ala.  335,  26  So.  34,  77  Am.  364;     Massachusetts    Nat.    Bank    v. 

St.  Rep.  61.     And  see  Lake  Superior  Shinn,    18   App.   Div.    276,   46   N.   Y. 

Ship   Canal   &   Iron   Co.  v.   McCann,  Supp.   329;    Fitzgerald   v.   Anderson, 

86    Mich.    lOG,    48    N.    W.    692,    and  81  Wis.  341,  51  N.  W.  554  «( dictum). 

Atkinson  it  Diron,  96  Mo.  588,  10  S. 


1604  FIXTURES.  §  243 

any  time, ' '  he  could  not  remove  them  four  years  after  the  expira- 
tion of  the  lease,  and  five  years  and  six  months  after  the  comple- 
tion of  the  well  and  the  ascertainment  of  its  unproductive  char- 
acter.190  go  it  has  been  decided  that,  when  the  lease  provided 
that  the  lessee's  improvements  should  belong  to  him  and  might 
be  removed  during  the  last  sixty  days  of  the  term,  his  right  of 
removal  was  lost  by  his  failure  to  remove  within  the  time 
named.^^^ 

It  has  been  decided  that  a  clause  authorizing  removal  "at  the 
end  of  the  term"  enables  the  tenant  to  remove  within  a  reason- 
able time  after  the  end  of  the  term,i92  though  on  the  other  hand 
it  has  been  said  that  such  a  clause  does  not  authorize  a  removal 
after  the  term.^^^  Such  a  provision  has  also  been  held  to  au- 
thorize removal  before  as  well  as  at  the  end  of  the  term,!^^  i^^t 
not  after  a  re-entry  by  the  landlord  for  breach  of  condition.i^^ 

190  Shellar  v.  Shivers,  171  Pa.  569,  Tenn.  Ch.  576.  But  see  Ex  parte 
33  Atl.  95.  In  Churchill  v.  More,  Gould,  13  Q.  B.  Div.  454.  The  les- 
4  Cal.  App.  219,  88  Pac.  290,  such  see  has  the  right  during  such  time 
words  were  held  to  allow  of  removal  of  ingress  and  egress  for  the  pur- 
over  a  year  after  abandonment  of  pose  of  removal  (Davidson  v.  Crump 
the  well.  In  Gartland  v.  Hickman,  Mfg.  Co.,  99  Mich.  501,  58  N.  W.  475), 
56  W.  Va.  75,  49  S.  B.  14,  67  L.  R.  but  no  greater  right  (Caperton  v. 
A.  694,  it  was  held  that  a  lessee  ex-  Stege,  91  Ky.  351,  15  S.  W.  870,  16 
pressly   given   the  right  of   removal    S.  W.  84). 

"at  any  time"  could  remove  fixtures  las  Darrah   v.    Baird,   101    Pa.    265, 

within    a    "reasonable    time"    after  272. 

the  end  of  the  lease.  "*  Alexander   v.    Touhy,    13    Kan. 

191  Hughes  v.   Kershow.    42    Colo.  64. 

210,  93  Pac.  1116,  15  L.  R.  A.  (N.  i95  Whipley  v.  Dewey,  8  Cal.  36. 
S.)  723.  There  it  was  said  that,  So  the  issue  of  a  warrant  in  sum- 
upon  the  failure  to  remove  the  im-  mary  proceedings  for  nonpayment 
provements  within  the  time  named  of  rent  has  been  regarded  as  term- 
they  became  "a  part  of  the  real  es-  inating  the  right  of  removal  under 
^g^^-g  ..  such  a  clause.     Van  Vleck  v.  "White, 

192  Stansfield  v.  Borough  of  Ports-  66  App.  Div.  14,  72  N.  Y.  Supp.  1026. 
mouth,  4  C.  B.  (N.  S.)  120;  Caper-  But  a  right  of  removal  "at  any 
ton  V.  Stege,  91  Ky.  351,  15  S.  W.  time"  was  held  to  continue  a  reas- 
870  16  S.  W.  84;  Davidson  v.  Crump  onable  time  after  enforcement  of  for- 
Mfg.  Co.,  99  Mich.  501,  58  N.  W.  475;  feiture  for  nonpayment  of  rent. 
Bodwell'  Water  Power  Co.  v.  Old  Gartland  v.  Hickman,  56  W.  Va.  75, 
Town  Elec.  Co.,  96  Me.  117,  51  Atl.    49  S.  E.  14,  67  L.  R.  A.  694. 

802;  Smith  v.  Park,  31  Minn.  70,  16  A  vote  of  the  directors  of  a  les- 
N.  W.  4P0;  Kuhlmann  v.  Meier.  7  Mo.  see  corporation  to  "sell  out"  was  held 
App.    260;    Cheatham    v.    Plinke,    1    not  to  be  a  "discontinuance"    with- 


§  243  GRANTS  OP  RIGHT  OF  REMOVAL.  1QQ5 

Regarding  articles  annexed  under  a  stipnlafi  for  removal 
as  remaining  personalty,  and  so  as  not  a  part  of  the  land,  a  for- 
feiture of  the  leasehold  interest  in  the  land  will  not  deprive  the 
tenant  of  the  right  of  removal.i^s  unless  there  is  an  express  stipu- 
latioji  that  it  shall  have  that  effect,  or  unless  such  forfeiture 
brings  the  ease  within  the  terms  of  a  stipulation  as  to  the  time 
of  removal. 

The  rule,  before  referred  to,!^'^  that  the  making  of  a  new  lease 
will  destroy  the  tenant's  right  of  removal,  is  of  doubtful  applica- 
tion, it  would  seem,  when  this  right  is  based  on  an  express  stipu- 
lation, since  viewing  the  article  as  retaining  its  character  of  per- 
sonalty belonging  to  the  tenant,  it  would  seem  not  to  be  subject 
to  the  operation  of  the  new  lease,i9s  and,  moreover,  the  lessee's 
continuance  in  possession  by  the  owner's  permission  would 
ordinarily  be  presumed  to  be  on  the  same  terms  as  the 
original  holding,  except  in  so  far  as  there  is  an  express  provisicn 
to  the  contrary,i99  and  consequently  he  would  still  have  the 
benefit  of  the  provision  for  removal.200  There  are,  however,  de- 
cisions to  the  effect  that,  if  the  lease   is   renewed,   the  tenant 

in  a  provision  that  the  lessee  should  case   of   fixtures    removable  because 

have  a  year  after  "discontinuing  and  intended     for     trade     purposes.     In 

abandoning    said    business"    vvithin  O'Brien  v.   Mueller,   96   Md.    134,   53 

which  to  remove  buildings.     Water-  Atl.  663,  it  was  held  that  where  the 

man  v.  Clark,  58  Vt.  601,  2  Atl.  578.  landlord  sold  to  the  tenant  the  fix- 

196  Ex  parte  Gould,  13  Q.  B.  Div.  tures  on  the  premises  at  the  time  of 
454;  Scarth  v.  Ontario  Power  &  Flat  the  lease,  agreeing  that  the  latter 
Co.,  24  Ont.  446.  should  have  the  right  to  remove  them, 

197  See  ante,  §  242  g.  a  subsequent  renewal  of  the  lease  did 
19S  It  is  so  decided  in  McCarthy  v.    not  affect  this  right  of  removal,  the 

Trumacher,  108  Iowa,  2S4,  78  N.  W.  court  apparently  considering  'that 
1104,  75  Am.  St.  Rep.  254,  and  Wright  they  were  not  a  part  of  the  realty 
V.  Macdonnell,  88  Tex.  140,  30  S.  and  that  consequently  the  renewal 
W.  907,  and  Hertzberg  v.  Witte,  could  not  affect  the  right  of  removal 
22  Tex.  Civ.  App.  320,  54  S.  W.  921,  199  See  ante,  §  210  e. 
tend  to  support  this  view.  In  Kerr  200  To  this  effect,  apparently,  are 
v.  Kingsbury,  39  Mich.  150,  33  Am.  Clarke  v.  Rowland,  85  N.  Y.  '204; 
Rep.  362,  the  articles  were  removable  Neiswanger  v.  Squier,  73  Mo.  192. 
by  agreement,  but  the  opinion  of  So  where  the  extension  was  expres^ 
Cooley,  J.,  lays  no  weight  on  this,  ]y  subject  to  the  same  terms  and 
and  does  not  suggest  the  possibility  conditions.  Young  v.  Consolidated 
that  the  rule  in  such  case  may  be  Imp.  Co.,  23  Utah,  586,  65  Pac.  720. 
different  from  that  applicable  in  the 


1606  FIXTURES.  §  244 

loses  the  benefit  of  a  provision  in  the  former  lease  authorizing 
the  removal  of  fixtures.^*^^ 

As  in  the  case  when  articles  are  removable  because  affixed  for 
purposes  of  trade,202  if  the  landlord  prevents  the  removal  at  the 
end  of  the  term,  or  induces  the  tenant,  by  act  or  word,  not  to 
remove  them,  this  is  to  be  considered  in  determining  the  time 
within  which  the  removal  may  be  made,203  conceding  that  there 
is  any  limitation  in  this  regard. 

§  244.     Stipulations  restricting  rights  of  removal. 

a.  General  considerations.  In  discussing  stipulations  grant- 
ing rights  of  removal,  it  was  stated  that  such  a  stipulation  ordi- 
narily displaces  the  common-law  rules  as  to  the  right  of  removal, 
so  that  the  effect  thereof  may  be  to  limit  the  right  which  the  ten- 
ant would  have  in  the  absence  of  any  stipulation.  So  regarded, 
a  stipulation  in  terms  granting  rights  of  removal  is  not  infre- 
quently of  such  character  that  it  might  be  also  classed  under  the 
head  of  stipulations  restricting  such  rights.  In  addition,  how- 
ever, to  such  stipulations,  which  in  form  undertake  to  grant  rights 
of  removal,  though  their  actual  effect  may  be  to  narrow  such 
rights,  clauses  are  quite  frequently  introduced  which  in  terms  de- 
prive the  tenant  of  the  right  to  remove  annexations  made  by 
him.  Such  a  clause,  it  has  been  said,  should  be  strictly  con- 
strued.2<^4 

The  mere  fact  that  the  lessee  has  covenanted  to  repair  the 
premises  or  the  buildings  and  erections  thereon,  or  to  yield  them 

201  Unz  V.  Price's  Adm'r,  22  Ky.  alterations,  he  agreeing  to  restore 
Law  Rep.  791,  58  S.  W.  705;  Hayes  v.  the  building  to  its  "present"  condi- 
Shultz  33  Misc.  137,  68  N.  Y.  tion,  but  the  decision  seems  to  be 
Supp.  340-  Talbot  v.  Cruger,  151  N.  independent  of  these  provisions. 
y  117,  45  N.  E.  364;  Nieland  v.  202  See  ante,  §  242  f. 
Mahnk'en,  89  App.  Div.  4G3,  85  N.  203  Chalifoux  v.  Potter,  113  Ala. 
Y.  Supp.  809.  In  Stephens  v.  Ely,  215,  21  So.  322;  Cheatham  v.  Plinke, 
162  N.  Y.  79,   56  N.   E.  499,   it  was    1  Tenn.  Ch.  576. 

held  that  the  right  to  take  advantage  204  Fox  v.  Lynch,  71  N.  J.  Eq.  537, 
of  a  stipulation  for  removal,  entered  64  Atl.  439.  See,  for  the  construc- 
into  after  the  making  of  the  first  tion  of  language  giving  a  right  to 
lease,  was  lost  when  the  lessee  took  remove  improvements  upon  payment 
a  renewal  lease.  The  latter  lease  therefor  as  precluding  removal  with- 
provided  that  the  lessee  should  re-  out  such  payment,  Bro^Ti  v.  Ward, 
turn  the  premises  in  good  condition,  119  Iowa,  604,  93  N.  W.  587. 
and   authorized  the  lessee  to   make 


J  244  STIPULATIONS    RESTRICTING    REMOVAL.  1607 

up  in  repair  at  the  end  of  the  term,  should  not,  it  seems,  preclude 
the  tenant  from  removing  fixtures  which  he  is  otherwise  entitled 
to  remove,  and  there  are  decisions  to  that  effect.205  Such  a  cove- 
nant would  appear  to  be  ordinarily  intended  to  assure  the  return 
of  the  premises  in  the  condition  in  which  they  were  at  the  time 
of  the  lease,  rather  than  to  secure  to  the  landlord  additions  there- 
after made  by  the  tenant.  The  covenant  may,  however,  in  the 
particular  case,  be  susceptible  of  a  different  construction.206 
Tliat  the  removal  would  involve  an  injury  to  the  premises  has 
been  regarded  as  rendering  applicable  a  covenant  to  deliver  up 
the  premises  in  as  good  condition  as  at  the  time  of  the  lease,  so 
as  to  preclude  the  removal.-"^ 

That  the  lessee  is  given  an  option  to  purchase  the  premises  at 
a  price  named  does  not  prevent  the  removal  by  the  tenant  of  fix- 
tures annexed  by  him  which  are  ordinarily  removable,208  though 
if  the  lessee  actually  agrees  to  purchase  the  premises,  and  subse- 
quently annexes  fixtures,  he  is,  it  seems,  to  be  regarded  as  making 
the  annexation  in  the  capacity  of  purchaser  and  not  of  tenant, 
and  has  not  the  right  of  removal.209  And  when  the  lease,  while 
giving  the  lessee  a  right  to  purchase  the  premises  at  a  certain 
price,  provides  that,  should  he  fail  to  do  so,  the  fixtures  shall 
go  to  the  lessor,  the  fact  that  the  lessee  agrees  to  purchase  the 
premises  does  not  entitle  him  to  the  fixtures  if  he  makes  default 
in  payment  of  the  price.^i^* 

That  the  landlord  is,  by  the  terms  of  the  lease,  required  either 
to  grant  an  extension  of  the  term  or  to  take  the  fixtures  at  a 
valuation,  and  that  he  does  grant  the  extension,  does  not,  it  has 
been  decided,  affect  the  right  of  the  tenant  to  remove  the  trade 
fixtures  at  the  end  of  the  extended  term.211     Nor  does  the  fact 

205  Such  is  the  view  asserted  in  Thresher  v.  East  London  Water- 
Brown  V.  Reno  Elec.  Light  &  Power   works  Co.,  2  Barn.  &  C.  608. 

Co ,  55  Fed.  229;  Deeble  v.  McMullen,  207  Murray  v.  Moross,  27  Mich.  203. 

8  i'r.  C.  L.  355';   Mason  v.  Fenn,  13  208  Brown  v.   Reno   Elec.   Light   & 

111    525-    Fox  v'.  Lynch,  71  N.  J.  Eq.  Power  Co.,  55  Fed.  229;  Holbrook  v. 

537    64'Atl.   439.     In  Argles  v.  Mc-  Chamberlin,  116  Mass.  155,  17  Am. 

Math,  23   Ont.  App.  44,  it  is  so   de-  Rep.  146. 

cided  in  reference  to  a  statutory  cov-  209  Perkins  v.  Swank,  43  Miss.  349. 

enant   to   leave  in   repair   "with    all  210  Merritt  v.  Judd,  14  Cal.   59. 

buildings,  erections  and  fixtures."  211  Howe's  Cave  Ass'n  v.  Houck,  66 

206  See  cases  referred  to  in  Ewell,  Hun,  205,  21  N.  Y.  Supp.  40;  Id.,  141 
Fixtures     (2d     Ed.)     233     et     seq.;  N.  Y.  GOG,  36  N.  E.  740. 


1608  FIXTURES.  §  244 

that  the  lessor  has  agreed  to  purchase  the  tenant's  fixtures  have 
that  effect,  it  seems,  if  he  does  not  offer  to  comply  with  the  agree- 
ment.212 

A  pro\asion  that  alterations  and  improvements  should  belong 
to  the  lessor  "at  his  option"  was  held  not  to  require  a  notice  of 
the  exercise  of  the  option  to  be  given  at  the  time  that  the  altera- 
tions and  improvements  were  made,  and  a  notice  to  that  effect 
given  four  weeks  before  the  end  of  the  term  v.^as  regarded  as 
sufficient.-i^ 

b.  Stipulations  as  to  "fixtures."  Sometimes  the  lease  stipu- 
lates that  "fixtures, "214  or  fixtures  of  a  certain  character,^!^ 
annexed  by  the  tenant,  shall  go  to  the  landlord  at  the  expira- 
tion of  the  term.  The  scope  of  the  word  "fixtures,"  as  used  in 
such  a  stipulation,  may  be  limited  by  the  context.  Thus,  in  a 
covenant  by  the  lessee  to  deliver  up  to  the  lessor  at  the  end  of 
the  term  certain  classes  of  articles  named,  "and  other  fixtures 
and  articles  in  the  nature  of  fixtures,  which  should,  at  any  time 
during  the  said  term,  be  fixed  or  fastened  to  the  said  demised 
premises,  or  be  thereto  belonging,"  the  word  was  construed,  by 
reference  to  the  articles  specifically  named,  not  to  include  fixtures 
ordinarily  removable  by  the  tenant.^i**  And  in  a  stipulation  that 
the  tenant  should  not  remove  "any  repairs,  improvements,  addi- 
tions or  fixtures,"  the  word  "fixtures"  was  held  to  apply  only  to 
permanent  ameliorations  such  as  were  covered  by  the  other  words 
used,  and  not  to  include  trade  fixtures.^i'^     The  word  as  used 

212  Pawtucket  Inst,  for  Savings  v.  On  the  authority  of  this  case,  it  was 
Almy,  13  R.  I.  68.  Here  it  was  held  held  in  Sumner  v.  Bromilow,  34  Law 
that  trover  could  be  brought  after  J.  Q.  B.  130,  that  a  covenant  by  the 
the  term  by  a  person  claiming  un-  lessee  to  deliver  up  at  the  end  of 
der  the  tenant,  though  the  machinery  the  term  all  the  "fixed  materials" 
was  to  go  to  the  lessor  at  the  end  in  or  about  the  premises,  save  and 
of  the  term,  he  paying  to  the  lessee  except  "the  salt  pans  and  other  mov- 
the  value  of  any  machinery  added  able  articles,"  bound  him  to  leave 
by   the  latter.  on   the   premises  only   such  fixtures 

213  Isman  v.  Hanscom,  217  Pa.  133,  as  belonged  to  the  landlord  at  the 
6ft  Atl.  329.  time  of  the  lease,  and  not  such  arti- 

•21-i  See   e.   g.,   Watson  v.    Lane,   11  cles    as    a    tenant    is   ordinarily   en- 

Exch.  769.  titled  to  remove. 

215  See  Porter  v.  Drew,  5  C.  P.  Div.  217  Cubbins  v.  Ayres,  72  Tenn.  (4 
143.  Lea)   329. 

216  Bishop  V.  Elliott,  11  Exch.  113. 


§244 


STIPULATIONS    RESTRICTING    REMOVAL. 


1609 


in  such  a  covenant  would  not,  ordinarily  at  least,  include  articles 
not  actually  annexed  to  the  soil.-^^  , 

e.  Stipulations  as  to  "improvements."  A  clause  giving  to  the 
lessor  all  "improvements"  placed  by  the  tenant  on  the  premises 
has  been  regarded  as  including  every  addition,  alteration,  erec- 
tion or  annexation  made  by  the  lessee,  "improvements"  being 
said  to  be  a  more  comprehensive  word  than  " fixtures,  "^i^  In 
England  a  provision  that  the  tenant  shall  yield  up  in  repair,  at 
the  end  of  the  term,  the  premises,  together  with  all  improvements 
and  erections,  has  been  regarded  as  including,  in  the  particular 
case,  a  greenhouse,--'^  a  verandah,--^  and  a  plate  glass  front  sub- 
stituted for  a  shop  window,  though  not  fastened  except  by 
wedges."-^  I3ut  a  covenant  to  yield  up  the  land  "with  all  build- 
ings and  erections  thereon  in  good  repair  and  condition,"  with 


218  Ex  parte  Morrow,  1  Lowell.  385, 
Fed.  Cas.  No.  9,850. 

219  French  v.  City  of  New  York,  16 
How.  Pr.  (N.  Y.)  22U,  29  Barb.  363. 
The  court  further  says:  "Where  tlie 
parties  say  that  all  improvements 
which  may  be  placed  on  the  premises 
shall  belong  to  the  lessors,  it  is  diffi- 
cult to  say  what,  if  anything,  would 
be  excluded,"  and  the  covenant  was 
held  to  cover  a  number  of  things  in 
no  way  annexed.  In  Lesser  v.  Ray- 
ner,  21  Misc.  C66,  47  N.  Y.  Supp.  1102, 
the  language  of  this  case  was  ap- 
proved, and  it  was  held  that  a  stipu- 
lation that  all  "improvements:" 
should  be  delivered  up  to  the  land- 
lord rendered  stalls  and  partitions, 
affixed  iu  sheds  already  on  the  prem- 
ises by  screws  and  cleats,  irremov- 
able by  the  tenant. 

Mining  machinery  was  held  to  be 
Included  in  a  covenant,  in  a  lease 
of  mining  land,  that  the  landlord 
should  have  "improvements  that 
may  be  put  on  the  ground  for  work- 
ing the  lead"  (Merritt  v.  Judd,  11 
Cal.  59),  and  a  covenant  that  the 
tenant  would  leave  the  premises  at 
the  end  of  the  term  in  as  good  con- 


dition "as  they  may  be  made  by 
improvements"  was  held  to  preclude 
the  removal  of  buildings  erected  by 
him  (Carver  v.  Gough,  153  Pa.  225, 
25  Atl.  1124).  A  boiler  in  a  brewery 
was  held  to  be  within  a  clause  pro- 
viding that  "any  alterations  and  im- 
provements"  should  belong  to  the 
landlord  (Agnew  v.  Y/hitney,  10 
rhila.  [Pa.]  77,  30  Leg.  Int.  312); 
and  a  floor  put  in  a  skating  rink  was 
also  regarded  a.s  an  "improvement" 
(Harris  v.  Kelly  [Pa.]  13  Atl.  523). 
In  Isman  v.  Hanscom,  217  Pa.  133, 
66  Atl.  329,  it  was  decided  that  a 
clause,  in  a  lease  for  restaurant  pur- 
poses, giving  the  lessor  "ail  altera- 
tions, additions,  and  improvements," 
"except  movable  furniture,"  gave 
him  dumb  waiters,  wail  decorations, 
ovens,  toilet  rooms,  electric  light  ap- 
paratus, and  inlaid  floors. 

220  West  V.  Blakeway,  2  Man.  & 
G.  729. 

221  Penry  v.  Brown,  2  Starkie,  403 
("erections,  buildings  and  improve- 
ments"). 

222  Haslett  v.  Burt,  18  C.  B.  893 
(ditto). 


2510  FIXTURES.  §  244 

a  proviso  that  the  lessees  ''shall  be  at  liberty  during  their  tenancy 
to  remove  all  such  improvements  *  *  *  as  shall  be  capable 
of  removal  without  injury  to  the  land  itself,"  was  held  to 
allow  the  removal  of  a  brick  building  placed  on  stone  founda- 
tions, these  latter  being  left  undisturbed.223  In  another  juris- 
dictioa,  however,  the  word  was  apparently  regarded'  as  equiva- 
lent to  "fixtures,"  it  being  said  that,  in  order  to  come  within 
such  a  clause,  the  thing  in  question  must  have  been  actually 
annexed  with  an  intention  to  make  it  a  part  of  the  realty.—^  In 
one  case  it  was  regarded  as  not  including  trade  fixtures,  con- 
sisting of  counters  and  the  like  in  an  hotel.-^s  The  word  may 
obviously  be  limited  in  scope  by  the  other  language  of  the  in- 
strument.^-^ 

d.  "Erections"  and  "additions."  It  has  been  held  that  a 
covenant  by  the  lessee  to  deliver  up  at  the  end  of  the  term  "all 
future  erections  or  additions"  to  or  upon  the  premises  did  not 

223  London  &  South  African  Ex-  tached  to  the  huilding.  Parker  v. 
ploration  Co.  v.  De  Beers  Consol.  Wulstein,  48  N.  J.  Eq.  94,  21  Atl. 
Mines  [1895]  App.  Cas.  451.  623,  27  Am.  St.  Rep.  462. 

In  Martyr  v.  Bradley,  9  Bing.  24,  225  Cubbins  v.  Ayres,  72  Tenn.  (4 
it  was  held  that  a  covenant  to  leave,  Lea)  329.  It  was  there  held  that  a 
at  the  end  of  the  term,  the  water  stipulation  against  the  removal  of 
mill  leased,  "with  all  fixtures,  fast-  any  "repairs,  improvements,  addl- 
enings  and  improvements,  during  the  tions  or  fixtures"  did  not  apply  to 
demise,  fixed  fastened  or  set  up  in  or  trade  fixtures  consisting  of  a  bar 
upon  the  premises,"  included  new  room  counter  and  shelving,  office 
mill  stones  set  up  by  the  lessee  dur-  counter,  and  safe,  all  in  a  hotel  on 
ing  the  term.  the  leased  premises. 

224  Ames  V.  Trenton  Brew.  Co.,  58  226  in  Hey  v.  Bruner,  61  Pa.  87, 
N.  J.  Eq.  309,  38  Atl.  858;  Id.,  57  N.  there  v^'as  a  covenant  by  the  lessees 
J  Eq.  347,  45  Atl.  1090  (bar  counter  "to  make  alterations,  additions  and 
and  beer  pump  in  saloon  not  "im-  iniprovements  of  a  permanent  char- 
provements").  In  this  same  state,  acter,"  according  to  certain  specifl- 
however,  it  was  held  that  a  provision  cations,  to  an  amount  named,  and 
that  "all  improvements  of  the  build-  to  introduce  machinery  necessary 
ing"  should  belong  to  the  lessor  in-  for  their  business,  "the  permanent 
eluded  shelves  nailed  to  boards  fast-  additions  and  improvements  to  re- 
ened  to  the  wall  and  resting  on  coun-  main  on  the  premises"  and  "to  De- 
ters not  fastened  to  the  wall  or  floor,  long  to  the"  landlord,  and  it  was 
a  furnace  with  hot  air  flues  extend-  held  that  the  machinery  affixed  by 
ing  to  holes  cut  in  the  floor,  and  the  tenant  did  not  go  to  the  land- 
ownings   over   the    windows,    placed    lord. 

by  the  lessee  on   hooks  already  at- 


§  244  STIPULATIONS    RESTRICTING    REMOVAL.  1611 

preclude  the  removal  of  trade  fixtures,  but  was  to  be  confined 
to  new  buildings  erected,  or  old  buildings  added  to,  during  the 
term.227  And  a  provision  that  any  addition  or  alteration  to  a 
certain  frame  building  on  the  premises  should  belong  to  the  les- 
sor was  construed  as  not  applying  to  a  brick  engine  house,  not 
connected  with  the  building  except  by  belts  and  shafting,  trans- 
mitting power  to  machinery  in  the  building.^ss  g^t  it  has  also 
been  decided  that  a  covenant  by  the  lessee  to  yield  up,  at  the  end 
of  the  term,  all  erections  and  buildings  then  erected  or  built  or 
that  might  thereafter  be  erected  or  built,  included  buildings 
erected  for  purposes  of  trade.229 

•  e.  "Alterations."  Occasionally  the  word  "alterations"  is 
found  in  a  stipulation  of  this  character,  either  by  itself  or  in  con- 
nection with  "improvements,"  or  other  word  of  the  same  gen- 
eral cliaracter.  A  stipulation  against  the  removal  of  alteratioais 
and  improvements  has  been  regarded  as  including  a  boiler  an- 
nexed by  the  tenant  of  a  brewery,23o  and  also  wainscot,  ceil- 
ing and  floors  placed  in  a  saloon.^si 

f.  Stipulated  improvements  by  tsnant.  A  provision  in  the 
lease  that  the  lessee  shall  make  improvements  of  a  certain  char- 
acter is  ordinarily  construed  as  precluding  him  from  removing 
them  at  the  end  of  the  term,  it  being  presumed  that  such  a  pro- 
vision is  intended  to  benefit  the  lessor,  and  no  such  benefit  ac- 
cruing to  him  if  the  improvements  are  removable.^^^ 

227  Holbrook  v.  Chamberlin,  116  that  a  provision  that  the  lessee 
Mass.  115,  17  Am.  Rep.  146.  This  should  not  make  alterations,  with- 
case  was  followed  in  Liebe  v.  Nieo-  out  the  lessor's  consent,  applying  only 
lai,  30  Or.  364,  48  Pac.  172.  And  to  substantial  alterations,  did  not 
see  Cubbins  v.  Ayres,  72  Tenn.  (4  affect  the  right  of  the  tenant  to 
Lea)  329,  ante,  note  225.  remove  as  a  trade  fixture  an  engine 

228  Smith  V.  Whitney,  147  Mass.  substituted  by  him  for  an  old  en- 
479,   18   N.   E.    229.  gine  on  the  premises  at  the  time  of 

229  Naylor  v.  Collinge,  1  Taunt.  19.  the    lease,    the    old    engine    and    the 

230  Agnew    v.    Whitney,    10    Phila.  building  being  left  intact. 

(Pa.)    77,  30  Leg.    Int.   312.  232  Deane  v.  Hutchinson,  40  N.  J. 

231  Center  v.  Everard,  19  Misc.  156,  Eq.  83,  2  Atl.  292;  City  of  New  York 
43  N.  Y.  Supp.  416.  See  also,  as  to  v.  Hamilton  Fire  Ins.  Co.,  23  N.  Y. 
the  construction  of  a  particular  stip-  Super.  Ct.  (10  Bosw.)  537;  City  of 
ulation,  Smith  v.  Whitney,  147  New  York  v.  Brooklyn  Fire  Ins.  Co., 
Mass.  479,  18  N.  E.  229.  41  Barb.   (N.  Y.)  231;  Boyd  v.  Doug- 

In  Andrews  v.  Day  Button  Co.,  132  lass,  72  Vt.  449,  48  Atl.  638,  52  L. 
N.  Y.  348,  30  N.  E.  831,  it  was  held    R.  A.   919;    Pierce  v.  Grice,   92  Va. 


1612 


FIXTURES. 


§  244 


g.  Title  to  articles  during  term.  "Whore  it  is  stipulated  tlsat 
articles,  or  certain  classes  of  articles,  ordinarily  removable  by 
the  tenant,  shall  belong  to  the  landlord  upon  the  expiration  ot 
the  term,  the  latter,  it  seems,  acquires  a  vested  interest  in  sncli 
articles  immediately  on  their  annexation.  So  it  has  been  held  that 
he  has  an  interest  which  he  may  transfer.^s-"'  The  t'^nant  cannot 
remove  such  articles  before  the  expiration  of  the  terra,-''^  nor  can 
he  affect  the  landlord's  rights  by  undertaking  to  transfer  the 
fixtures  to  a  third  person.^'''!^  The  removal  of  tilings  annexed  or 
erected  under  such  a  stipulation  has  occasionally  been  regarded 
as  waste,-"''  but  in  one  ease  it  was  said  that  for  such  a  removal 
the  reuK-dy  is  by  an  action  on  the  contract  rather  than  by  an  ac- 
tion for  waste.-'^^     The  lessee,  it  has  been  decided,  is  under  no 


763,  24  S  E.  392;  Tunis  Lumbor  Co. 
V.  R.  G.  Dennis  Lumber  Co.,  97  Va. 
G82,  34  S.  E.  613.  In  accordance 
with  the  above  rule,  apparently,  is 
Ozark  v.  Adams,  73  Ark.  227,  83  S. 
W.  920,  where  it  was  held  that  one 
who  procured  a  lc:ise  of  land  for 
ninety-one  years  at  a  nominal  rent, 
on  his  undertaking  to  erect  and  op- 
erate a  manufactory  thereon,  could 
not  remove  any  erections  or  annexa- 
tions made  by  him  in  carrying  out 
the  agreement.  The  decision  is, 
however,  in  terms,  on  the  theory 
that  the  circumstances  and  the 
length  of  the  lease  showed  an  inten- 
tion on  his  part  not  to  remove  them. 
It  was  perhaps  on  this  theory  that 
it  was  held  in  Gett  v.  McManus,  47 
Cal.  56,  that  a  brick  house  erected 
by  the  tenant  belonged  to  the  land- 
lord, the  lease  providing  that  the 
tenant  should  pay  for  all  improve- 
ments and  surrender  the  possession 
of  the  premises  at  the  end  of  the 
term. 

233  Thrall  v.   Hill,   110   Mass.    328. 

234  Loeser  v.  Liebmann,  137  N.  Y. 
163,  33  N.  E.  147,  20  L.  R.  A.  752. 
There  it  was  said  that  changes  and 
substitutions  in  good  faith,  in  the 
ordinary  course,  were  permissible. 


235  Podlech  v,  Phelan,  13  Utah. 
333,  44  Pac.  838.  In  Forbes  v.  Wil- 
liams, 46  N.  C.  (1  Jones  Law)  393. 
it  was  held  that  if  the  lessee,  hav- 
ing agreed  not  to  remove  any  build- 
ings until  the  rent  was  paid,  sold  a 
building  to  a  third  person,  and  be- 
fore the  rent  was  paid  such  third 
person  removed  it,  the  latter  was 
liable  to  the  les.=or  in  damages  to 
the  amount  of  the  overdue  rent, 
while  the  lessee  might  be  held  in 
damages  for  the  breach  of  his  cov- 
enant. 

236  Bass  V.  Metropolitan  West  Side 
El.  R.  Co.,  27  C.  C.  A.  147,  82  Fed. 
857,  39  L.  R.  A.  711,  where  an  in- 
junction was  issued  against  waste 
by  the  tenant  in  removing  part  of 
a  building  erected  by  him  under 
such  a  stipulation.  In  Cook  v. 
Champlain  Transp.  Co.,  1  Denio  (N. 
Y.)  91,  it  was  held  that  the  tenant 
could  recover  against  a  third  party 
negligently  injuring  things  so  an- 
nexed by  the  tenant,  since  he,  the 
tenant,  would  be  liable  to  the  land- 
lord as  for  waste  in  not  preventing 
such  injuries  by  the  third  person. 
Ante,  §  110. 

237  Wall  V.  Hinds,  70  Mass.  (4 
Gray)   256,  64  Am.  Dec.  64. 


I  244  STIPULATIOi:S    RESTRICTING    REMOVAL.  1613 

oblii-ation  in  such  a  case  to  replace  the  fixtures,  for  the  benefit 
of  the  landlord,  if  destroyed  by  fire.^^s  Though  the  tenant  is 
precluded  by  his  agreement  from  removing  the  fixture,  he  has 
an  interest  therein  to  the  same  extent  as  in  the  land  itself,  which 
is  the  subject  of  mortgage  by  him.^^a 

If  the  lease  merely  gives  the  fixtures  to  the  landlord  upon  the 
happening  of  a  particular  contingency,-'^  or  merely  a  right  to 
take  them  at  a  valuation  named  or  to  be  named,^'^  he  acquires, 
it  seems,  no  title  thereto  until  the  contingency  happens  or  pay- 
ment is  made. 

Occasionally  the  lease  provides  that  the  fixtures  annexed  by 
the  tenant  shall  become  the  property  of  the  landlord  in  case  the 
tenant  makes  default  in  the  payment  of  rent  or  otherwise.  Sue)' 
a  stipulation  will,  it  seems,  in  case  it  is  conditioned  on  the  non- 
payment of  rent,  be  regarded  in  equity  merely  as  creating  m 
favor  of  the  landlord  a  lien  upon  the  fixtures  for  the  amount  oi" 
the  rent.242 

A  clause  providing  that  if  the  tenant  makes  default  in  certain 
respects  the  landlord  shall  have  the  right  to  re-enter,  and  to  seiz 
the  fixtures  annexed  by  him,  has  been  regarded   as  negativing 
any  right  in  the  tenant  to  remove  the  fixtures  daring  the  term.^'*'^ 

238Cleinson    v.    Trammell.    34    111.  Mont.    160.    27    Pac.    408.     Compare 

App    414.  a°te,  note  212. 

230  French  v.  Proscott,  61  N.  H.  27.  ^42  Rooney  v.  Crary.  8  111.  App.  (8 

240Lemar  v.  Miles.  4  Watts  (Pa.)  Bradw.)    329;    Lewis   v.   Ocean   Nav. 

i.emar  v.  i         .  p.^^  ^^     ^^g  n.  Y.  341.  26  N.  E. 

oof) 

2«Seitzingerv.Marsden.2Penny.  301.  But  at  law.  the  landlord  is  en 
(Pa)  463.  But  it  was  held  that,  titled  to  take  possession  of  the  fix- 
Ih" re    the    lease    provided    that    a    tures     upon      he     tenants     default. 

.     T.  ^^r.^  H,r  +vio  iocQP«   Stamps  V.  Cooley,  91  N.  C.  316. 

hull  dine  to  be  erected  by  the  lesse'?  .   .      ,         , 

Should  remain  on  the  land,  the  lessor  That  the  lease  contaxned  a  clause 
payin<^  the  cost  of  the  materials,  and  mortgaging  all  bmldmgs  to  be  erec  - 
the  lease  also  provided  for  a  forfel  -  ^^^  ^^^^^  ^^^^^  ^^^  ^^^  ^^^  ^^^ 
ure  of  the  term  on  a  default  in  rent.  ^^^.^^.^^^  ^^^^,^^  ^^  tl,^  leg.ee  had 
the  building  became  a  part  of  the  ^^^  transferred  by  the  lessee  to  a 
realty  and  could  not,  after  a  default,  ^^.^^  person,  the  lessor  renewed  tht= 
be  levied  upon  as  personalty  be-  mortgage,  was  held  to  estop  the  lat- 
longing  to  the  lessee,  although  the  ^gj.  f^om  claiming  the  buildings, 
materials  had  not  been  paid  for  by  piatto  v.  Gettleman,  85  Wis.  105.  55 
the    lessor,    rent    being    due    to    an    n.  W.  167. 

amount  exceeding  the  value  of  the  243  Dumergue  v.  Rumsey,  2  Hurl, 
materials.       Switzer     v.     Allen,     11    &  C.  777. 


2614  FIXTURES.  §  245 

§  245.    Custom  afFccting  rights  of  removal. 

The  rights  of  a  tenant  under  a  lease  as  to  the  removal  of 
articles  and  structures  annexed  by  him  may  be  controlled  by  a 
local  custom  in  this  regard.2**  This  can  occur,  however,  only 
in  the  absence  of  an  express  agreement  bearing  on  the  subject.^^* 

§  246.    Rights  of  removal  as  against  person  other  than  lessor. 

a.  Purchaser  subsequent  to  annexation.  The  right  to  remove 
a  trade  fixture  may  be  asserted  as  against  a  transferee  of  the 
reversion,  taking  with  knowledge  that  the  fixture  was  annexed 
by  the  tenant,'-'-'"  and  the  tenant  has  likewise  been  regarded  as 
entitled  to  assert  a  right  of  removal  under  a  stipulation  of  the 
lease,  as  against  such  a  sub.sequent  purchaser,  taking  with  notice 
of  the  stipulation.247  The  cases  to  the  above  effect,  in  stating 
that  the  tenant  has  a  right  of  removal  as  against  a  subsequent 
purcha,ser  with  notice  of  the  tenant's  rights,  would  seem  to  imply 
that  he  has  no  such  right  as  against  a  purcha.ser  without  notice. 
In  a  few  states  it  is  apparently  the  law  that  where,  by  agreement, 
one  has  the  right  to  remove  articles  annexed  by  him  to  another's 
land,  he  may  exercise  such  right  as  against  a  purchaser  of  the 
land  even  though  the  latter  is  without  notice  of  the  agreement,^^^ 
and  presumably,  in  those  states,  the  right  of  a  tenant  under  a  lease 
to  remove  fixtures,  as  against  a  purchaser  of  the  land,  would  be 
independent  of  the  question  of  notice.^^a     But  conceding  that,  as 

244  Van  Ness  v.  Pacard,  27  U.  S.  247  First  Nat.  Bank  v.  Adam,  138 
(2  Pet.)  137;  Merritt  v.  Judd,  14  111.  483,  28  N.  E.  955;  Adams  v. 
Cal.  59;  Hanrahan  v.  O'Reilly,  102  Tully.  164  Ind.  292,  73  N.  E.  595; 
Mass.  201;  Weathersby  v.  Sleeper,  42  Wilgvis  v.  Gettings,  21  Iowa,  177; 
Miss  732,  2  Am.  Rep.  649;  Thomas  Jones  v.  Cooley,  106  Iowa,  165,  76 
V.  Davis,  76  Mo.  72,  43  Am.  Rep.  N.  W.  652;  Morris  v.  French,  106 
756-  Teaff  v.  Hewitt,  1  Ohio  St.  511.  Mass.  326;  Dubois  v.  Kelly,  10  Barb. 
59  Am.  Dec.  634;  Keogh  v.  Daniell,  (N.  Y.)  496;  Hertzberg  v.  Witte,  22 
12  Wis.  163;  Davis  v.  Jones,  2  Barn.  Tex.  Civ.  App.  320.  54  S.  W.  921. 

&  Aid.  165;   Culling  v.  Tuffnal,  Bui-       248  See  cases  referred  to  in  Bron- 
ler's    Nisi    Prius.    34.  son,  Fixtures,   158;    13   Am.   &   Eng. 

245  Martyr  v.  Bradley.  9  Bing.  24;    Enc.  Law,  628,  C29. 

Boyd  V.   Shorrock,  L.   R.    5   Eq.   72;  249  Globe     Marble     Mills     Co.     v. 

Roxburghe    v.     Roberton,     2     Bligh,  Quinn,    76    N.    Y.    23,    32    Am.    Rep. 

156-  notes  to  Wigglesworth  v.  Dalli-  259,  is  apparently  to  this  effect.     See 

Fon'  1  Smith's  Leading  Cases   (11th  the  cases  stated  post,  note  254.     And 

Ed.)   545.  s^®'  ^1^°'  Hanrahan  v.  O'Reilly,  102 

246  Davis   V.   Bnffum,   51  .Me.   160;  Mass.   201,   post,  note  251. 
Wing  V.  Gray,  36  Vt.  26L 


§246 


REMOVAL  AS  AGAINST  THIRD  PERSON. 


1615 


has  occasionally  been  expressly  decided,  a  purchaser  should  not  be 
affected  by  a  right  of  removal  in  a  tenant  which  is  unknown  to 
him,25o  it  seems  that  in  almost  every  case  the  purchaser  should 
be  regarded  as  chargeable,  by  the  fact  of  the  latter 's  possession 
of  the  land,  with  notice  of  his  rights  in  this  regard  as  well  as 
of  the  character  and  duration  of  the  lease.  That  is,  a  purchaser 
of  land  in  the  possession  of  a  tenant  should  be  required  to  ascer- 
tain, by  inquiry  of  the  tenant  or  otherwise,  whether  the  improve- 
ments thereon  are  subject  to  a  right  of  removal  in  the  tenant. 
Otherwise,  the  tenant's  common-law  right  to  remove  trade  or 
ornamental  fixtures  would  be  of  a  most  precarious  character,  as 
being  subject  to  annulment  at  any  time,  without  his  consent,  by 

250  To  this  effect  is  Landon  v.  Piatt,    cised  against  the  lessee's  transferee. 

34  Conn.   517;    Dostal  v.   McCaddon,    In   Smyth  v.  Stoddard,  203    111.  424, 

35  Iowa,  318;  Canadian  Bank  of  67  N.  E.  980,  supra,  the  lease  pro- 
Commerce  V.  Lewis,  12  B.  C.  398.  vided  that  the  lessee  should  have  the 
In  Trask  v.  Little,  182  Mass.  8,  64  N.  right  to  remove  erections  at  the  end 
E.  206,  it  was  decided  that  a  sub-  of  the  term  or  receive  compensation 
sequent  lessee,  taking  without  no-  therefor,  and  it  was  held  that  a  sale 
tice  of  an  oral  agreement  by  the  of  the  land  by  the  lessor  without 
owner  allowing  a  prior  lessee  to  re-  excepting  the  erections  involved  a 
move  his  fixtures,  could  maintain  conversion  of  the  barn,  entitling  tho 
an  injunction  against  removal  un-  lessee  to  recover  the  value  thereof 
der  such  agreement.  In  this  case  from  the  lessor.  The  same  result 
the  first  lessee  had  relinquished  pos-  might  perhaps  have  been  attained 
session  before  the  second  lease  was  by  re':'arding  the  sale  as  an  election 
made,  and  so  the  latter  could  not  to  pay  compensation  rather  than  to 
have  been  charged  with  notice  from  allow  removal,  making  the  lessor 
possession,  but  the  court  does  not  liable  for  the  value.  Adopting  the 
refer  to  this.  That  the  tenant  loses  theory  that  an  article  removable  by 
the  right  of  removal  as  against  a  agreement  is  personalty  (ante,  at 
purchaser  without  notice  is  appar-  note  174),  the  sale  of  the  land  would 
ently  assumed  in  occasional  deci-  seem  not  to  transfer  the  erection, 
sions  that  a  conveyance  by  the  les-  but  to  leave  the  title  thereto  un- 
sor,  without  excepting  the  fixtures,    changed. 

constitutes  a  conversion   of  the   fix-       In  Union     Cent.  Life  Ins.  Co.    v. 

tures    as    against    the    tenant.     See  Tillery,  152   Mo.   421,  54   S.  W.   220, 

Bircher     v.     Parker,     43     Mo.     443;  75    Am.    St.    Rep.    480,   it    was   held 

Smyth   v.  Stoddard,  203  111.  424,  67  that,  as  against  a  purchaser  under  a 

N.    E.    980,    96    Am.    St.    Rep.    314.  deed  of  trust  given  by  the  landlord 

That    such    a    conveyance    does    not  to  secure  a  debt,  an  article  annexed 

constitute  a  conversion  is  well  stat-  by   the   tenant   subsequently   to    the 

ed  in  Davis  v.  Buffum,  51  Me.  160;  making  of  such  deed,  under  a  stip- 

Walsh  V.   Sichler,   20  Mo.  App.   374,  ulation   allowing  its   removal,   could 

and  to  that  effect  are  the  cnse;^   in  not  be  removed,  the  purchaser  hav- 

which  it  is  assumed  or  decided  that  ing    taken    without    notice    of    the 

the  right  of  removal   may  be   exer-  agreement. 


1616 


FIXTURES. 


§246 


the  making  of  a  conveyance  by  the  landlord  to  one  without 
actual  notice  of  the  tenant's  rights.^^^ 

The  tenant  will  no  doubt  lose  his  right  of  removal,  as  against 
the  lessor's  transferee,  by  reason  of  any  lapse  of  time  or  other 
circumstances,  which  would  have  deprived  him  of  the  right  had 
the  reversion  remained  in  the  original  lessor.-^^ 

b.  Person  claiming  under  mortgage  subsequent  to  annexation. 
As  against  one  to  whom  a  mortgage  of  the  reversion  is  made  after 
the  tenant's  annexation  of  the  article  in  question,  the  tenant  has, 
it  seems  clear,  the  same  right  of  removal  as  he  would  have  against 
a  subsequent  purchaser,  that  is,  he  can  remove  the  article,  pro- 


2B1  This  view   is   stated   by   Aldis, 
J.,  in  Wing  v.  Gray,  36  Vt.  261,  as 
iollows:     "His    (the    tenant's)     pos- 
session  was   notice   to   the   plaintiff 
(the  purchaser)  so  as  to  put  him  on 
inquiry    as   to    the    right   by    which 
the  defendant  possessed  and  his  re- 
lation to  the  grantor;  and  the  plain- 
tiff must  be   deemed  to  be   affected 
with    knowledge    of    the    facts    he 
would    have    ascertained    upon     In- 
quiry,   that   is,    that   the    defendant 
was   a-tenant   having   the   right   to 
carry  on  the  farm  for  a  year.     This 
right  he  was  not  bound  to  put  on 
the    record,    and    his    landlord    by 
selling  the  land  could  not  defeat  any 
rights   he   had   as   tenant.     The    de- 
fendant was  not  bound  to  know  of, 
or  search   the  records  for,  a  subse- 
quent conveyance  from  his  landlord 
to  a  third  person,  or  to  omit  the  ex- 
ercise of  any  right  granted  by  the 
lease    because    the    landlord    might 
thereafter   sell   the   farm.     A   subse- 
quent grantee  would   take  the  land 
subject  to  the  rights  of  the  tenant 
under     the     lease.     The     lease     so 
far    as    it    went    was    as    operative 
as    the    subsequent    deed,    and    be- 
ing prior  in  time  and  accompanied 
by  possession,   all  the  tenant's  rights 
as    against    the   landlord   continued 
as   against   his   landlord's    grantee." 


The  same  view  is  adopted  in  Royce 
v.  Latshaw,  15  Colo.  App.  420,  62 
Pac.  627  (see  post,  note  253),  and 
to  some  extent,  apparently,  in  Du- 
bois v.  Kelly,  10  Barb.  (N.  Y.)  496. 
In  Hanrahan  v.  O'Reilly,  102  Mass. 
201,  the  tenant  was  allowed  to  re- 
move trade  fixtures  as  against  his 
landlord's  transferee,  and  it  was 
apparently  regarded  as  immaterial 
that  the  transferee  had  no  actual 
notice  of  the  tenant's  rights.  The 
view  that  the  tenant's  possession  is 
constructive  notice  of  his  rights  as 
to  fixtures  is,  however,  perhaps,  op- 
posed to  Prince  v.  Case,  10  Conn. 
375,  27  Am.  Dec.  675,  and  the  earlier 
Vermont  case  of  Powers  v.  Denni- 
son,  30  Vt.  752,  holding  that  the  pos- 
session of  one  who  has  built  on  an- 
other's land  with  an  express  agree- 
ment for  the  right  of  removal  is  not 
notice  to  a  purchaser  of  the  land  In 
regard   to   his   rights. 

2"'-  Bliss  V.  Whitney,  91  Mass.  (9  Al- 
len) 114,  85  Am.  Dec.  745.  In  Davis 
V.  Carsley  Mfg.  Co.,  112  111.  App.  112, 
it  was  held  that  one  claiming  under 
a  contract  of  purchase  from  the  les- 
sor, though  a  conveyance  had  not 
been  made  to  him,  could  restrain  by 
injunction  a  removal  by  a  tenant 
who  had  lost  the  right  by  taking  a 
new  lease. 


§  246  REMOVAL  AS  AGAINST  THIRD  PERSON.  1617 

vided  the  mortgagee  took  with  notice,  actual  or  constructive,  of 
the  tenant's  rights  in  this  regardv^^s  And  he  would,  as  against 
one  claiming  under  a  sale  at  foreclosure  of  the  mortgage,  have 
the  same  rights,  no  doubt,  as  against  the  mortgagee  himself.^^^ 

c.  Person  claiming  under  mortgage  prior  to  annexation.  The 
question  of  the  right  of  the  tenant  to  remove  a  fixture,  as  against 
a  mortgage  made  by  the  owner  of  the  land  prior  to  the  annexa- 
tion, may  arise  under  two  distinct  states  of  fact,  that  is,  the  lease 
under  which  the  tenant  holds  may  have  been  made  before,  or 
it  may  have  been  made  after,  the  mortgage.  When  the  lease  was 
made  before  the  mortgage,  it  seems  that  the  tenant's  riabts  of 
removal,  whether  existing  ])y  reason  of  a  stipulation  to  that  effect, 
or  by  reason  of  the  character  of  the  article  annexed,  as  being 
either  a  trade,  ornamental,  or  agricultural  fixture,  cannot  be 
affected  by  the  fact  that  the  landlord  has  chosen  subsequently 
to  make  a  mortgage  on  the  land.  One  who  takes  a  mortgage 
takes  it  subject  to  any  outstanding  lease  of  which  he  has  actual 
or  constructive  notice,^^^  ^^^  gQ^  it  seems,  he  must  take  it  subject 
to  any  existing  stipulations  for  removal  which  appear  in  the  lease 
itself,  and  also  subject  to  the  recognized  right  of  a  tenant  to 
annex    and    remove  at    pleasure    certain    classes    of    articles.^^o 

253  In  Royce  v.  Latshaw,  15  Colo,  of  the  tenant's  rights,  but  no  ref- 
App.  420,  02  Pac.  627,  it  is  said  that  crence  to  the  question  of  notice  Is 
it  is  immaterial  whether  the  mort-  marie  in  the  opinion.  In  New  York, 
gagee  had  notice  that  the  article  was  apparently,  a  subsequent  purchaser 
a  trade  fixture,  since  he  could  not  or  mortgagee  of  land  takes  subject 
acquire  any  interest  other  than  what  to  a  right  of  removal  by  agreement 
the  mcrt,fi:agor  had,  and  "beside?,  in  a  third  person,  irrespective  of 
the  very  character  of  the  structure,  notice  (Mott  v.  Palmer,  1  N.  Y.  [1 
and  of  the  business  carried  on  there  Comst.]  564,  49  Am.  Dec.  359;  Ford 
in,  were  sufficient  to  put  him  on  v.  Cobb,  20  N.  Y.  344;  Godard  v. 
inquiry."  Gould,  14  Barb.   [N.  Y.]   662;   Kerby 

254  Bartlett  v.  Haviland,  92  Mich.  v.  Clapp,  15  App.  Div.  37,  44  N.  Y. 
552,  52  N.  W.  1008,  is  apparently  to  Supp.  116),  and  the  case  referred  to 
this  effect.    In  Globe  Marble  Mills  Co.  seems  to  accord  with  this  view. 

V.  Quinn.  76  N.  Y.  23,  32  Am.  Rep.  2Rr.  See  ante,  §  146  a,  at  notes  1-5. 
259,  it  was  held  that,  as  against  one  25«  In  Union  Terminal  Co.  v.  Wil- 
purchasing  at  foreclosure  of  a  mort-  mar  &  S.  F.  R.  Co.,  116  Iowa,  392, 
gage  by  the  landlord,  made  after  the  90  N.  W.  92,  it  was  held  that  a  re- 
annexation,  the  tenant  could  assert  ceiver  who  rebuilt  a  trade  fixture 
his  right  of  removal  as  if  against  with  the  proceeds  of  insurance,  up- 
the  lessor.  It  is  stated  that,  at  the  on  its  destruction  by  fire,  could  re- 
foreclosure    sale,    notice    was    given  move  it  as  against  one  claiming  un- 

L.  and  Ten.  102. 


1618  FIXTURES.  §  246 

Otherwise  a  tenant,  after  taking  a  lease  with  the  expectation  of 
placing  removable  fixtures  thereon,  could  be  at  any  time  deprived 
of  the  right  so  to  do  by  the  making  of  a  mortgage  by  the  lessor. 
The  mortgagee  should  not,  however,  it  seems,  be  affected  by  any 
stipulation  as  to  removal  made  after  the  taking  of  his  mortgage. 

In  case  the  lease  was  made  after  the  mortgage,  the  question 
whether  the  tenant  annexing  an  article  should  be  allowed  to  re- 
move it  as  agai.ust  the  mortgagee  might,  it  seems,  depend  to  some 
extent  on  the  legal  character  of  a  mortgage  in  that  jurisdiction. 
If  the  mortgage  constitutes  merely  a  lien,  the  mortgagor,  retain- 
ing the  legal  title,  has  the  right  to  make  a  lease,  which  Is  valid 
as  against  the  mortgagee,  in  so  far  as  it  does  .not  affect  his  secur- 
ity, and  a  tenant  holding  under  the  lease  would  have  the  same 
right  to  annex  and  remove  fixtures  as  if  no  mortgage  had  been 
given,  provided  only  that  their  removal  does  not  render  the  prem- 
ises less  valuable  as  a  security  than  they  were  at  the  date  of  the 
mortgage. -^^  But  this  view,  that  if  the  mortgage  creates  merely 
a  lien  the  mortgagor's  tenant  has  the  right  of  removal,  is  not  in 
accord  with  a  number  of  decisions,  rendered  in  states  where  such 
is  the  effect  of  a  mortgage,  that  a  mortgagor  cannot  remove  arti- 
cles annexed  by  himself, ^-^^  since,  it  would  seem,  the  mortgagor's 

der   a   mortgage   subsequent   to    the   other  person   to  annex   and    remove 
lease.  fixtures  as  again?t  a  prior  mortgagee 

257  In  Pioneer  Sav.  &  Loan  Co.  v.  of  the  land,  would  seem  to  be  ad- 
Fuller,  57  Minn.  60,  58  N.  W.  831,  it  verse  to  his  right  to  enable  a  tenant 
was  held  that  the  mortgagor  might,  to  do  so,  although  in  that  state  a 
during  the  year  of  redemption  after  mortgagee  has  merely  a  lien.  Com- 
foreclosure,  agree  with  his  lessee  pare  Sprague  Nat.  Bank  v.  Erie  R. 
that  an  article  to  be  atfixed  by  the  Co.,  22  App.  Div.  526,  48  N.  Y.  Supp. 
latter  might  be  removed  by  him.  65;  Bernheimer  v.  Adams,  70  App. 
The  lease  was  subsequent  to  the  Div.  114,  75  N.  Y.  Supp.  93,  to  the 
mortgage,  and  indeed  subsequent  to  effect  that  the  mortgagor's  tenant 
the  foreclosure  sale,  but  the  court  has  the  right  of  removal, 
makes  no  reference  to  this  fact.  In  25s  gee  e.  g.,  Seedhouse  v.  Brow- 
Ferris  V.  Quimby,  41  Mich.  202,  2  ard,  34  Fla.  509,  16  So.  425;  Cun- 
N.  W.  9,  the  tenant's  right  to  re-  ningham  v.  Cureton,  96  Ga.  489,  23 
move  an  article  as  against  a  subse-  S.  E.  420;  Bowen  v.  Wood,  35  Ind. 
quent  mortgagee  seems  to  be  based  268;  Ottumwa  Woolen  Mill  Co.  v. 
on  the  theory  that  in  that  case  the  Hawley,  44  Iowa,  57,  24  Am.  Rep. 
article  did  not  become  part  of  the  719;  Mutual  Ben.  Life  Ins.  Co.  v. 
realty.  The  decision  in  McFadden  Huntington,  57  Kan.  744,  48  Pac.  19; 
v.  Allen,  134  N.  Y.  489,  32  N.  E.  21,  Dutro  v.  Kennedy,  9  Mont.  101,  22 
19  L.  R.  A.  446,  to  the  effect  that  Pac.  763. 
a    mortgagor    cannot   authorize   an- 


§  246  REMOVAL  AS  AGAINST  THIRD  PERSON.  1619 

tenant  can  have  no  greater  rights  as  to  removal  than  the  mort- 


gagor 


Conceding  that  a  tenant  holding  under  a  lease  made  by  the 
mortgagor   may,  in  jurisdictions  where  the  mortgagee  has  a  hen 
only   remove  articles  annexed  by  him  so  long  as  his  right  ot  pos- 
sessi'on  continues,  the  question  arises  of  the  effect  of  a    orec  osure 
of  the  mortgage  upon  this  right  of  removal.     Since  a  foreclosure 
sale  vests  the  title  to  the  premises  in  the  purchaser  as  of  the  date 
of  the  mortgage,  free  from  the  operation   of  any  conveyances 
made    or   incumbrances  imposed   by    the   mortgagor   after   that 
date  250  any  rights  by  reason  of  a  subsequent  lease  would  seem 
immediately  to  become  nonexistent  as  to  him,  and  among  such 
ri-hts  would  be  the  tenant's  right  to  remove  fixtures.     As  regards 
th';  subsequent  lessee,  the  purchaser  at   foreclosure  acquirers  a 
paramount  title,  and  the  tenant  has  no  more  rights  as  against  him 
than  as  n<-ainst  anv  other  holder  of  a  paramount  title. 

In  jurisdictions  where  the  common-law  conception  of  a  mort- 
gac^e  as  a  convevance  of  the  legal  title  to  the  mortgagee  is  still 
ret'lined,  a  subsequent  lease  by  the  mortgagor  is  a  nullity  as 
against  the  mortgagee,2ci  and  consequently  it  would  seem  ques- 
tionable whether  the  mortgagor  could,  by  making  a  lease,  enable 
another  to  annex  and  remove  articles  as  against  the  mortgagee. 
The  view  that  he  cannot  do  so  would  seem  to  be  necessarily 
adopted  in  those  jurisdictions  in  which  tlie  courts  hold  that  a 
mortgagor  of  land  has  no  power,  though  remaining  in  possession, 
to  make  an  agreement  with  a  third  person,  such  as  the  vendor 
of  a  chattel,  by  which  a  chattel  annexed  shall  remain  the  property 
of  such  person.2«2     in  one  of  such    jurisdictions  it  has  accord- 

2.0  2  Jones.  Mortgages.  |  1654.  32  N.  E.  21,  19  L.  R.  A.  446.  supra. 

260  See  ante.  §  73  c.     But  there  are   note  257. 

,     .  . „  i„  tvie  Tsjpw  York  in-       26i  See  ante.  §  16  o. 

«..t   th^t    ac?   against   a   purchaser   Bay  State   Iron   Co.,   97   Mass.   z/3. 
f    .Closure    "e  .enant   uo.er  a  "-sher  v   Hayes^l5^  Mass   .2S  ^5 

?"  R  CO  4  APP  Div.  526.  48  N.  Warren  Co.  v.  Barter,  110  Wis.  80, 
f  Lpp  65-'Bet:.  elmer  v.  Adams.  85  N.  W.  698.  53  U  R.  A.  60.  84  Am. 
I  fpp  Dit  114.  75  N.  Y.  Supp.  93.  St.  Rep.  867,  and  Eng  and  (see 
"■hete  ca=es  appear  inconsistent  with  cases  cited  intra,  note  264).  This 
McFadSnv    AUen,  134   N.  Y.   489,    view  is  apparently  adopted  In  New 


1G20  FIXTURES.  §  246 

in^ly  been  held  that  the  mortgagee's  rights  are  superior  to  those 
of  a  subsequent  lessee  annexing  a  trade  fixture, -'^•^  though  in 
another  there  is  a  contrary  decision."*^* 

In  those  jurisdictions  in  which,  though  a  mortgagee  has  the 
legal  title,  an  agreement  by  the  mortgagor  with  a  third  person, 
upon  the  annexation  of  a  chattel,  that  he  may  remove  it,  is  re- 
garded as  effective  as  against  the  mortgagee,-^^  a  mortgagor 
might  perhaps  be  regarded  as  empowered  to  confer  on  another 
the  same  i)rivilege  of  removing  articles  annexed  by  making  a 
lease  to  such  other.  The  removal  is  no  more  injurious  to  the 
mortgagee  in  the  latter  case  than  in  the  former.  There  are  occa- 
sional decisions  in  accordance  with  this  view,-*^*^  but  it  is  some- 
what difficult  to  reconcile  tliis  position  with  the  numerous  deci- 
sions that  a  mortgagor  cannot  himself  remove  annexations  which 

York,  fhough  there  a  mortgage  ere-  unr!cr  a  mortgage  made  siibsequent 

ates  merely  a  lion.     McFadden  v.  Al-  to  the  lease,  authorize  the  lessee  to 

len,  134  N.  Y.  489,  32  N.  E.  21,  19  L.  remove    fixtures    after    the    latter's 

R.  A.  446.  relinquishm'^nt  of  possession  at  the 

203  Lynde   v.   Rowe,   94   Mass.    (12  end  of  the  term. 

Allen)    100.     It  was  there  said  that  =05  As  in  Alabama  (Warren  v.  Lid- 

"the  mortgagor  cannot  create  a  ten-  dell,  110   Ala.   232,  20   So.  89),  New 

ancy  after  the  execution  of  the  mort-  Jersey   (Campbell  v.  Roddy,  44  N.  J. 

gage,    which    will    be    valid    against  Eq.  244,  14  Atl.  279,  6  Am.  St.  Rep. 

the  mortgagee,  unless  the  mortgagee  SS9),  Pennsylvania   (Hill  v.  Sewald, 

choo?es   to   recognize   the   tenant  as  53   Pa.   271,  91   Am.   Dec.   209),   and 

such."  Vermont    (Davenport   v.   Shants,   43 

204  Sanders  v.  Davis,  15  Q.  B.  DIv.  Vt.  546;  Buzzell  v.  Cummings,  CI  Vt. 
218.     This  case,     although  approved  213.  18  Atl.  93). 

in  Gough  v.  Wood  [1894]  1  Q.  B.  713,  zrg  Broaddus  v.  Smith,  121  Ala. 
seems  clearly  inconsistent  with  the  335,  26  So.  34,  77  Am.  St.  Rep.  61; 
later  cases  of  Hobson  v.  Gorringe  Paine  v.  McDowell,  71  Vt.  28,  41  Atl. 
[1897]  1  Ch.  183,  and  Rej'nolds  v.  1042.  In  Belvin  v.  Raleigh  Paper 
Ashby  [1903]  1  K.  B.  87,  in  which  Co.,  123  N.  C.  138,  31  S.  E.  655,  it 
it  is  held  that  the  mortgagor  has  was  held  that  the  fixtures  were  re- 
no  authority  to  agree  with  a  third  movable  as  against  a  prior  mort- 
person  that  an  article  to  be  annexed  gagee  of  the  land,  even  though  the 
by  him  shall  be  removable,  as  lessee  had  transferred  them  to  the 
against  the  mortgagee  who  there-  mortgagor,  the  latter,  as  a  part  of 
after  enters  into  possession.  In  the  same  transaction,  having  trans- 
Thomas  V.  Jennings,  66  Law  J.  Q.  ferred  them  to  a  trustee  to  secure 
B.  5,  it  was  held  that  the  lessor  payment  to  the  lessee  of  the  pur- 
could   not,   as   against  one   claiming  chase  price. 


„  247  REMOVAL  BY  THIRD  PERSON.  1621 

he  may  make,^^^  since,  if  he  cannot  himself  annex  and  remove 
fixtures,  he  should  not  be  able  to  empower  others  to  do  it. 

§  247.    Rights  of  removal  by  person  other  than  lessee. 

It  appears  never  to  have  been  questioned  that  one  to  whom  the 
leasehold  has  been  assigned  has  the  same  right  as  the  lessee  had 
before  assignment  to  remove  articles  annexed  by  himselt. 

The  ri-ht  to  remove  a  fixture  may  be  exercised  by  one  to  whom 
a  tenantrafter  making  the  annexation,  has  undertaken  to  ti-anster 
the  fixture,  either  absolutely^os  or  by  way  of  mortgage.^e^  And 
so  it  seems,  regarding  a  removable  fixture  as  part  of  the  land, 
one  to  whom  the  leasehold  interest  is  transferred  after  the  annex- 
ation may  remove  the  article  annexed.^To  in  all  such  cases,  how- 
ever though  the  transfer  by  the  lessee  is  nominally  of  the  fixture 
it.el'f  what  is  really  transferred  is,  it  seems,  merely  the  right  ot 
removal  ■'''  That  an  assignment  of  the  leasehold  was  m  violation 
of  a  covenant  of  the  lease  has  been  held  not  to  deprive  the  a^- 
si-nee  of  the  right  to  remove  a  house  erected  by  the  lessee,  such 
co^venant  not  appearing  to  be  intended  to  control  the  sale  of  the 
house,  and  the  assignee  having  paid  a  considerable  sum  for  the 
assigument.2'^2 

A  judt^ment  creditor  of  the  tenant  may,  as  has  been  before 
stated,  exercise  the  right  of  removal  after  levying  upon  the  fix- 
tures as  personalty .2" 

A  creditor,274   or  other  person  claiming  under  the  tenant, 

267  See  cases  cited  Bronson.  Fix-  Towa.  269;  Massachusetts  Nat^  Bank 
tures  §  GO-  13  Am.  &  Eng.  Enc.  v.  Shinn,  18  App.  Div.  276,  46  N.  Y. 
Law." 670.  note  3.  Supp.  329. 

268  Ballon    V.    Jones.    37    111.    95;  .to  See  ante,  at  note  94 
ward  V.  Earl.  86  111.  App.  635;   Os-  -i  See  ante,  at  note  100^ 

good  V.  Howard.  6  Me.    (6  Greenl.)  272  Upton  v.  Hosmer.  70  N.  H.  493. 

459     20    Am.    Dec.    322;    Shapira   v.  49  Atl.  96. 

Barney  30  Minn.  59.  14  N.  W.  270;  273  See  ante,  at  notes  98.  99. 
union  Terminal  Co.  v.  Wilmar  ^  S.  .-  Minshall  v.  ^loyd^  2  Mee  & 
F  R  Co  116  Iowa,  392,  90  N.  W.  W.  450;  Morey  v.  Hoyt,  62  Conn.  542, 
92-  Talbot  V  Whipple,  96  Mass.  (14  26  Atl.  127,  19  L.  R.  A.  611;  Don- 
Allen)  177-  Lanphere  v.  Lowe,  3  newald  v.  Turner  Real  Estate  Co.. 
Neb  131-  Hig^insv.  Ridden,  12  Wis.  44  Mo.  App.  350;  Friedlander  v^ 
^87  78  Am.  Dec.  762;  McMath  v.  Ryder.  30  Neb.  783,  47  N.  W.  3.  9 
Levy.  74  Miss.  450,  21  So.  9,  523.  L.   R.   A.   700;    Thropp's  Appeal,   70 

269  wintermute  v.  Light,  46  Barb.  Pa.  395. 
(N.  Y.)   278;   Denham  V.  Sankey.  38       270  Menger    v.    Ward     (Tex.     Civ. 


1622  FIXTURES.  §  247 

has  ordinarily  no  ri<?ht  of  removal  if  the  tenant  would  not  have 
such  right.  So  it  has  been  held  that  if  the  tenant  would  have  no 
right  of  removal  owing  to  the  expiration  of  the  tenancy,  or  his 
relin(|ui.slmient  of  possession,  one  to  whom  he  has  sold  ^^^  or 
mortgaged  -'^  the  article  would  not  have  such  right.  Such  a 
person  may  likewise  lose  his  right  of  removal  by  the  taking  of  a 
new  lease.-^^ 

One  to  whom  the  right  to  a  removable  fixture  has  been  trans- 
ferred by  sale  or  mortgage  is  not,  it  has  been  decided,  deprived 
of  his  right  of  removal  by  the  fact  that  the  tenant,  after  the  sale 
or  mortgage,  surrenders  his  leasehold  interest  to  the  landlord,^^* 
this  being  in  accord  with  the  recognized  rule  that  a  strajiger  can- 
not be  adversely  affected  by  a  surrender.-***  An  English  judge 
has  decided,  upon  the  analogy  of  those  decisions,  that  the  mort- 
gagee of  a  chattel  was  not  deprived  of  the  right  of  removal  by 
reason  of  a  declaration  of  forfeiture  based  upoji  a  purely  volun- 
tary act  on  the  part  of  the  tenant.^^i 

App.)  28  S.  W.  821  (Article  Intended  53  N.  W.  187.     But  see  In  re  Glasdlr 

by   tenant   not   to  be   removed   held  Coppor  Mines  [1904]  1  Ch.  819,  post, 

not    removable   by   his   mortgagee);  note  281. 

Millpr  V.  Cray.  29  Tex.  Civ.  App.  183,  its  gpe  ante,  at  notes  145-147. 

68    S.    W.    517    (House    which    it    is  270  London  &  Westminster  Loan  & 

agreed    shall    belong    to    the    lessor  Disconnt  Co.  v.  Drake,   6  C.  B.    (N. 

cannot   be    removed   by    the   lessee's  S.)    798;    Saint   v.    Pilley,   L.   R.    10 

transferee).  Exch.   137;    Dobschuetz  v.   HoUiday. 

27C  Marks    v.    Ryan,    63    Cal.    107;  82    111.   371;    Adams    v.    Goddard,   48 

GafTield    v.    Hapgood.    34    Mass.    (17  Me.  212.     And  see  Free  v.  Stuart.  39 

Pick.)    192,    28   Am.    Dec.   290;    Fitz-  Neb.    220.    57    N.    W.    991.     But    Tal- 

gerald  v.  Anderson,  81  Wis.  341.  51  hot  v.  Whipple,  96  Mass.  (14  Allen) 

N.  W.  554.  1"7.  is  to  the  contrary. 

277  Talbot  V.  Whipple,  96  Mass.  (14  In  Thropp's  Appeal,  70  Pa.  395,  It 

Allen)  177;  Smith  v.  Park,  31  Minn,  was   held   that    a   surrender  by   the 

70,  16  N.  W.  490;   Free  v.  Stuart.  39  lessee   for   a   valuable   consideration 

Neb.   220,   57    N.   W.   991;    Fuller   v.  took  effect  as  against  a   prior   levy 

Brownell,  48  Neb.  145,  67  N.  W.   6:  of  execution  on  a  removable  fixture, 

Massachusetts   Nat.   Bank   v.   Shinn.  made  by  a  creditor  of  the  lessee,  the 

18  App.  Div.  276,  46  N.  Y.  Supp.  329;  lessor  not   knowing  of  the   levy,   it 

Id..    1G3    N.    Y.    360,    57    N.    E.    611.  being  said  that  If  he  had  known  of 

So    a    purchaser    at    a    sale    under  the  levy  the  result  would  have  been 

mortgage    of   a    fixture    annexed   by  otherwise, 

the  tenant  cannot  remove  it   if  the  2»o  See   ante,   §   191   b. 

tenant   would   not  have   such   right.  2^1  In    re    Glasdir    Copper    Mines 

Ozark  v.  Adams,  73  Ark.   227,  S3  S.  [1904]  1  Ch.  819. 
W.  920;  Sweet  v.  Myers,  3  S.  D.  324, 


c  248  REMEDIES.  1623 

It  has  been  held  in  several  cases  that  if  the  tenant  holding 
under  a  lease  annexes  a  chattel  which  he  has  procured  from  a 
third  person  under  an  agreement  that  the  title  shall  remain  in 
the  latter,282  or  on  which  he  has  given  a  chattel  mortgage  to  a 
third  person,2S3  the  rights  of  such  third  person  take  precedence 
of  the  rights  of  the  lessor  to  claim  the  article  annexed.  Pre- 
sumably, however,  if  the  removal  of  the  article  would  cause  injury 
to  the  premises,  such  person,  as  having  put  it  in  the  tenant's 
power,  by  allowing  him  to  have  possession  of  the  article,  to  annex 
it  to  the  land,  would  be  allowed  to  remove  it  only  upon  rtumburs- 
ing  the  lessor  for  such  injury.  It  has  been  decided  that  the  les- 
sor hhs  no  right,  upon  a  re-entry  for  breach  of  condition,  to  claim 
machinery  affixed  by  the  lessee,  as  against  the  statutory  lien  of 
the  seller  thereof.^^-* 

§  248.     Remedies. 

Adopting  t!u'  theory  that  structures  or  articles  annexed  by  the 
tenant,  which  are  removahb^  by  him  l)eeause  within  the  class  of 
trade,  domestic  and  ornamental,  or  agricultural  fixtures,  are  part 
of  the  realty  until  severed,^^^  it  would  folloAv  that,  so  long  as 
they  remain  unsevered,  they  are  not  the  subject  of  conversion, 
and  so  it  has  been  decided  that  an  action  of  trover  cannot  be 
brought  by  the  tenant  against  the  landlord  because  he  wrongfully 
prevents  the  removal  of  trade  fixtures.28«  In  other  cases,  how- 
ever, the  courts,  regarding  removable  fixtures  as  personalty,^^^ 
have  held  that  the  tenant  may  maintain  trover  in  case  the  land- 
lord prevents  their  removal  by  him.-'*^     In  case  the  right  to  re- 

282Medicke  v.  Saner.  CI  Minn.  15,  2'<5  See  ante,  at  note  83. 

63   N.   W.   110;    Wetherill   v.   Gallag-  286  Minshall    v.    Lloyd.    2    Mees.    & 

her    217   Pa.  632,  66   Atl.  849:    Best  W.    450;    Mackintosh    v.    Trotter,    3 

Mfg.  Co.  V.  Cohn,  3  Cal.  App.  657.  86  Mees.   &  W.  184;    Roffey  v.  Hender- 

Pac.   829;    Joseph   Hall   Mfg.    Co.   v.  son,  17  Q.  B.  575;  Guthrie  v.  Jones, 

Hazlitt.  11  Ont.  App.  749.     But  Kaest-  108    Mass.    191,    11    Am.    Rep.    335; 

ner  v.   Day,   65  111.  App.  623,  seems  Brown  v.  Wallis,  115  Mass.  156;   Rad- 

jjQQ^j.^  din   V.   Arnold,   116   Mass.   270.     See 

3S3  Hewitt    V.    General    Elec.    Co.,  Overton  v.  Willislon,  31  Pa.  155. 

164  111.  420,  45  N.  E.  725;  Metropoli-  2S7  See   ante,  at  note  82. 

tan  Concert  Co.   v.   Sperry,  9  N.  Y.  zss  See  Finney  v.  Watkins,  13  Mo. 

St.  Rep.  342;    Belvin  v.  Raleigh  Pa-  291:  Lewis  v.  Ocean  Nav.  &  Pier  Co., 

per  Co.,  123  N.  C.  138,  31  S.  E.  655.  125  N.  Y.  341,  26  N.  E.  301;   Moore 

2R4  Marinette    Iron    Works    Co.    v.  v.  "Wood,   12  Abb.  Pr.    (N.  Y.)    393; 

Cody,  108  Mich.  381,  66  N.   W.  334.  Rosenau    v.   Syring,    25   Or.    386,    35 


1624  FIXTURES.  §  248 

move  articles  is  based  on  agreement,  it  seems  that  they  are  prop- 
erly to  be  regarded  as  personalty, 2>'0  and  are  consequently  the 
subject   of  conversion.290 

The  right  of  the  tenant  to  maintain  replevin  for  fixtures,  in 
ease  the  landlord  refuses  to  allow  their  removal,  is  also  dependent 
upon  w^hether,  in  that  particular  jurisdiction,  a  removable  fixture 
can  be  regarded  as  personal  property.^^i 

In  case  the  tenant  removes  articles  annexed  by  him  which  he 
has  no  right  to  remove,  he  is  liable  to  the  landlord  as  for  a  con- 
version,292  or  the  latter  may,  it  seems,  bring  trespass  de  bonis 
asportatis,^^^  or  he  may  recover  the  articles  by  an  action  of  re- 
plevin,2»^  provided  they  have  not  been  annexed  to  other  land  and 
so  again  lost  their  chattel  character. 

The  landlord  may  obtain  an  injunction  to  restrain  the  wrong- 
ful removal  of  fixtures  by  the  tenant,  or  one  claiming  under  him. 
if  this  removal  is  calculated  to  cause  irreparable  injury, ^^'^  and 
not  otherwise,  it  has  been  said.^^^  It  was  decided  that  an  in- 
junction would  issue  when  the  tenant  threatened  to  remove  an 
addition  to  a  building  and  this  removal  would  leave  the  build- 
ing open  to  the  elements,-""  and  when  a  sale  of  the  fixtures  under 
execution  was  threatened  by  the  sherifi',  the  threatened  injury 
being  irreparable  and  partaking  of  the  nature  of  waste.^^s     ^q 

Pac.  844;  Watts  v.  Lehman,  107  Pa.  20*  Anderson    v.    Happier,    34    111. 

106;    Vilas   v.   Mason,   25   Wis.    310;  436,  85  Am.  Dec.  318. 

Eldridge   v.    Hoefer,   45   Or.   239,   77  205  See    Sunderland    v.    Newton,    3 

Pac.  874.  Sim.   450;    Hamilton   v.   Stewart,   59 

289  See  ante,  at  note  174.  111.  330;    Nolan  v.  Rotsler,  135   Cal. 

290  See  Chalifoux  v.  Potter,  113  264,  67  Pac.  127.  Compare  ante,  § 
Ala.  215,  21  So.  322;   Stout  v.  Stop-  109  b   (2). 

pel,  30  Minn.  56,  14  N.  W.  268;  and  206  Hamilton    v.    Stewart,    59    111. 

cases  cited  13  Am.  &  Eng.  Enc.  Law,  330.     But  see  Brigham  v.  Overstreet, 

679,  note  2.  128  Ga.  447,  57  S.  E.  484,  10  L.  R.  A.' 

^01  See  Raymond  V.  Strickland,  124  (N.    S.)    452,   to   the   contrary,   pro- 

Ga.  504,  52  S.  E.  619,  3  L.  R.  A.   (N.  vided  the  removal  would  constitute 

S.)  69.  waste.    And  see  ante,  §  109  b  (2),  as 

292  Weeton   v.   Woodcock,   7   Mees.  to  injunctions  against  waste. 

&  W.    14;    McNally   v.    Connolly,    70  297  Portescue  v.    Bowler,    55   N.   J. 

Cal.  3,  11  Pac.  320;  Morgan  v.  Neg-  Eq.   741.   38  Atl.   445.     See  Camp  v. 

ley,  3  Pittsb.  R.   (Pa.)   33.  Chas.   Thatcher   Co.,  75      Conn.   165, 

»3  See    Ewell,    Fixtures    (2d    Ed.)  52  Atl.  953. 
424;    13  Am.  &  Eng.  Enc.  Law   (2d  298  Richardson   v.  Ardley,  38  Law- 
Ed.)   681.  J.   Ch.   508. 


REMEDIES.  1625 

§  248 

injunction  has  also  issued  to  restrain  removal  pendinc.  an  action 
at  law  to  ascertain  the  rights  of  the  parties.-^  An  mjunction 
was  refused,  however,  when  the  fixtures  sought  to  be  remoyed 
had  been  substituted  for  others  belonging  to  the  lessor,  it  being 
said  that  the  lessor's  claim  to  such  substituted  fixtures,  conceding 
that  it  was  justified,  was  "based  on  strict  legal  right  as  to  the 
result  of  substitution.  "300 

2»o  Sunderland  v.  Newton,   3   Sim.       3oo  Fox  v.  Lynch.  7i  N.  J.  Eq.  537, 
450;   Baker  v.  National  Biscuit  Co.,   C4  Atl.  439. 
96   111.   App.   228. 


CHAPTER  XXIV. 

CROPS. 

§  249.     Tenant  entitled  to  crops  and  annual  fruits. 

250.  Stipulations  against  removal  of  crops. 

251.  The  doctrine  of  emblements. 

a.  Nature  of  the  right. 

b.  Things  which  are  the  subject  of  the  right 

c.  Classes  of  tenants  entitled. 

(1)  Life  tenant. 

(2)  Life  tenant's  lessee. 

(3)  Tenant  at  will. 

(4)  Tenant  for  years. 

(5)  Tenant  from  year  to  year. 

(6)  Tenant  at  sufferance. 

d.  Effect  of  forfeiture  by  tenant. 

252.  Tenant's  rights  as  against  prior  mortgage  or  paramount  title. 

253.  Agreements  for  the  division  of  crops. 

a.  General  considerations. 

b.  Tenancy  in  common  in  crops. 

c.  Duties  as  regards  cultivation  and  barvesttng. 

d.  Ascertainment  of  landlord's  share, 

e.  Delivery  of  landlord's  share. 

(1)  Mode  of  delivery. 

(2)  Time  of  delivery. 

f.  Transfer  of  undivided  share. 

g.  Rights  of  creditors. 

b.     Enforcement  of  rights  as  between  the  parties. 
1.     Actions  against  third  persons. 

§  249.     Tenant  entitled  to  crops  and  annual  fruits. 

A  lease,  like  any  other  conveyance  of  a  present  estate  in  land,^ 
transfers  the  right  to  the  vcfretable  products  of  the  soil  which 
are  growing  at  the  time,  unless  they  are  expressly  excepted  from 
its  operation.2     And  since  the  tenant  under  the  lease  is  given 

1  See  1  Tiffany,  Real  Prop.  §   226.    Broughton    v.    Powell,    52    Ala.    123; 

2  Robinson  v.  Kruse,  29  Ark.  575;    Tuttle  v.  Langley,  68  N.  H.  464,  39 


»  049  TENANT  ENTITLED.  1627 

the  full  right  of  possession  and  enjoyment  of  the  premises,  he  is 
also  entitled  to  such  vegetable  products  as  may  be  the  result 
of  his  own  planting  during  the  tenancy,  "frucius  vndustnales, 
as  they  are  sometimes  called.^  The  fact  that  the  tenant  had  the 
benefit  of  the  crop  growing  at  the  time  of  the  lease  m  no  way 
affects  his  riehts  as  to  subsequent  crops,  even  though  the  effect 
is  to  give  him  more  annual  crops  than  the  number  of  the  years 
of  his  term.^  Nor  does  the  fact  that  a  portion  of  the  profits  from 
the  leased  premises  is  to  be  paid  to  the  landlord  affect  the  ten- 
ant's absolute  ownership  of  the  crops.'^ 

In  the  case  of  frucius  naturahs,  such  as  trees,  growing  timber 
and  grass,  the  right  of  the  tenaut  under  the  lease  to  appropriate 
such'products  is  restricted  by  reason  of  the  prohibition  of  waste,« 
but  he  may  take  the  periodical  products  of  such  permanent  plant- 
ings, such  as  the  fruits  on  the  trees  and  bushes,  and  the  crops  of 
grass  or  hay,  since  this  cannot  be  regarded  as  wasted     In  one 

Atl  4S8;  Martin  v.  Knapp,  57  Iowa,  Mich.  76;  Iddings  v.  Nagle.  2  Watt3 
336  10  N  W  721;  Hosli  v.  Yokel.  57  &  S.  (Pa.)  22;  Doremus  v.  Howard. 
Mo'  App'  622;  Edwards  v.  Perkins.  23  N.  J.  Law  (3  Zab.)  390;  McLellan 
7  Or  149-  Emery  v.  Fugina.  68  Wis.  v.  Whitney.  65  Vt.  510.  27  Atl.  117. 
505  32  N  W  236;  Comfort  v.  Dun-  The  lessor  is  not  entitled  to  drift- 
can  1  Miles  (Pa.)  229;  Willey  v.  wood  landed  by  the  lessee  from  the 
Conner.  44  Vt.  68;  Piper  v.  Piper,  adjoining  river.  Dyer  v.  Haley.  29 
122    Mich.    662.    81    N.    W.    554;    Al-    Me.  277. 

bright  V.  Mills.  86  Ala.  324.  5  So.  591.  *  Comfort  v.  Duncan,  1  Mi  es 
In  Hisey  v.  Troutman.  84  Ind.  115.  (Pa.)  229;  Willey  v.  Conner.  44  Vt. 
it   was  held  that  the  growing  crop   68. 

may    be    orally    excepted    from    the       ^  McLellan  v.  Whitney,  65  Vt.  510, 

27  Atl.  117;  Rowlands  v.  Voechting, 
Tt\as  been  decided  that  the  lessee  115  Wis.  352.  91  N.  W.  990;  Randall 
may  have,  by  custom,  the  right  to  v.  Ditch.  123  Iowa.  582.  99  N.  W.  190. 
enter  to  sow  crops  before  the  com-  So  when  a  certain  portion  of  the 
mencement  of  the  term.  Stephen-  product  of  the  tenant's  factory  is  to 
son  V  Elliott.  2  Ind.  App.  233.  28  N.  be  paid  as  rent,  the  tenant  owns  all 
g    326  the  product  until  payment  is  made, 

'sin  re  LuckenbiU.  127  Fed.  984;  Rowland  v.  Forlaw,  108  N.  C.  567. 
Robinson  v.  Kruse.  29  Ark.  575;  13  S.  E.  173. 
Cheney  v.  Bonnell.  58  111.  268;  Frame  «  See  ante,  §  109  a  (5). 
V  Badger  79  111.  441;  Munier  v.  ^  Hurtt  v.  Woodland,  24  Md.  417 
Zachary  (Iowa)  114  N.  W.  525;  (fruit);  Felch  v.  Harriman,  64  N. 
Holdeman  v.  Smith.  3  Kan.  App.  H.  472.  13  Atl.  418  (fruit);  Lewis  v. 
423  43  Pac.  272;  Brown  v.  Turner,  McNatt,  65  N.  C.  63  (turpentine  on 
60  Mc  21-  Torche  v.  Bodin,  28  La.  trees);  Quiggle  v.  Vining.  125  Ga. 
Ann.    7G1;    Stadden   v.    Hazzard,    34    98.   54    S.   E.   74    (fruit).     That  the 


1628 


CROPS. 


§249 


case  thorc  is  a  suggestion  tliat  a  ten.int,  if  he  harvests  a  crop  of 
hay  prematurely,  at  a  time  when  it  is  not  good  husbandry  so  to 
do,  in  order  not  to  leave  it  on  the  premises  at  the  end  of  his 
term,  would  not  be  entitled  to  retain  it.^  If  such  cutting  can  be 
regarded  as  waste,  this  view  is  no  doubt  correct,  since  a  tenant 
is  not  entitled  to  the  proceeds  oi"  waste  coramittiMl  by  him,^  but 
it  might  perhaps  be  regarded  as  merely  a  breach  of  his  im- 
plied contract  to  cultivate  according  to  the  rules  of  good  hus- 
bandry,"^ rendering  him  liable  in  damages  onl}'. 
The  tenant  being  the  owner  of  the  annual  crops,  he  has  a  right 


tenant  Is  entitled  to  hay  and  grass, 
see  Turner  v.  Bachelder,  17  Me.  257; 
Dockham  v.  Parker,  9  Me.  (9 
Greenl.)  137,  23  Am.  Dec.  547;  Or- 
cutt  V.  ^Toore,  134  Mass.  48,  45  -Vm. 
Rep.  27S;  Doremus  v.  Howard,  23 
N.  J.  Law  (3  Zab.)  390;  McCombs 
V.  Becker.  3  Hun  (N.  Y.)  342;  St. 
Louis,  I.  M.  &  S.  F.  R.  Co.  v.  Hall, 
71  Ark.  302,  74  S.  W.  293.  100  Am 
St.  Rep.  73;  Tuttle  v.  Lanpley,  68  N. 
H.  464.  39  Atl.  488.  See  Carten- 
brook  V.  Wedderien,  5  Cal.  App.  603, 
91  Pac.  117. 

That  the  lessee  has  agreed  to 
*Tieep"  cows  which  were  included  in 
the  lease  of  the  premises  docs  not 
prevent  the  title  to  the  hay  from 
vesting  in  the  lessee,  although  he 
has  no  means  otherwise  with  which 
to  keep  the  cows.  Briggs  v.  Austin, 
129  N.  Y.  208,  29  N.  E.  4. 

An  instrument  whereby  the  land- 
owner agreed  to  "furnish  to"  an- 
other a  certain  number  of  acres, 
more  or  less,  to  row  in  wheat  during 
a  season,  the  landowner  to  receive 
one-fifth  of  the  crop,  and  the  other 
party  agreeing  to  "put  in  wheat 
the  above  mentioned  land,"  was 
i-eld,  "whether  it  be  called  a  lea-^e 
or  a  cropping  contract,"  to  give  the 
latter  a  right  in  so  much  of  the  land 
only  as  he  sowed  in  wheat,  and  iT^t 
to  entitle   him   to   claim   a  "volun- 


teer" crop  growing  on  the  balance. 
Shaw  V.  Mayer,  95  Cal.  301.  30  Pac. 
541.  This  seems  to  be  equivalent  to 
a  decision   thnt   it  was   nni  a   lease. 

In  Hendrr?on  v.  Tre.Tdway,  69 
111.  App.  357,  it  was  apparently  held 
that  where  one  in  po^se?sion  under 
a  lease  left  the  grass  on  the  land 
uncut  because  be  had  obtained  a 
lease  for  the  next  ycir,  he  could  re- 
cover its  value  if  taken  by  the  les- 
sor, the  court  undertaking  to  apply 
the  general  rule  that  one  delivering 
property  under  a  contract  within 
the  statute  of  frauds  may  recover  Its 
value  under  a  quantttm  valehat. 
One  difficulty  with  the  decision  ap- 
pears to  be  that  there  was  in  fact  no 
delivery  of  property,  and  the  rule 
referred  to  is  of  course  applicable 
to  an  entirely  different  class  of 
transactions,  executory  contracts 
within  the  fourth  section  of  the 
English  statute.  The  lessor  was, 
however,  evidently  liable  as  a  tres- 
passer for  taking  the  hay  during 
the  period  of  the  second  year's  lease. 

sWilley  V.  Corjr.er,  44  Vt.  68. 
There  it  is  said  that  the  tenant  was 
entitled  to  the  hay,  it  appearing  to 
be  good  husbandry  to  harvest  it  at 
that  time. 

n  See  ante,  §  109  c. 

10  See  ante,  §  119  a  (1). 


,  249  TENANT  ENTITLED.  1629 

to  transfer  them  by  way  of  mortgage  or  otherwise,ii  and  they  are 
subject  to  levy  by  his  creditors  under  execution.12 

Occasionally  the  question  has  arisen  wliether,  by  reason  of  the 
fact  that  trees,  bushes,  or  shrubs  were  planted  by  the  tenant,  he 
has  a  right  to  remove  them,  though  he  would  not  have  such 
rio-ht  had  they  been  growing  on  the  premises  at  the  time  of  the 
leLe      It  has  been  decided  that  such  growths,  if  planted  by  the 
tenant  in  the  course  of  his  conduct  of  a  nursery  business  on  the 
premises,  with  the  purpose  of  removing  them  for  sale,  may  be 
removed  by  him,  this  view  being  occasionally  based  on  the  theory 
that  they  are  in  the  nature  of  trade  fixtures,  and  sometimes  on 
the  theory  that  they   have  never  become  part  of  the  realty.^^ 
Conceding  that  trees  and  bushes,  if  planted  by  a  nurseryman  for 
the  purpo"se  of  sale,  are  removable  as  trade  fixtures,  it  would  seem 
that,  if  planted  by  a  tenant  for  the  purpose  of  adornment,  they 
might  be  removable  as  ornamental  fixtures.^*     It  has,  however, 
been  decided  in  England  that  the  tenant  cannot  remove  a  bordei 
of  box  planted  by  himself,!^  and  it  is  in  the  same  case  said  that 
he  cannot  remove  a  hedge. ^° 

iijones  V    Webster.  48   Ala.  109;        12  Porche   v.    Bodin.    28    La.    Ann. 

Arques   v    Wos^^on.   51   Cal.   620.   21    701;    V.'hipple  v.  Foot.  2  Johns.   (N. 

Am    Rep.  718;   Strawhacker  v.  Ives.    Y.)    418.   3   Am.   Dec.  442.     And  see 

114  Iowa.  CGI.  87  N.  W.  CG9;  North-    post.   §   2r,3   g. 

ern    v     State     1    Smith    (Ind.)    71;        13  Wardell  v.  Usher.  3  Scott  N.  R. 

Headrick   v.   Brattain.   03   Ind.   438;    508;  Oakley  v.  Monck.  L  R.  1  Exch 

Brown  v    Turner.  60   Mo.  21;   Ever-    163;  Wyndham  v.  Way.  4  Taunt.  316 

man  v    Robb,  52  Mis.=^.   053.  24  Am.    (dictum);    Fox   v.    Brissac.    15   Cal. 

Rep    68?-   Jencks  v.  Smith.  1  N.  Y.    223;   Maples  v.  Millon.  31  Conn.  598 
(1  Comst)   90;   Yates  v.  Kinney.  19    (di-tum);  Miller  v.  Baker,  42  Mass. 
Neb    275    27  N    W    132;   Doromus  v.    (1  Mete.)   27;   Adams  v.  St.  Louis  & 
Howard.' 23  N.J.  Law  (3  Zab.)  390.    S.  F.  R.  Co..  138  Mo.  242,  28  S.  W. 
A   mortgage   of  crops   to  be   grown.    496.  29  S.  W.  836;   Duffus  v.  Bangs, 
m.do  bv  a  lessee  after  the  lease  but    122  N.   Y.  423.  25  N.   E.   980;    King 
before  "the    commencement    of    the   v.   Wilcomb,   7    Barb.    (N.  Y.)    263; 
term   has  been  held  not  to  be  valid.   Wintermute  v.   Light,  46  Barb.    (N. 
he  not  being  the  owner  of  the  prem-   Y.)  278.    That  they  must  be  removed 
ise<.    and    having    therefore    no    po-    before    the    end    of    the    term,    see 
tential  ownership  in  the  crop.     Page   Brooks  v.  Galster.  51  Barb.   (N.  Y.) 
V    Larrowe,    60  Hun,   636,   22   N.   Y.    196. 
Supp      1099.     A     mortgage     of     the       14  See  ante.  §  240  b. 
crops  by  the  tenant  to  the  landlord       is  Empson    v.    Soden,    4    Barn.    & 
does  not  -i^ort  the  existence  of  the    Adol.   655.  1  Nev.  &  M.  720. 
tenancy     Steele  v.  Moore,  54  Ind.  52.       is  m  Wyndham  v.  Way.  4  Taunt 


1(330  CROPS.  §  250 

In  caso  of  surrcnrlor  by  the  tenant  to  the  landlord,  the  tenant 
loses  all  right  to  the  crops,  they  passing  to  the  landlord  with 
the  land,  as  in  the  case  of  any  other  conveyance.  Consequently, 
no  question  can  arise  as  to  the  tenant's  right  to  enter  for  tht 
purpose  of  harvesting  them  after  the  termination  of  the  tenancy 
by  surrender,!^  and  it  is  immaterial  that  the  surrender  is  not 
express  but  is  by  operation  of  law,  as  wlion  the  tenant  a])andons 
and  the  landlord  resumes  possession. ^^  If,  however,  the  tenant 
has,  before  the  surrender,  sold  his  crop  to  another,  the  latter 'a 
rights  cannot  be  affected  by  the  surrender,  at  least  if  the  land- 
lord has  notice  of  such  sale,^^  this  according  with  the  general 
rule  that  a  surrender  does  not  divest  ri'jhts  previously  vested  in 
a  third  person. 2'^  And  crops  which  have  been  cut,  it  appears, 
remain  the  property  of  the  tenant. ^o* 

§  250.    Stipulations  against  removal  of  crops. 

Occasionally  the  lease  provides  that  the  hay  or  straw  or  some 
other  particular  class  of  crop  shall  not  be  removed  from  the  land, 
or  that  it  shall  be  consumed  thereon,  the  purpose  of  such  a  pro- 
vision being  ordinarily  to  prevent  the  impoveri.shment  of  the 
soil.  A  provision  of  this  character  has  by  some  cases  been  re 
garded  as  vesting  the  title  to  the  crop  named  in  the  landlord,2i 

316  it  is  said,  per  Heath.  J.,  that  a  It  was  decided  In  England  that 
farmer  who  raises  young  trees  for  the  purchaser  of  the  crops  could, 
the  purpose  of  filling  up  the  orch-  upon  a  surrender  taking  place,  as- 
ards  on  the  premises  cannot  remove  sert  a  ri?:ht  to  the  crops  only  sub- 
such  trees.  j^^*^  to  liability  to  distress  for  rent, 

17  Sweeper  v.  Randal.  Cro.  Eliz.  that  is.  the  purchaser  could  not  assert 
15fi;  Clements  v.  Matthews,  11  Q.  B.  that  the  surrender  was  invalid  as 
Div.  808;  Shahan  v.  Herzberg,  73  against  him  for  the  purpo=^e  of  giv- 
Ala.  59;  Silva  v.  Bair,  141  Cal.  599.  ing  him  the  crops,  and  valid  in  his 
75  Pac'  162;  McClary  v.  Turner.  3  favor  for  the  purpose  of  relieving 
Houst.   (Del.)   281,  32  Atl.  325.  the  crops  from  liability  to  distress. 

18  Carpenter  v.  Jones,  63  111.  517;  Clements  v.  Matthews,  11  Q.  B.  Div. 
Gregg  v.   Boyd,   69   Hun,  588,   23   N.    808. 

y.    Supp.    918;    Hetfield   v.    Lawton,  20  See  ante.  §  191  b. 

108   App.   Div.    113,  95   N.  Y.   Supp.  aoa  See   Griswold   v.  Morse,   59   N. 

451;  Sharp  v.  Kinsman,  18  S.  C.  lOS.  H.   211. 

10  Shaw   v.   Bowmcin.   91   Pa.    414;  21  ]\Tou1ton   v.  Robinson,   27   N.   H. 

Nye  V.  Patter<^on,  35  Mich.  413;  Day-  550:    Hatch    v.    Hart,    40   N.    H.    93; 

ton    V.    Van    D^ozer.    39    Mich.    749.  Lewis  v.  Lyman,  .39  Mass.  (22  Pick.) 

See  Carr.oy  v.  Mosher,  97  Mich.  554,  437;    Fenld    v.    Builders'    Mut.    Fire 

56  N,  W.  935.  Ills.    Co.,    Ill    Mass.    38;    Potter    v. 


-        j^  DOCTRINE  OF  EMBLEMENTS.  1631 

while  by  other  eases  it  is  not  regarded  as  affecting  the  ten- 
ant's oAvnership  of  the  crop,  it  being  in  effect  merely  a  cov- 
enant sounding  in  damages.— 

There  is  sometimes  a  provision  to  the  effect  that  the  hay  or 
straw  shall  be  kept  on  the  premises  for  the  purpose  of  feeding 
stock  thereon  belonging  to  the  lessor.  That  this,  rather  than 
the  improvement  of  the  soil,  is  the  purpose  of  the  prohibition  of 
removal  or  sale,  does  not,  it  seems,  affect  the  question  of  the  title 
to  such  crop.2^ 

§  251.     The  doctrine  of  emblements. 

a.  Nature  of  the  right.  It  is  a  general  rule  that  if  one's  es- 
tate in  land  comes  to  an  end  at  a  time  which  he  could  not  have 

Cunningham,  34  Me.  192;  Coe  v.  Wil-  straw  to  the  cows  on  the  farm  de- 
son,  46  Me.  314  (compare  Symonds  prived  him  of  the  beneficial  use 
V.  Hall,  37  Me.  354.  59  Am.  Dec.  53) ;  thereof  and  of  the  ri^ht  to  take 
Hunt  V.  Scott,  3  Pa.  Co.  Ct.  R.  411;  such  crops  off  the  farm,  and  that 
Young  V.  Waiters,  5  Pa.  Co.  Ct.  R.  an  execution  creditor  of  the  tenant 
2^27  had  no  greater   right.     The  opinion 

22  Colville  V.  Miles,  127  N.  Y.  159,  of  Boyd,  Ch.,  in  this  case,  reviews 
27  N  E  809,  12  L.  R.  A.  848,  24  all  the  English  authorities  in  any 
Am.  St.  Rep.  433;  Munier  v.  Zachary  way  bearing  upon  the  question  of 
(Iowa)  114  N.  W.  525;  McLellan  v.  the  effect  of  such  a  clause. 
Whitney,  65  Vt.  510.  27  Atl.  117;  In  Hunt  v.  Rublee,  6  Vt.  448.  58 
Ridgway  v.  Stafford,  6  Exch.  404  Atl.  724,  it  is  stated  that  a  provision 
(dictum).  That  a  stipulation  that  "no  hay  shall  be  sold,  but  the 
against  removal  of  hay  gives  the  stock  shall  be  increased  to  consume 
landlord  no  property  in  the  hay  it,"  made  the  parties  tenants  in  corn- 
available  against  an  innocent  pur-  mon  of  the  hay.  In  this  state  it  has 
chaser,  see  Marshall  v.  Luiz,  115  Cal.  been  decided  that  if  the  tenant  sells 
622    47  Pac.  597.  the  crops  in  violation  of  a  provision 

In  England  there  is  a  dictum  in  in  the  lease,  he  and  his  vendee  im- 
Ridgway  v.  Stafford,  6  Exch.  404,  mediately  become  liable  to  the  land- 
that  a  covenant  by  the  tenant  not  lord  in  damages.  Briggs  v.  Oaks,  26 
to  sell  did  not  affect  his  power  to  Vt.  138;  Briggs  v.  Bennett,  26  Vt. 
sell,  but  only  rendered  him  liable  146;  Gray  v.  Stevens,  28  Vt.  1,  65 
in  case  of  breach.  In  Crosse  v.  Am.  Dec.  216;  Wilmarth  v.  Pratt,  56 
Duckers,  27  Law  T.   (N.  S.)   816,  an   Vt.    474. 

injunction  was  granted  against  a  =3  Sp^  Lewis  v.  Lyman,  39  Mass. 
sale  in  violation  of  the  covenant.  (22  Pick.)  437;  Potter  v.  Cunning- 
In  Snetzinger  v.  Leitch,  32  Ont.  440,  ham,  34  Me.  192;  Colville  v.  Miles, 
it  was  decided  that  "while  the  prop-  127  N.  Y.  159,  27  N.  E.  809,  12  L. 
erty  might  be  legally  in  the  tenant.  R.  A.  SIS,  24  Am.  St.  Rep.  433;  Snet- 
yet  his  contract  to  feed  the  hay  and    zinger  v.  Leitch,  32  Ont.  440. 


1632 


CROPS. 


§251 


previously  ascertained,  without  his  fault  and  without  any  action 
on  his  part  to  bring  about  such  a  result,  he  is  entitled  to  take 
the  annual  crops  planted  by  him  before  the  termination  of  tht 
estate.=4  This  right  is  ordinarily  referred  to  as  the  right  or  doc- 
trine of  "emblements,"  and  is  based  upon  the  justice  of  assur- 
ing to  the  tenant  compensation  for  his  labor,  and  also  upon  the 
desirability  of  encouraging  husbandry,  as  a  matter  of  public 
policy. 

The  fact  that  the  tenant  has  done  work  on  the  land  in  tlie 
nature  of  plowing  or  manuring,  before  the  termination  of  his  ten- 
ancy, does  not,  if  he  has  not  actually  sown  the  crop,  entitle  him 
to  assert  any  claim  to  the  crop  subsequently  grown.25 

The  tenant  entitled  to  emblements  has  the  right  of  ingress  to 
and  egress  from  the  premises  for  the  purpose  of  harvesting  and 
taking  away  the  crops. =«  He  also  has  the  right  to  go  upon  the 
premises  for  the  purpose  of  doing  such  cultivation  as  may  be 
necessary .=^"  lie  has  not,  however,  the  right  of  exclusive  occu- 
pation.'S     The  right  of  ingress  and  egress  for  this  purpose  also 


24  Co.  Litt.  55  b;  2  Blackst.  Comm. 
123.  See  Sornberser  v.  Berggren,  20 
Neb.  399,  30  N.  W.  413;  Bittinger  v. 
Baker,  29  Pa.  GG,  70  Am.  Dec.  154; 
Davis  V.  Brocklebank,  9  N.  H.  73. 

25  Bro.  Abr.,  Emblements,  pi.  7; 
Reeder  v.  Sayre,  70  N.  Y.  180,  26 
Am.  Rep.  567;  Price  v.  Pickett,  21 
Ala.  741;  Stewart  v.  Doughty,  9 
Johns.  (N.  Y.)  108;  Thompson's 
Adm'r  v.  Thompson's  Ex'r,  6  Mnnf. 
(Va.)  514;  Kingsbury  v.  Collins,  4 
Bing.  202.  Contra  by  statute,  in  Vir- 
ginia.    Code  1904,   §    2808. 

26  Litt.  §  68;  Co.  Litt.  56  a;  Simp- 
Idns  V.  Rogers,  15  111.  397;  Reilly  v. 
Ringland,  39  Iowa,  lOG;  Van  Doren 
V.  Everett,  5  N.  J.  Law  (2  Southard) 
460,  8  Am.  Dec.  615;  Reeves  v.  Han- 
nan,  65  N.  J.  Law,  249,  48  Atl.  1018; 
Brown  v.  Thurston,  56  Me.  126,  96 
Am.  Dec.  438;  Towne  v.  Bowers,  81 
Mo.  491:  Davis  v.  Brocklebank,  9 
N.  H.  73;  Stewart  v.  Doughty,  9 
Johns.    (N.  Y.)    108. 

27  Bevans  v.  Briscoe,  4  Har,  &  J. 


(Md.)  139;  Den  d.  Humphries  v. 
Humphries,  25  N.  C.  (3  Ired.  Law) 
3G2;  Edghill  v.  Mankey,  79  Neb.  347. 
112  N.  W.  570,  11  L.  R.  A.  (N.  S.) 
GS8. 

2s  Den  d.  Humphries  v.  Hum- 
phries. 25  N.  C.  (3  Ired.  Law)  362; 
r:aghill  V.  Mankey,  79  Neb.  347.  112 
N.  W.  570.  11  L.  R.  A.  (N.  S.)  688; 
Collins  v.  Crownover  (Tenn.)  57 
S.  W.  357:  Smith.  Landl.  &  Ten.  (3d 
Ed.)  404;  1  Williams,  Executors 
(9th  Ed.)  632.  See  Stoddard  v.  Wa- 
ters, 30  Ark.  156.  But  in  Bevans  v. 
Briscoe.  4  Har.  &  J.  (Md.)  139,  It 
is  said  that  "the  reversioner  is  not 
entitled  to  the  occupation  of  the 
lands  on  which  a  crop  is  growing 
until  that  crop  is  taken  off.  or  a 
reasonable  time  is  given  for  taking 
it  off."  And  in  Griffiths  v.  Puleston, 
13  Mees.  &  W.  358.  a  customary 
right  to  take  away-going  crops 
(post,  notes  59,  GO)  was  regarded  as 
giving  a  right  of  possession. 


§  251  DOCTRINE  OF  EMBLEMENTS.  1633 

exists  in  favor  of  one  interested  in  the  crop  M-ith  the  tenant,-''  of 
the  tenant's  grantee,^''  and  of  the  tenant's  personal  representative 
on  his  death,^^  and  it  can  be  asserted  against  any  transferee  of 
the  reversion.32 

It  has  been  suggested  that  the  tenant  or  his  representative 
might  be  held  liable  for  rent  on  account  of  his  occupation  of  the 
land  during  the  time  necessary  for  the  maturing  and  harvesting 
of  the  crops,^^  but  the  cases  generally  make  no  reference  to  such 
possibility,^*  and  it  seems  entirely  opposed  to  the  view  that  the 
tenant  has  merely  a  right  of  occupancy,  and  of  ingress  and  egress, 
for  the  purpose  of  caring  for  the  crop,  and  no  right  of  exclusive 
possession.  In  one  state  the  statute  makes  the  tenant  liable  for 
rent  proportioned  to  the  extent  of  the  land  required  for  the 
crop.^^ 

b.  Things  which  are  the  subject  of  the  right.  The  right  to 
emblements  is  confined  to  those  things  which  yield  an  annual 
profit.  If  the  lessee  "plant  young  fruit  trees,  or  young  oaks, 
ashes,  elms,  etc.,  or  sow  the  ground  with  acorns,  etc.,  there  the 
lessor  may  put  him  out  notwithstanding,  because  they  will  yield 
no  present  annual  profit. "3*^  "The  doctrine  of  emblements  extends 
not  only  to  corn  sown,  but  to  roots  planted,  or  other  annual  arti- 
ficial profit,  but  it  is  otherwise  of  fruit  trees,  grass  and  the  like, 
which  are  not  planted  annually  at  the  expense  and  labor  of  the 
tenant,  but  are  either  a  permanent  or  natural  profit  of  the  earth. 
For  when  a  man  plants  a  tree  he  cannot  be  presumed  to  plant 
it  in  contemplation  of  any  present  profit;  but  merely  with  a 
prospect  of  its  being  useful  to  himself  in  future,  and  to  future 
successions  of  tenants.  "^^  It  does  not  extend  to  fruit  growing 
on  trees  or  bushes  at  the  time  of  the  termination  of  the  ten- 
ancy .^^  Grass,  even  though  sown  from  seed,  and  ready  to  be  cut 
for  hay,  cannot  be  taken  as  emblements,  since  "the  improvement 

29  Kingsbury  v.  Collins,  4  Bing.  See  1  Williams,  Executors  (9th  Ed.) 
202.  632. 

sosheppard's    Touchstone,    244.  '*  ^^    is    negatived    in    Bevans    v. 

,r..-u  T^^  s    Briscoe,  4  Har.  &  J.    (Md.)    139. 
811  Williams,  Executors  (9th  Ed.)        ,   _,.     .    .     ^    ,     ....     „  „„^_ 


623. 


35  Virginia  Code  1904,  §  2807. 
3e  Co.  Litt.  55  b. 


32  Kingsbury    v.    Collins,    4    Bing.       37  3  Blackst.  Comm.  123. 

202.  38  1      Williams,     Executors      (9th 

33  piowden's      Queries.     No.      239.    Ed.)  620,624. 


L.  and  Ten.  103. 


1G34  CROPS.  §  251 

is  not  distin<j:iiishable  from  what  is  natural  product,  althouj^h  it 
may  be  increased  by  cultivation,  "^o  It  seems,  however,  tbat  arti- 
ficial f^rasses,  such  as  clover,  saintfoin  and  the  like,  may  be  taken 
as  emblements.'*'^''*^  The  riu'lit  of  emhlciiu-nts  applies  to  the 
straw  as  well  as  to  the  «,'rain  raised  by  the  annual  phintinfj:.-*^ 

Hops,  though  they  grow  from  ancient  roots,  have  been  r(\,'arded 
as  "like  emblements,"  because  they  grow  "by  the  manurance 
and  industry  of  the  owner, "-^^  that  is,  "the  labor  and  expense, 
without  which  they  would  not  grow  at  all,  seems  to  liave  been 
deemed  equivalent  to  the  souing  and  planting  of  other  veg- 
etables."'** The  sajne  theory  has  been  applied  in  this  country 
with  regard  to  crude  turj)entine  forming  on  the  body  of  the 
tree,  usually  known   as  "scrape."-*^ 

The  doctrine  of  emblements  applies  to  "a  crop  of  that  species 
only,  which  ordinarily  repays  the  labor  by  Avhich  it  is  produced, 
within  the  year  in  which  that  labor  is  l)est()wed,  though  the  crop 
may,  in  extraordinary  seasons,  be  delayed  beyond  that  jx'riod."^'' 

A  tenant  who  has  taken  one  crop  from  a  single  sowing  cannot, 
after  the  tenancy  has  come  to  an  end,  take  a  sec(>nd  crop  from 
the  same  sowing,  although  he  has  applied  additional  labor  to 
make  the  second   'Toi).'" 

c.  Classes  of  tenants  entitled — (1)  Life  tenant.  The  doctrine 
of  emblements  is  applied  when  a  life  tenant  plants  crops  and  dies 
before  they  are  gathered,  his  personal  representatives  being  in 
such  case  entitled  to  the  crops."*^  A  tenant  pur  autre  vie  may 
take  the  crops  upon  the  death  of  the  cestui  que  vie.^^ 

39  1     Williams,     Executors.     625;  Compare    Florala    Saw    Mill    Co.    v. 

Reiff  V.  Reiff,  64  Pa.  134.  Parrish  (Ala.)  46  So.  401. 

40,411    Williams,    Executors,    625;  4c  Graves  v.  Weld,  5  Barn.  &  Adol. 

Graves  v.  Wells,  5  Barn.  &  Adol.  105.  105. 

42  Craig  V.  Dale,  1  Watts  &  S.  ^t  Graves  v.  Weld,  5  Barn.  &  Adol. 
(Pa.)  509,  37  Am.  Dec.  477.  The  10.=i.  This  rule  was  applied,  in 
case  involved  the  right  to  the  straw  Hendrixson  v.  Cardwell,  68  Tenn. 
as  a  part  of  the  away-going  crop,  (9  Baxt.)  389,  40  Am.  Rep.  93,  to  a 
but  the  principles  asserted  by  the  case  in  which  the  tenant,  after  tak- 
court  would  apply  to  the  right  of  ing  one  crop  of  oats,  "plowed  In" 
emblements.  the  stubble  to  make  a  second  crop. 

43  Latham  v.  Atwood,  Cro.  Car.  4s  Co.  Litt.  55  b;  2  Blackst.  Comm. 
515.  122. 

44  Graves  v.  Weld,  5  Barn.  &  Adol.  4n  Co.  Litt.  55  b;  Bro.  Abr.,  Emble- 
105,  119.  ments,  pi.   16. 

45  Lewis   v.   McNatt,   65   N.    C.    63. 


§251 


DOCTRINE  OF  EMBLEMENTS. 


1635 


(2)  Life  tenant's  lessee.  One  holding  under  a  lease  from  a 
life  tenant  is  entitled  to  the  benefit  of  the  rule.  Thus,  if  a  life 
tenant,  after  making  a  lease,  dies  before  the  end  of  the  term 
thereby  created,  the  lessee  is  entitled  to  take  the  crops  as  against 
the  remainderman,^*^  ^nd  he  is  so  entitled  when  the  lessor's  estate 
comes  to  an  end  by  the  latter 's  own  act,  though  the  lessor  himself 
would  not  have  been  entitled  in  such  case  to  crops  planted  by 
himself.^^ 

(3)  Tenant  at  will.  A  tenant  at  will,  or  his  representative, 
is  entitled  to  the  crops  planted  by  such  tenant,  if  the  tenancy 
comes  to  an  end  by  some  providential  cause,  as  by  his  own  death 
or  by  that  of  his  landlord,  or  if  the  landlord  terminates  the  ten- 
ancy," but  not  if  the  tenant  himself  terminates  it  by  some  vol- 


60  Co.  Lltt.  55  b;  Bro.  Abr.,  Leases, 
pi.  24;  Emblements,  pi.  6;  Edghill 
V.  Mankey,  79  Neb.  347,  112  N.  W. 
570.  11  L.  R.  A.  (N.  S.)  688;  Bev- 
ans  V.  Briscoe,  4  Har.  &  J.  (Md.) 
139.  The  fact  that  the  lessee  knows, 
at  the  time  of  planting  the  crop, 
that  his  lessor  will  almost  certainly 
die  before  they  mature,  is  immateri- 
al. Bradley  v.  Bailey,  56  Conn.  374, 15 
Atl.  746,  1  L.  R.  A.  427,  7  Am.  St. 
Rep.  316.  Occasionally  the  statute 
provides  that  in  such  case  the  ten- 
ancy shall  continue  until  the  crop 
matures.     Ante,  §  69  c,  note  21. 

In  Kentucky  the  provision  of  a 
statute  (St.  1903,  §  3862)  naming 
the  persons  entitled  to  crops  upon 
the  death  of  a  life  tenant  was  re- 
garded as  applying  when  the  tenant 
In  possession  held  under  a  lease 
from  the  life  tenant  so  dying. 
Devers  v.  May.  30  Ky.  Law  Rep. 
528,  99  S.  W.  255. 

51  As  when  one  having  an  estate 
during  widowhood  makes  a  lease 
and  then  marries.  In  such  case  the 
lessee  is  entitled  to  emblements. 
Oland  V.  Burdwick,  Cro.  Eliz.  460; 
Debow  V.  Colfax.  10  N.  J.  Law  (5 
Halst.)    128;   2  Blackst.  Comm.   124. 


And  so  a  subtenant  does  not  ordi- 
narily lose  his  crops  by  reason  of  the 
enforcement  of  a  forfeiture  by  the 
head  landlord  on  account  of  a 
breach  of  condition  by  the  head  ten- 
ant. Bevans  v.  Briscoe,  4  Har.  & 
J.  (Md.)  139;  Samson  v.  Rose,  65  N. 
Y.  411.  But  it  has  been  held  that  a 
sublessee  who  sowed  after  the  com- 
mencement of  an  ejectment  proceed- 
ing by  the  chief  landlord  to  enforce 
a  forfeiture  of  the  interest  of  the 
sublessor  could  not  claim  the  crops 
as  against  the  chief  landlord.  Sam- 
son V.  Rose,  65  N.  Y.  4ll. 

52Litt.  §  68;  Co.  Litt.  55  b,  56  a,  63 
a;  Oland's  Case,  5  Coke.  116  a;  Mor- 
gan V.  Morgan,  65  Ga.  493;  Ellis  v. 
Paige,  18  Mass.  (1  Pick.)  43;  Harris 
V.  Frink.  49  N.  Y.  24.  10  Am.  Rep. 
.318;  Reilly  v  Rinsland,  39  Iowa, 
106;  Brown  v.  Thurston,  56  Me.  126, 
96  Am.  Dec.  438;  Simpson  v.  Rog- 
ers, 15  111.  397;  Howell  v.  Schenck, 
24  N.  J.  Law  (4  Zab.)  89;  Towne 
V.  Bowers,  81  Mo.  491;  Monday  v. 
O'Neil,  44  Neb.  724,  63  N.  W.  32,  48 
Am.  St.  Rep.  760;  Davis  v.  Brock- 
lebank,  9  N.  H.  73.  Occasionally  a 
statute  gives  such  rights  to  a  ten- 
ant  at   will.     Georgia   Code   1895,   § 


1G36 


CROPS. 


§251 


imtary  act  on  his  part.^^ 

(4)  Tenant  for  years.  A  tenant  for  years  is  not  ordinarily 
entitled  to  emblements,  since  he  knows  when  the  term  is  to  come 
to  an  end,  and  should  not  plant  crops  which  will  not  mature  be- 
fore that  time,^-*  but  he  is  so  entitled  if  the  tenancy  comes  to  an 
end,  without  his  connivance,  before  the  end  of  the  term,  as,  for 
instance,  when  this  results  from  the  termination  of  his  landlord's 
estate,'^^  or  by  reason  of  a  "special  limitation."^" 


3134;  Montana  Rev.  Codes,  §  4519; 
North  Dakota  Rev.  Codes  1905.  § 
4800;  South  Dakota  Rev.  Civ.  Code 
1903.  §  280. 

In  Reilly  v.  Ringland,  39  Iowa, 
106,  it  was  held  that  where  an  occu- 
pying claimant  was  given  a  judg- 
ment for  the  cost  of  his  Improve- 
ments, to  be  paid  within  three  years, 
and  the  owner  delayed  to  pay  off  the 
judgment,  the  latter  thereby  as- 
sented to  his  cortinued  occupancy, 
and  the  claimant  being  so  in  pos- 
session by  the  owner's  assent,  was 
entited  to  emblements.  The  deci- 
sion was  in  part  based  on  the  stat- 
ute (Code,  §  2991)  providing  that 
a  person  in  possession  with  the  as- 
sent of  the  owner  is  presumed  to  be 
a  tenant  at  will  unless  the  con- 
trary  is  shown. 

53  Co.  Litt.  55  b;  Chandler  v. 
Thurston.  27  Mass.  (10  Pick.)  205; 
Gland's  Case,  5  Coke,  116;  Oland  v. 
Burdwick,  Cro.  Eliz.  460. 

54  Litt.  §  68;  2.  Blackst.  Comm. 
145;   Florala  Sawmill  Co.  v.  Parrish 

(Ala.)  46  So.  461;  Whitmarsh  v. 
Cutting,  10  Johns.  (N.  Y.)  360; 
Chesley  v.  Welch,  37  Me.  106;  Har- 
ris V.  Carson,  7  Leigh  (Va.)  632,  1^0 
Am.  Dec.  510;  Gossett  v.  Drydale,  48 
Mo.  App.  430;  Whitmarsh  v.  Cutt- 
ing, 10  Johns.  (N.  Y.)  360;  Reeder 
V.  Sayre,  70  N.  Y.  180,  26  Am.  Rep. 
567;  Clarke  v.  Rannie.  6  Lans.  CTC. 
Y.)  210;    Sanders  v.  Ellington,  77  N 


C.   255;    Rasor  v.   Quails.  4   Blackf. 
(Ind.)    286,  30  Am.   Dec.  658. 

That  the  lessee  is  entitled  to  con- 
tinue the  lease  for  an  additional 
period  gives  him  no  right  to  take 
the  crops,  he  having  left  before  tho 
end  of  the  original  term.  Bain  v. 
Clark,  10  Johns.  (N.  Y.)  424; 
Dircks  v.   Brant,  56  Md.  500. 

In  North  Dakota  (Rev.  Codcj 
1905,  §  4800)  and  South  Dakota 
(Civ.  Code  1908,  §  280),  the  statute 
provides  that  a  tenant  for  years,  as 
well  as  one  at  will,  may  "cultivate 
and  harvest  the  crops  growing  at 
the  end  of  his  tenancy." 

65  As  when  the  lessor  has  merely 
an  estate  for  life  and  dies  before 
the  crops  are  harvested.  Co.  Litt. 
55  b;  Bro.  Abr.,  Emblements,  pi.  6. 
The  same  principle  has  been  applied 
when,  after  a  husband  had  leased 
his  wife's  land  to  another,  she  pro- 
cured a  divorce  a  vinculo,  his  es- 
tate thus  coming  t»  an  end,  and  ron- 
sequently  that  of  his  lessee  a]r:o. 
Goi-ld  V.  Webster,  1  Tyler  (Vt.) 
409. 

r.c  As  when  a  lea?e  is  for  years  si 
tamdiu  vixerit,  and  the  tenant, 
after  sowing,  dip?  br?foro  severance 
of  the  crop.  1  Rolle's  Abr.,  Emble- 
ments, pi.  12,  p.  727.  So  the  tenant 
has  been  held  to  be  entitled  to  em- 
blements when  the  tenancy  came  to 
an  end  by  reason  of  a  provision 
terminating   it   on    notice   from    the 


§251 


DOCTRINE  OP  EMBLEMENTS. 


1G37 


The  landlord  maj'  validly  stipi^.late  that  the  tenant  for  years 
shall  have  the  right  to  harvest  the  crop  after  the  end  of  the 
term,^^  and  he  may,  it  has  been  in  one  case  decided,  by  his  con- 
duct in  inducing  the  tenant  to  plant  a  particular  crop,  become 
estopped  to  deny  the  right  of  the  latter  to  harvest  such  croj) 
after  the  term.-''^ 

Though  the  doctrine  of  emblements  is  not  ordinarily  applied  in 
favor  of  a  tenant  for  years  after  the  end  of  the  term,  a  custom 
that  such  tenant  shall  take  his  crops,  not  harvested  by  him  during 
the  term,  has  been  recognized  and  given  effect  in  several  juris- 
dictions, such  a  customary  right  being  known  as  the  right  to 
"waygoing  (or  away  going)  crops."  In  England  the  custom 
which  controls  in  this  respect  is  that  of  the  particular  locality  or 
neighborhood,^^  while  in  several  states  in  this  country  such  a 


landlord  to  that  effect  (Stewart  v. 
Doughty,  9  Johns.  [N.  Y.]  108)  and 
on  a  sale  by  the  landlord  (Comfort 
V.  Duncan,  1  Miles  [Pa.]  229;  Plan- 
ner V.  Sturmer,  40  How.  Pr.  [N.  Y.l 
401).  In  Toles  v.  Meddaugh,  106 
Mich.  398,  64  N.  W.  329,  37  L.  R.  A. 
561,  58  Am.  St.  Rep.  499,  it  was 
held  that  a  tenant  who  agreed  to 
relinquish  possession  upon  a  sale 
by  the  landlord  could  nevertheless 
retain  possession  after  such  sale  till 
he  had  harvested  and  threshed  his 
wheat. 

The  North  Carolina  statute  (Re- 
visal  1905,  §  1990)  provides  that  if 
a  lease  for  years  comes  to  an  end 
"by  the  happening  of  an  uncertain 
event  determining  the  estate  of  the 
lessor,  the  tenant,  in  lieu  of  emble- 
ments, shall  continue  his  occupation 
to  the  end  of  the  current  year,"  he 
paying  a  proportional  rent  for  such 
continued  occupation  and  being  al- 
lowed for  the  seed  and  tillage  of  any 
crop  not  gathered  by  him.  This  ap 
plies  to  a  lease  for  a  year  only  as 
well  as  to  one  for  a  longer  time. 
King  V.  Foscue,  91  N.  C.  116.  The 
English  statute  (14  &  15  Vict,  c.  25 


§  1)   is  substantially  similar,  but  is 
not  restricted  to  leases  for  years. 

57  See  Hyatt  v.  Griffiths,  17  Q.  B. 
505;  Caldecott  v.  Smythies,  7  Car.  & 
P.  808;  Stoddard  v.  Waters,  30  Ark. 
156;   Hudson  v.  Porter,  13  Conn.  59. 

In  Kelley  v.  Todd,  1  W.  Va.  197, 
a  stipulation  that  the  land  should 
be  sown  in  wheat  and  timothy  the 
last  autumn  of  the  term  was  con- 
strued as  being  intended  for  the 
benefit  of  the  tenant,  entitling  him 
to  the  wheat  growing  at  the  term- 
ination of  the  lease,  which  occurred 
in  the  spring.  The  decision  was  in 
part  based  on  Mason  v.  Moyers,  2 
Rob.  (Va.)  606,  where  a  like  con- 
struction was  placed  on  a  lease  pro- 
viding that  the  tenant  was  not  to 
farm  "more  than  one-half  of  the 
cleared  land  in  a  year,"  and  that, 
"at  any  time  he  should  give  up  the 
land,  the  one-half  was  to  be  clear 
(that  is,  of  a  crop)  and  ready  for 
tillage." 

58  Carmine  v.  Bowen,  104  Md.  198, 
64  Atl.  932. 

59  See  Wigglesworth  v.  Dallison,  1 
Doug.  205;  Boraston  v.  Green,  16 
East.  71. 


1638 


CROPS. 


§251 


custom  in  favor  of  the  tenant  has  been  recognized  as  common  to 
the  whole  state.^*^  In  one  state,  on  the  otlier  hand,  the  possi- 
bility of  the  existence  of  a  legal  custom  to  that  effect  has  been 
denied,  on  the  ground  that  a  custom  must  be  immemorial,  and 
that  this  is  not  possible  in  this  country. ®i  Such  a  custom  would 
not  prevail  in  opposition  to  express  stipulations  of  the  lease  bear- 
ing on  the  subject.^2 

The  etfect  of  the  common-law  rule,  that  a  tenant  for  a  certain 
time  is  not  entitled  to  the  crop  unmatured  at  the  termination  of 
the  tenancy,  taken  in  connection  with  the  rule  that  a  lease  of 
land  gives  the  tenant  the  right  to  the  crops  thereon  at  the  time 


60  In  Delaware  it  is  said  that  the 
tenant  is  entitled  by  custom  to  the 
wheat  crop,  but  not  to  the  crop  of 
oats.  Templeman  v.  Biddle,  1  Har. 
522.  Clark  v.  Banks,  6  Houst.  584, 
is  to  the  effect  that  the  custom  ap- 
plies generally  to  grain  sown  in  tho 
fall;  and  in  Ellison  v.  Dolby,  3  Penn. 
45,  49  Atl.  178,  it  is  asserted  that 
the  off-going  tenant  has  the  right  to 
the  crop. 

In  New  Jersey  the  tenant  Is  ordin- 
arily entitled  to  the  away-going  crop 
(Van  Doren  v.  Everitt,  5  N.  J.  Law 
[2  Southard]  460,  8  Am.  Dec.  615; 
Corle  V.  ^Tonkhouse,  47  N.  J.  Eq.  73, 
20  Atl.  367;  Reeves  v.  Hannan,  65 
N.  J.  Law,  249,  48  Atl.  1018),  but 
the  custom  has  been  held  not  to  ex- 
tend to  a  crop  sown  in  March  when 
the  term  was  to  expire  in  April 
(Howell  V.  Schenck,  24  N.  J.  Law 
[4  Zab.]  89). 

In  Ohio  the  tenant's  right  has 
been  regarded  as  dependent  on  the 
custom  of  the  neijrhborhood.  Fos- 
ter V.  Robinson.  6  Ohio  St.  90. 

In  Pennsylvania  the  tenant  has 
the  right  to  the  away-going  crop  by 
force  of  custom.  Stultz  v.  Dickey,  5 
Bin.  285,  6  Am.  Dec.  411;  Forsythe 
V.  Price,  8  Watts,  282,  34  Am.  Dec. 
465;  Shaw  v.  Bowman,  91  Pa.  414. 
But  the  custom  has  been  held   not 


to  apply  in  the  case  of  a  crop  plant- 
ed in  the  spring,  just  before  the  end 
of  the  term.  Demi  v.  Bossier,  1 
Pen.  &  W.  224.  The  fact  that  the 
tenant  has  lost  his  possession  by 
reason  of  the  execution  of  a  writ  of 
habere  facias  under  a  judgment  in 
ejectment  does  not  affect  his  right 
to  the  away-going  crop.  Biggs  v. 
Brown,  2  Serg.  &  R.  14. 

In  North  Carolina  the  tenant's 
right  to  an  away-going  crop  of  crude 
turpentine  was  recognized  in  Lewis 
V.  McNatt,  65  N.  C.  63. 

Bi  Harris  v.  Carson,  7  Leigh  (Va.) 
632,  30  Am.  Dec.  510.  The  same 
view  is  indicated  in  Burrowes  v. 
Cairns,  2  U.  C.  Q.  B.  288.  But  In 
England,  it  seems,  an  immemorial 
custom  is  not  regarded  as  necessary 
for  this  purpose,  a  common  usage  of 
the  neighborhood  being  sufficient. 
See  Senior  v.  Armytage,  Holt,  N.  P. 
197. 

62  Wigglesworth  v.  Dallison,  1 
Doug.  201;  1  Smith's  Leading  Cases 
(11th  Ed.)  545,  and  notes;  Boraston 
V.  Green,  16  East,  71.  The  custom 
has  been  regarded  as  excluded  by  a 
covenant  on  the  part  of  the  lessee 
to  give  up  the  land  at  the  end  of 
the  term.  Burrowes  v.  Cairns,  2  V. 
C.  Q.  B.  288;  Kaatz  v.  White,  19  U. 
C.  C.  P.  36. 


s  251  DOCTRINE  OF  EMBLEMENTS.  1639 

of  the  lease,*53  jg^  jt  seems,  to  give  to  the  tenant  under  a  lease 
a  right  to  crops  planted  by  a  prior  tenant  for  years,  not  harvested 
at  the  termination  of  the  first  tenancy  or  at  the  commencement 
of  the  new  tenancy.  In  a  recent  case,  however,  the  contrary  view 
was  adopted,  that  the  incoming  tenant  is  not  thxis  entitled  to  a 
crop  planted  by  the  outgoing  tenant,  on  the  theory,  apparently, 
that  such  crop  belongs  to  the  latter,  and  that  his  mere  failure 
to  remove  it  cannot  transfer  the  title  to  the  former.*^^  The  as- 
sumption that,  because  the  crop  is  planted  by  the  outgoing  ten- 
ant, it  is  his  crop,  is  opposed  to  the  common-law  view  of  the  sub- 
ject, which  regards  the  person  entitled  to  the  possession  of  land 
as  ordinarily  the  person  entitled  to  the  crops  thereon.  The  posi- 
tion of  a  tenant  for  years  whose  tenancy  comes  to  an  end,  and 
who  relinquishes  or  is  expelled  from  possession  before  he  has 
gathered  the  crop  planted  by  him,  seems  analogous  to  that  of 
a  disseisor  who  is  expelled  before  he  has  gathered  the  crop 
planted  by  him.  It  is  not  his  crop  merely  because  he  planted 
it.<55 

(5)  Tenant  from  year  to  year.  It  has  been  decided  in  Eng- 
land that  a  tenant  from  year  to  year,  whose  estate  is  terminated 
by  notice  from  the  landlord,  is  entitled  to  emblements,  in  view 
of  the  uncertainty  as  to  whether  the  landlord  will  give  the  legal 
notice  to  quit  in  any  year.^^  In  this  country  the  right  of  such 
a  tenant  to  emblomcnts  has  been  denied.^^  In  one  case  the  rule 
is  asserted  to  be  that  he  is  entitled  to  emblements  which  result 
from  his  sowing  before  the  receipt  of  the  notice  to  quit,  and  not 
so  entitled  to  crops  sown  thereafter,^'^  and  this  seems  to  accord 
with  the  ordinary  rules  bearing  on  the  subject. 

(6)  Tenant  at  sufferance.  One  who  wrongfully  retains  pos- 
es See  ante,  §  249.  es  Kingsbury  v.  Collins,  4  Bing 
64Meffert    v.    Dyer,    107   Mo.    App.    202.     See  Haines  v.   Welch,  L.  R.  4 

462,  81  S.  W.  643.     The  fact  that  the  c.  P.  91. 

crop  was  matured  is  referred  to  as        er  Gossett  v.  Drydale,  48  Mo.  App. 

tending  to  make  it  personalty,  and  ^oq.    sanders  v.  Ellington,  77  N    C 

the  fact  that  the  second  lessee  knew  355.     i^  Pennsylvania  such  a  tenant 

of   the   first   lessee's   claim    to   such  .       .         ^^      .  ,  .  , 

^       .        ^^    ^  IS  given  the  right  by  custom.     Clark 
crop  is  referred  to  as  showing  that        ^^  ^    _ 

,  1  ■,        ^  ,    .*  .v.  Harvey,  54  Pa.  142. 

he   could   not   regard   it  as   passing 

under  his  lease.  ''  ^^^der  v.   Sayre,  70  N.  Y.  180. 

65  See    cases    cited    12    Cyclopedia    26  Am.  Rep.  567. 
Law  &  Proc.  977. 


1640  ^^OP^-  §  -''^ 

session  of  land  after  his  ri^'litful  tenaney  nnder  a  lease  has  come 
to  an  end,  a  "tenant  at  sulTerance,"«^  has  no  right  to  the  crops 
then  growing  on  the  land  by  reason  of  such  retention  of  posses- 
sion.'O  Were  the  rule  otherwise,  a  tenant  for  years  could  obtain 
a  rif,'ht  to  emblements  by  merely  holding  over  his  term.  If  he 
actually  severs  the  crops,  however,  he  would  apparently,  in  juris- 
dictions in  which  a  disseisor  is  res^arded  as  entitled  to  crops  sev- 
ered by  him,'i  likewise  obtain  title  to  such  crops,^'-  and  the  land- 
lord would  in  such  case  be  relegated  to  an  action  for  mesne  profits 
to  recover  the  value  of  the  crops,  or  an  action  for  the  use  and 
occupation  of  the  landJ^ 

d.  Effect  of  forfeiture  by  tenant.  A  tenant  whose  estate  is 
terminated  by  his  own  act  or  default,  as  when  he  is  guilty  of 
a  breach  of  condition  subsequent  and  the  landlord  re-enters  there- 
for, cannot  ordinarily  assert  any  right  to  emblements."^*     As  has 

CO  See  ante,   §  15.  °o  modern  English  decision  on  this 

70  In  Doe  d.  Bennett  v.  Turner.  7  point.  The  year  book  decisions  on 
Mees  &  W  226,  it  is  said  by  Parke,  the  question  whether  a  disseisor  Is 
B  that  a  tenant  at  sufferance  has  entitlpd  to  the  crops  are  collected  In 
no  right  to  emblements.  The  view  Viner's  Abridgement,  Emblements, 
that  a  tenant  at  sufferance  is  not  p.  48,  51-57.  The  cases  and  dicta 
entitled  to  the  crops  is  also  asserted  there  referred  to  are  in  irreconcil- 
in  Simpkins  v.  Rogers,  15  111.  397.  able  conflict,  but  rather  favor  on 
In  Baker  v  Mclnturff,  49  Mo.  App.  the  whole  the  view  that  a  trosfasser 
505  it  was  held  that  the  landlord  or  disseisor  cannot  claim  the  crops 
could  after  the  end  of  the  term,  sown  by  him  even  though  he  has 
though  the  tenant  retained  posses-  severed  them  before  re-entry  by  the 
sion  take  such  crops,  if  still  un-  disseisee,  and  to  this  effect  also  are 
severed   by  an  action  of  replevin.  Liford's  Case,  11  Coke,  51  b;  Anony- 

71  That  the  trespasser  or  disseisor  mous.  Dyer.  31  b,  Moore.  24.  Dalison. 
Is  entitled  to  crops  sowed  and  30;  Co.  Litt.  55  b.  This  view  is  re- 
harvested  by  him,  see  Brothers  v.  ferred  to  with  approval  in  Lane  v 
Hurdle  32  N  C.  (10  Ired.  Law)  490,  King.  8  Wend.  (N.  Y.)  584.  24  Am. 
51  Am'  Dec  400-  Faulcon  v.  John-  Dec.  105,  but  Stockwell  v.  Phelps, 
ston  102  N.  C.  264,  9  S.  E.  394.  11  34  N.  Y.  363..  90  Am.  Dec.  710.  fav- 
Am  '  St  Rep  737:  Stockwell  v.  ors  the  prevailing  American  view. 
Phelps  34  N  Y.  363.  90  Am.  Dec.  "  See  Wolcott  v.  Hamilton,  61  Vt. 
710-   p'age  V  'F\>wler,  39  Cal.  412,  2    79,  17  Atl.  39,  to  this  effect. 

Am'  Rep    462;  Jenkins  v.  McCoy.  50  "See  post,  §  306  d. 

Mo'  348;    Lindsay  v.  Winona   &  SI.  ^*  Co.   Litt.   55   b;    1   Rolle's   Abr.. 

p    R    Co     29   Minn.   411,   13  N.   W.  Emblements,  pi.  3;  Wicks  v.  Jordan, 

191  43  Am  St  Rep.  228;  Johnston  V.  2    Bulst.    213;    Oland    v.    Burdwick, 

Fish    105   Cal    420,   38   Pac.   979,   45  Cro.  Eliz.  460;   Bulwer  v.  Bulwer,   2 

Am  'st   Rep   53.     There  seems  to  be  Barn.  &  Adol.  470;   Davis  v.  Eyton. 


§251 


DOCTRINE  OF  EMBLEMENTS. 


1641 


been  remarked,  under  a  contrary  rule,  a  tenant,  having  sown  his 
crop,  would  have  little  or  no  object  in  complying  with  his  stipu- 
lations.'^  There  are,  however,  decisions  in  two  states  which  as- 
sert a  contrary  view,  to  the  effect  that  the  forfeiture  of  the  lease- 
hold does  not  affect  the  tenant's  right  to  the  crop.'^« 

It  has  been  decided  in  New  York  that  when  the  forfeiture  was 
enforced  by  the  bringing  of  an  action  of  ejectment  by  him,  the 
landlord  was  to  be  regarded  as  having  taken  possession  at  the 
time  of  the  commencement  of  such  action,  and  that  crops  matur- 
ing thereafter,  though  harvested  before  the  landlord  was  put 
in  possession,  could  not  be  removed  by  the  tenant."^^  This  view 
has  been  questioned,  however,  and  there  is  in  another  jurisdic- 
tion a  decision  that  no  such  principle  is  applicable  when  the 
landlord  brings  a  proceeding  to  recover  possession  for  nonpay- 
ment of  rent,  not  by  force  of  an  express  provision  in  the  lease, 
but  under  the  statute  authorizing  recovery  of  possession  on  this 


7  Bins.  154;  Russell  v.  Moore,  8  L. 
R.  Ir.  318;  Samson  v  Rose,  65  N.  Y. 
411;  Kiplinger  v.  Green,  61  Mich. 
S40,  28  N.  W.  121,  1  Am.  St.  Rep. 
584;  Cheney  v.  Bonnell,  58  111.  268; 
Myer  v.  Roberts.  50  Or.  81,  89  Pac. 
1051.  12  L.  R.  A.  (N.  S.)  194,  126 
Am.  St.  Rep.  733;  Gregg  v.  Boyd, 
69  Hun,  588,  23  N.  Y.  Supp.  918. 

75  Hunter  v.  Jones,  2  Brewst. 
(Pa.)  370;  Id,,  7  Phila.  (Pa.)  233. 
And  see  ante,  §  194  i  (2),  at  note 
246. 

76  Collier  v.  Cunningham,  2  Ind. 
App.  254,  28  N.  E.  341;  Koeleg  v. 
Phelps,  80  Mich.   466,  45  N.  W.  350. 

77  Samson  v.  Rose,  65  N.  Y.  411, 
citing  Hodgson  v.  Gascoigne,  5  Barn. 
&  Aid.  88;  Doe  d.  Upton  v.  V/ither- 
wick,  3  Bing.  11,  10  Moore,  267;  Ad- 
ams, Ejectment  (4th  Ed.)  416;  Tyler, 
Ejectment,  590.  In  reference  to 
these  citations,  it  may  be  said  that 
in  Hodgson  v.  Gascoigne,  5  Barn.  & 
Aid.  88,  only  crops  which  were  still 
growing  at  the  time  of  the  issu- 
ance of  the  writ  of  dispossession 
were   involved.     And  in  Doe  d.  Up- 


ton  V.   Witherwlck,   3   Bing.   11,    10 
Moore,  267,  the  question  was  wheth- 
er   the   court   would    direct   its   pro- 
thonotary  to  ascertain  the  value  of 
several  crops  which  had  been  taken 
by  the  landlord,  along  with  the  land, 
under  a  writ  of  habere  facias,  and 
require    the    landlord    to    pay    such 
value    to   the   tenant,    and   this   the 
court  refused  to  do,  holding  that  any 
rights  in  the  tenant  as  to  the  crops 
must    be    asserted    by    action.     The 
statement  in  Adams,   Ejectment,   Is 
based    on    these   two    cases    merely, 
and  that  In   Mr.   Tyler's   work  also 
cites  no  other  authority.     See  the  re- 
marks on  these  citations  In  Brothers 
V.  Hurdle,  32  N.  C.   (10  Ired.  Law) 
490,  51  Am.  Dec.  400;   Woodcock  v. 
Carlson,  41  Minn.  542,  43  N.  W.  479. 
The  New  York  case  is,  however,  in 
great   part   at   least,   based   on   the 
express  statute  of  that  state  making 
the  service  of  the  declaration  in  an 
action  of  ejectment  brought  by  the 
landlord  for  the  purpose  of  enforc- 
ing a  forfeiture  for   nonpayment  of 
rent  equivalent  to  a  re-entry. 


1642  CROPS.  §  251 

ground,  and  that  if  pending  appeal  in  such  statutory  proceeding 
the  tenant  harvests  his  crop,  the  landlord  cannot  assert  any  claim 
thereto  js  it  is  remarked  in  the  latter  case  that  '4t  is  difficult  to 
see  why,  on  principle,  a  more  severe  rule  should  be  applie;! 
against  a  tenant,  who  holds  over  after  his  term  expires,  or  after 
he  is  in  default  in  payment  of  rent,  than  is  applied  to  a  disseisor 
whose  entry  was  a  willful  trespass. '"^^-^i 

The  termination  of  a  tenant's  estate  by  reason  of  an  act  of 
forfeiture  on  his  part  will  not  usually  affect  a  subtenant's  right 
to  harvest  his  crops.^^ 

It  would  seem  that  if  a  tenant  is  not  entitled  to  take  the  crop 
after  his  tenancy  has  come  to  an  end,  whether  by  reason  of  the 
character  of  the  tenancy,  as  being  for  a  certain  period,  or  because 
the  termination  of  the  tenancy  is  the  result  of  his  own  act  or  de- 
fault, one  to  whom  he  has  previously  transferred  the  crop,  but 
who  has  not  harvested  it,  should  not  be  allowed  to  enter  for  that 
purpose  after  the  end  of  the  teuancy.^^  j^  qj^q  state,  however, 
it  is  the  rule  that  such  transferee  of  the  crop  is  entitled  to  claim 
the  crop  after  a  forfeiture  of  the  tenant's  interest  in  the  land,  al- 
though the  crop  is  still  growing  at  the  time  the  landlord  regains 
possession  of  the  land.^^ 

T8  Woodcock  V.  Carlson,  41   Minn.  Carney  v.  Mosher,  97  Mich.  554,   56 

542,  43  N.  W.  479.  N.     W.     935.       In     the     latter    ca.se 

79.81  Woodcock      V.      Carlson,      41  there    was,    however,    a    surrender 

Minn.   542,  43   N.   W.   479,   per   Mil-  and    not    a    forfeiture,    it    appears, 

chell,  J.  as    there    was    in    Nye    v.    Patter- 

82  See  ante,  note  51.  son,  35  Mich.  413,  cited  therein.     In 

83  Sanders  v.  Ellington,  77  N.  C.  this  .state  it  would  seem,  from  Koe- 
255;  Debow  v.  Colfax,  10  N.  J.  Law  leg  v.  Phelps,  80  Mich.  466,  45  N.  W. 
(5  Halst.)  128.  In  this  last  case  it  350,  that  even  the  tenant  himself  can 
is  said,  per  Ewing,  C.  J.,  that  the  take  the  crops  after  forfeiture, 
rule  that  one  who  terminates  his  It  has  been  decided  that  it  Is  im- 
estate  by  his  own  default  has  no  material,  as  regards  the  tenant's 
right  to  emblements  "would  be  right  to  crops,  that  he  is  not  a  party 
worthless  from  obvious  liability  to  to  the  foreclosure  proceeding.  Stan- 
evasion,  if  the  widow  might,  the  brough  v.  Cook,  83  Iowa,  705,  49  N. 
hour  before  her  marriage,  or  the  W.  lOia;  Reily  v.  Carter.  75  Miss, 
tenant  on  the  day  antecedent  to  his  798,  23  So.  435,  65  Am.  St.  Rep.  621; 
commission  of  waste,  avoid  the  con-  Downard  v.  Groff,  40  Iowa,  597.  St. 
sequence  of  those  acts  by  so  simple  John  v.  Swain,  14  N.  Y.  Supp.  743, 
a   device  as  the   sale   of  the   crop."  is  contra,  and  it  seems  questionable 

84  It  is  so  stated  in  Miller  v.  Hav-  whether  a  proceeding  divesting 
ens,  51  Mich,  482,  16  N.  W.  865,  and  rights    in    crops,    or    in    any    other 


§  252 


RIGHTS  AS  AGAINST  PRIOR  MORTGAGE.  1643 


§  252.    Tenant's  rights  as  against  prior  mortgage  or  paramount 
title. 

The  question  whether  a  tenant,  holding  under  a  lease  made 
after  the  making  of  a  mortgage  on  the  land,  can  claim  the  crops 
sown  by  him  as  against  one  who  has  obtained  title  to  the  land 
upon  a  foreclosure  of  the  mortgage,  has  been  the  subject  of  a 
number  of  decisions,  and  is  one  of  difficulty. 

Under  the  common-law  theory  of  a  mortgage,  as  vesting  the 
legal  title  in  the  mortgagee,  the  mortgagee  has,  in  the  absence 
of  a  stipulation  to  the  contrary,  the  right  to  take  possession  of 
the  land  at  any  time  without  notice,^^  and  it  has  been  decided 
that  the  mortgagor,  upon  such  dispossession  by  the  mortgagee, 
is  not  entitled  to  take  the  crops,  for  the  reason,  says  Lord  Mans- 
field, that  "all  is  liable  to  the  debt,"86  that  is,  "the  crop,  as  well 
as  the  land,  is  a  security  for  the  debt.''^^  This  view,  that  the 
mortgage  is  intended  to  cover  the  crops  as  well  as  the  land  itself, 
as  security  for  the  debt,  has  been  applied  in  numerous  cases  in 
this  country,  in  which  it  was  held  that  upon  foreclosure  of  a  mort- 
gage the  person  obtaining  title  thereunder,  by  sale  or  otherwise, 
is  entitled  to  the  crops  then  on  the  land  as  against  the  mortgagor, 
a  different  rule  being  applied,  however,  as  to  crops  already  sev- 
ered from  the  land.s^  In  several  states,  however,  it  has  been  de- 
cided that  a  purchaser  at  foreclosure  cannot  claim  the  crops  as 
against  the  mortgagor.  In  perhaps  two  states  such  decisions  in 
favor  of  the  mortgagor's  right  to  the  crops  are  based  primarily 
upon  the  provisions  of  the  local  statutes  requiring  that  the  land 
be  appraised  before  sale,  and  that  it  shall  be  sold  only  at  a  price 
bearing  some  proportion  to  its  appraised  value,  taken  in  con- 
nection with  the  fact  that  the  value  of  the  annual  crops  is  not 
included  in  the  appraisak^^  Occasionally  such  decisions  have 
been  based  upon  the  ground  that,  in  the  particular  jurisdiction, 

property,     should     be     effective     as  261,  7  S.  E.  669;  Thompson  v.  Union 

against    one    not    a    party    thereto.  Warehouse  Co.,  110  Ala.  499,  18  So. 

See  ante,  §  73  c,  at  notes  137,  138.  105;  1  Jones,  Mortgages,  §  697. 

85  See  ante,  §  73  a  (2).  ss  See    Jones,    Mortgages,    §§    697, 

86  Keech  v.  Hall,  1  Doug.  21.  1116,     1658,    and    authorities    there 
8T 1  Powell,  Mortgages,  156.  15S  b,  cited. 

Coventry's  notes.  See  Oilman  t  so  Cassilly  v.  Rhodes,  12  Ohio,  88, 
Wills,  66  Me.  273;  Jones  v.  Hill,  64  40  Am.  Dec.  4^61 ;  Hcuts  v.  Showalter, 
N.  C.  198;   Coor  v.  Smith,  101  N.  C.    10   Ohio   St.    125;    Foss  v.   Marr,   40 


1644  CROPS.  §  252 

a  mortgage  does  not  vest  the  legal  title  in  the  mortga.c^ee,  but 
constitutes  merely  a  lien.''®  Elsewhere,  however,  it  has  bf^en  re- 
marked that  "the  fact  that  the  right  to  ejectment  is  taken  away 
from  the  mortgagee  by  the  statute  and  the  mortgage  reduced  to 
a  mere  chose  in  action  secured  by  lien  upon  the  land,  while  the 
defeasance  remains  effectual,  does  not  seem  to  have  any  essential 
bearing  upon  the  question,  inasmuch  as  the  perfecting  of  title 
under  it  has  relation  to  the  time  it  became  a  lien,"^^  and  since 
the  common-law  rule  in  this  regard  appears  to  have  been  based, 
not  on  the  fact  that  the  mortgagee  has  the  legal  title,  but  rather 
upon  the  theory  that  the  crop  is  intended  to  be  included  in  the 
security ,^2  the  view  asserted  in  the  language  quoted  has  certainly 
much  in  its  favor.  The  opposite  view  seems  to  involve  the  as- 
sumption that  the  statutory  change  in  the  nature  of  a  mortgage 
involves  a  change  in  the  intention  of  the  parties  as  to  wh other 
the  crops  are  to  be  included  in  the  security.  In  two  or  tliree 
states  it  has  been  decided  that  if  the  crops  are  matured,  they 
are  to  be  regarded  as  in  the  same  position  as  if  severed,  and  that 
consequently  the  foreclosure  sale  passes  title  only  to  unmatured 
crops.^3 

Such  being  the  divergent  views  as  to  the  rights  of  the  mort- 
gagor to  crops  planted  by  him,  it  is  but  to  be  expected  that  a 
like  divergence  should  exist  as  to  the  right  of  a  tenant  under  a 
lease,  made  by  the  mortgagor  subsequently  to  the  mortgage, 
as  to  the  crops  planted  by  such  tenant.     In  England  the  right  of 

Neb.  559,   59  N.  W.  122;    Monday  v.  Pac.   153,     17  L.  R.  A.   284,  33  Am. 

O'Neil,  44  Neb.  724,  G3  N.  W.  32,  4S  St.  Rep.  373;  Reed  v.  Swan,  133  Mo. 

Am.  St.  Rep.  760.  100,  34  S.  W.  4S3;   Reily  v.  Carter, 

90  See  "Willis  v.  Moore,  59  Tex.  628,  75  Miss.  798,  23  So.  435,  65  Am.  St. 
46  Am.  Rep.  284;  Heavilon  v.  Farm-  Rep.  621.  So  where  the  mortgaso 
ers'  Bank,  81  Ind.  249.  And  see  expressly  included  "the  rents,  Issues 
cases  cited  post,  note  106.  and    profits."     Montgomery   v.    Mer- 

91  Batterman  v.  Albright,  122  N.  Y.  rill,  65  Cal.  432,  4  Pac.  414. 
484,  25  N.  E.  856,  11  L.  R.  A.  800,  19        02  Sso  ante,  notes  86,  87. 

Am.  St.  Rep.  510,  per  Bradley,  J.     In  93  Hecht  v.  Dettman,  56  Iowa,  679, 

other  states,  also,  in  which  the  mort-  7  N.  W.  495,  10  N.  W.  241,  41  Am. 

gagee   has    not   the    legal   title,   the  Rep.  131;  Everingham  v.  Braden,  58 

porchaser    at    foreclosure   has    been  Iowa,  133,  12  N.  V/.  142;  First  Nat. 

given    the    crops.     See    Downard    v.  Bank  v.  Beegle,  52  Kan.  709,  35  Pac. 

Groff,  40  Iowa,  597;  Wheeler  v.  Kirk-  814,  39  Am.  St.  Rep.  365;   Porche  v. 

endall.  67  Iowa,  612.  25  N.  W.  829;  Bodin,  28  La.  Ann.  761. 
Cfoodwin  v.   Smith,  49  Kan.   351,  31 


§252 


llIGHTS  AS  AGAINST  PRIOR  MORTGAGE. 


lG4i 


the  mortgagor's  ten?.nt  to  crops  planted  by  him  has  been  denied 
by  the  textbook  writers  on  the  ground  that  he  is  in  the  position 
of  a  disseisor,  a  mortgagor  allowed  to  remain  in  possession  having 
no  right  to  make  leases,  and  that  consequently,  upon  entry  by 
the  mortgagor,  it  is  as  if  a  disseisee  had  re-entered  upon  a  dis- 
seisor.^^ There  seoms  to  have  been  no  actual  decision  in  that 
country  on  the  question  whether  the  tenant  is  so  entitled.^^  In 
this  country,  also,  the  right  of  the  mortgagor's  tenant  to  crops, 
as  against  one  claiming  under  foreclosure,  has  been  denied  in  a 
number  of  cases,  usually  upon  the  ground  that  the  mortgagor 
cannot,  by  a  lease,  give  to  another  a  right  in  this  respect  which 
he  has  not  himself.*"*  Conversely,  in  several  states  in  which  the 
mortgagor  is  regarded  as  entitled  to  the  crops,  the  same  right 
has  been  recognized  in  his  tenant.^'^ 


M  Powell,  Mortgages,  158,  161  a, 
Coventry's  notes;  Coote,  Mortgages 
(4th   Ed.)    706. 

»5  In  Keech  v.  Hall,  1  Doug.  22, 
Lord  Mansfield  refused  to  decide 
this  question. 

99  I^ane  v.  King,  8  Wend.   (N.  Y.) 
584,    24    Am.    Dec.    105;    Howell    v. 
Schenck,  24  N.  J.  Law  (4  Zab.)   89; 
Reily  v.  Carter,  75  Miss.  798.  23  So 
435.   65   Am.   St.   Rep.   621;    Reed   v. 
Swan.   133   Mo.   100.   34  S.   W.   483 
Fowler   v.   Carr,   63   Mo.   App.   486 
Downard    v.    Groff,    40     Iowa,    597 
Martin  v.  Knapp,  57  Iowa.  336.  10  N. 
W.   721:    Wheeler  v.   Kirke-ndall,   67 
Iowa.  612.  25  N.  W.  829;  Sfanbroush 
V.  Cook.  83  Iowa,  705.  49  N.  W.  1010; 
Goodwin  v.   Smith.  49  Kan.   351,  31 
Pac.  153,  17  L.  R.  A.  284,  33  Am.  St. 
Rep.  373. 

97  It  is  so  decided  in  Heavilon  v. 
Farmers'  Bank,  81  Ind.  249,  distin- 
guishing Jones  V.  Thomas.  8  Blackf. 
(Ind.)  428,  contra,  as  having  been 
decided  when  the  legal  title  was  re- 
garded as  in  the  mortgagee.  It  is 
here  said  that  probably  the  tenant 
could  not  claim  crops  planted  by 
him  after  the  foreclosure  sale  was 


made,  or.  perhaps,  advertised.  In 
Monday  v.  O'Neil,  44  Neb.  724.  63  N. 
W.  32,  48  Am.  St.  Rep.  760,  the  ten- 
ant was  given  crops  planted  after 
the  decree  of  foreclosure,  but  there 
the  purchaser  at  foreclosure  sale 
had  permitted  him  to  retain  posses- 
sion until  after  the  crop  was  harv- 
ested by  him.  In  Brown  v.  Leath, 
17  Tex.  Civ.  App.  262,  42  S.  W.  655, 
44  S.  W.  42,  the  lease  of  the  land 
seems  to  be  regarded  as  effecting 
a  sevorance  of  the  crops,  so  as  to 
take  ihem  from  out  of  the  opera- 
tion of  the  mortgage.  Occasionally 
the  tenant's  right  to  the  crops  is 
based  on  the  appraisement  law. 
Cassilly  v.  Rhodes,  12  Ohio,  88,  40 
Am.  Dec.  466.  See  Monday  v. 
O'Neil,  44  Neb.  724,  63  N.  W.  32,  48 
Am.  St.  Rep.  700,  ante,  note  89. 

In  Hecht  v.  Dcttman,  56  Iowa,  679, 
7  N.  W.  495. 10  N.  W.  241,  41  Am.  Rep. 
131;  Richards  v.  Knight,  78  Iowa, 
69,  42  N.  Y/.  284,  4  L.  R.  A.  453; 
Caldwell  v.  Alsop,  48  Kan.  571,  29 
Pac.  1150,  17  L.  R.  A.  782;  Porche 
V.  Bodin,  28  La.  Ann.  761,  the  mort- 
gagor's tenant  "was  re,»?arded  as  en- 
titled to  the  crops  sown  by  him  on 


161G 


CROPS. 


§  252 


If  the  tenant  has  actually  severed  the  crops  before  such  pur- 
chaser acquires  title  or  possession,  he  may,  aeeordin'^  to  cases 
in  this  country,  retain  them  as  afjainst  such  purchaser,"^  and  ac- 
cording to  a  few  decisions  a  constructive  severance,  by  a  con- 
veyance or  transfer  to  a  third  person,  is  sufficient  to  divest  the 
rifjhts  of  the  purchaser  at  foreclosure  sale."''  In  one  state  tho 
statute  expressly  reserves  the  tenant's  right  to  the  crops  as 
against  a  purchaser  at  a  sale  under  a  power  in  a  mortgage. '<*•' 

Occasionally,  in  discussing  the  tenant's  rights,  it  has  been  sug- 
gested or  stated  that,  as  liis  estate  comes  to  an  end  at  a  time  wiiich 
he  could  not  have  ascertained  at  the  time  of  planting  the  crops, 
and  without  any  act  on  his  part  to  produce  this  result,  the  com- 
mon-law  doctrine    of    emblements* ^^    should    be    ai)i)lied    in    his 


the  ground  that  they  were  matured 
at  the  time  of  the  foreclosure  sale. 
See  ante,  note  93. 

98  Johnson  v.  Camp,  51  111.  219 
(but  compare  Anderson  v.  Strauss, 
98  III.  485);  Allen  v.  Elderkin.  62 
Wis.  627.  22  N.  W.  842;  Yeazel  v. 
White.  40  Neb.  422.  24  L.  R.  A.  449; 
Reily  v.  Carter,  75  Miss.  798,  23  So. 
435.  65  Am.  St.  Rep.  621.  It  is  so 
decided  in  Gray  v.  Worst,  129  Mo. 
122.  31  S.  W.  585,  but  there  the  deci- 
sion is  based  on  the  special  lan^iage 
of  the  statute.  In  Gregory  v.  Rosen- 
krans.  72  Wis.  220.  39  N.  W.  378.  1 
L.  R.  A.  176,  this  rule  was  applied 
In  favor  of  a  tenant  in  connection 
with  an  "ice  crop"  cut  by  him,  as 
against  a  purchaser  at  foreclosure. 

99  Dail  V.  Freeman,  92  N.  C.  351; 
Hershey  v.  Metzgar,  90  Pa.  217.  See 
Caldwell  v.  Alsop,  48  Kan.  571,  29 
Pac.  1150,  17  L.  R.  A.  782;  Willis 
V.  Moore,  59  Tex.  628,  46  Am.  Rep. 
284.  But  eee  to  the  contrary  Bat- 
terman  v.  Albright.  122  N.  Y.  484, 
25  N.  E.  856,  11  L.  R.  A.  800,  19  Am. 
St.  Rep.  510;  Sexton  v.  Breese,  135 
N.  Y.  387,  32  N.  E.  133;  Shepard  v. 
Philbrick,  2  Denio  (N.  Y.)  174; 
Beckman  v.  Sikes,  35  Kan.  120,  10 
Pac.   592,   57  Am.  Rep.   145;    Ander- 


son T.  Strauss.  98  111.  485;  Thomp- 
f5on  V.  Union  Warehouse  Co.,  110 
Ala.  499.  18  So.  105. 

i'>oMis.souri  Rev.  St.  1809.  §  4355. 
See  Reed  v.  Swan.  133  Mo.  100,  34 
S.   W.   483. 

In  Pennsylvania  the  provisions  of 
the  execution  law  of  that  state  that 
the  lessee  in  posspssion  at  the  time 
of  the  sheriff's  deed  should  become 
the  tenant  of  the  purchaser,  and  that 
he  should  give  up  possession  in 
three  months  on  notice  from  the 
purchaser,  '.vere  regarded  as  making 
him  in  effect  a  tenant  at  will  of  the 
purchaser  and  as  so  entitling  him  to 
emblements,  though  sowing  after 
the  sale.  Bittinger  v.  Baker,  29  Pa. 
66,  70  Am.  Dec.  154.  That  this  deci- 
sion is  based  on  the  local  statute 
(see  Adams  v.  McKesson's  Ex'r,  53 
Pa.  81.  91  Am.  Dec.  183)  is  lost  sight 
of  in  Dollar  v.  Roddenbery,  97  Ga. 
148,  25  S.  E.  410,  and  Hoavilon  v. 
Farmers'  Bank,  81  Ind.  249,  whore 
it  is  cited  as  sustaining  the  proposi- 
tion that,  apart  from  any  statute, 
the  tenant's  rights  take  precedence 
of  those  of  a  purchaser  at  a  sale  un- 
der a  judgment  prior  to  the  lease. 

101  See  ante,  §   251. 


^252 


RIGHTS  AS  AGAINST  PRIOR  MORTGAGE.  1647 


favor.^*^2  Accordinp:  to  this  view,  a  tenant  of  a  mort^jagor,  who 
has  planted  and,  through  the  mortgragor 's  default,  has  been  en- 
tered upon  by  the  mortgagee  or  by  a  purchaser  at  a  sale  under 
the  mortgage,  is  to  be  regarded  as  in  a  position  analogous  to  that 
of  the  lessee  of  a  person  having  a  life  estate  during  widowhood, 
who,  owing  to  the  life  tenant's  marriage,  is  entered  on  by  the  re- 
main.lcrman,  such  lessee  being,  as  before  stated,^"*  entitled  to 
cmblemonts.  On  this  theory,  a  tenant  of  a  mortgagor  might  be 
regarded  as  entitled  to  his  crops  even  in  a  jurisdiction  where  the 
right  wouM  be  denied  to  the  mortgagor  hiraself.*^^  The  difii- 
culty,  however,  remains,  that  if  the  crops  are  to  be  regarded  as 
an  integral  part  of  the  st'eurity,^*^^  the  mortgagor  should  not 
be  at  liberty  to  lessen  this  security  by  making  a  lease  and  so 
enabling  the  lessee  to  take  the  crops,  while  himself  receiving  their 
equivalent  in  rent.  It  does  not  seem  that  one  acquiring  a  limited 
estate  from  the  mortgagor,  and  so  becoming  his  tenant,  should 
be  in  any  better  position  than  one  acquiring  a  fee  simple  estate 
from  the  mortgagor.  In  both  cases  he  should  take  subject  to 
the  rights  of  the  mortgagee,  provided  he  has  actual  or  construc- 
tive notice  thereof. 

The  tenant  of  a  judgment  debtor  has,  in  at  least  two  jurisdic- 
tions, been  given  the  rigiit  to  crops  as  against  a  purchaser  of  the 
land  umier  a  judgment  prior  to  the  lease,i"«  the  courts  adopting 
the  view,  which  has,  as  above  stated,"^'^  been  occasionally  assert- 

102  Heavilon  v.  Farmers'  Bank,  81        los  See  ante,  at  notes  86,  87. 

Ind.  249;  Hecht  v.  Dettman,  56  loo  Heavilon  v.  Farmers'  Bmk,  81 
Iowa,  679.  7  N.  W.  495,  10  N.  W.  241,  Ind.  249;  Dollar  v.  Roddenbery,  97 
41  Am.  R'^p.  131:  Yonnc;  v.  Chand-  Ga.  148,  25  S.  E.  410;  Blltch  v.  Lee, 
ler,  102  Me.  251,  66  Atl.  539;  Monday  115  Ga.  112,  41  S.  E.  275,  57  L.  R. 
V.  O'Neil.  44  Neb.  724,  63  N.  W.  32,  A.  752.  In  Dail  v.  Freeman,  92  N. 
48  Am.  St.  Rep.  760;  Dollar  v.  Rod-  C.  351.  the  deci.ion  that  the  pur- 
denbery,  97  Ga.  148,  25  S.  E.  410.  chaser  at  sale  under  the  Hen  Is  not 
See  Gray  v.  Worst,  129  ^To.  122,  31  S.  entitled  to  the  crops  is  based  on  the 
W.  585,  and  Bittinper  v.  Baker,  25  theory  that  there  was  a  prior  con- 
Pa.  66,  70  Am.  Dec.  154.  structive  severance  by  the  giving  of 

103  See  ante,   note   51.  an    agricultural    lien    on    the   crops. 

104  Such  seems  to  be  the  law  In  In  Bitiinger  v.  Baker,  29  Pa.  66.  70 
Pennsylvania.  See  Bittinger  v.  Am.  Dec.  154,  there  is  a  decision  to 
Baker,  29  Pa.  66,  70  Am.  Dec.  154;  that  effect,  based  on  a  local  statute. 
Miller  v.   Clement,  40  Pa.   484;    Mc-  An^e.  note  100. 

Keeby   v.    Webster,   170   Pa.   624,   32        i»-  See  ante,  at  note  90. 
AU.   1096. 


1648  CROPS.  §  253 

ed  in  the  case  of  a  mortgage,  that  where  there  is  a  lion  merely, 
without  any  legal  title  in  the  creditor,  a  sale  under  the  lien  does 
not  pass  the  crops. 

The  tenant  of  one  in  possession  adversely  to  the  rightful  owner 
has  presumably  the  same  rights  as  to  the  crops,  as  against  the 
latter,  as  his  hmdlord  would  have  had  if  the  lease  had  not  been 
made.  That  is,  according  to  the  decisions  in  this  country,  he 
would,  it  seems,  have  the  right  to  crops  severed  by  him  before 
re-entry  or  recovery  of  possession  in  ejectment  by  the  rightful 
owner,' 08  while  he  would  have  no  such  right  as  to  crops  which 
are  still  growing  at  the  time  of  his  dispossession.^'^® 
§  253.    Agreements  for  the  division  of  crops. 

a.  General  considerations.  AVe  have  in  another  place  consid- 
ered the  question  of  the  ditference  between  a  lease,  with  a  pro- 
vision that  a  share  of  the  crops  shall  go  to  the  lessor,  and  a  con- 
tract for  the  division  of  crops  between  the  landowner  and  the 
cultivator,  without  the  creation  of  the  relation  of  landlord  and 
tenant  between  them.'^''  AVe  shall  here  consider  the  nature  of 
the  relation  created  by  a  contract  of  the  latter  sort,  and  then 
discuss  the  rights  of  the  parties  as  to  the  crops,  before  their 
division,  in  the  case  both  of  a  lease  for  a  share  of  the  crops  and 
of  a  mere  "cropping  contract." 

The  view  is  quite  frequently  asserted,  expressly  or  by  implica- 
tion, that  if  the  cultivator  cannot,  in  the  particular  case,  be  re- 
garded as  the  tenant  of  the  landowner,  he  must  necessarily  sus- 
tain to  him  the  relation  of  a  servant  or  employee,  hired  to  do 
work  for  a  share  of  the  crops.' '^     Occasionally,  however,  it  is  as- 

108  See  cases  cited  ante,  note  71.  lessee  was  not  in  the  position  of  a 

109  Rowell  V.  Klein,  44  Ind.  290,  15  trespasser  because  he  acted  in  good 
Am.    Rep.     235.     See     Sedgwick    &  faith.     But  qv.acre  as  to  this. 
Wait,    Trial     of    Title     to    Land.  §  no  See  ante,  §§  10,  20. 

683,  and  cases  cited  12  Cyclopedia  m  Burgie  v.  Davis,  34  Ark.  179; 
Law  &  Proc.  977.  Tinsley   v.    Craige,    54   Ark.    346,    15 

In  McKean  v.  Smoyer,  37  Neb.  694,  S.  W.  897,  IG  S.  TV.  570;  Williams  v. 
56  N.  W.  492,  it  appears  to  have  Cleaver,  4  Houst.  (Del.)  453;  Chase 
been  decided  that  a  lessee  who  plant-  v.  McDonnell,  24  111.  236;  Gray  v. 
ed  a  crop  was  entitled  to  recover  it  Robinson,  4  Ariz.  24,  33  Pac.  712;  Gra- 
from  one  who  had  a  prior  lease  for  ham  v.  Houston,  15  N.  C.  (4  Dev. 
the  same  year  from  the  same  les-  Law)  232;  Richards  v.  Wardwell,  82 
sor,  and  who  was  consequently  en-  Me.  343,  19  Atl.  .»63;  Reeves  v.  Han- 
titled  to  possession  of  the  land.  The  nan,  65  N.  J.  Law,  249,  48  Atl.  1018; 
opinion   says   that   such   subsequent    McKenzie  v.  Sykes,  47  Mich.  294,  11 


§  253 


AGREEMENTS  FOR  DIVISION. 


1649 


serted  that  their  relation  is,  if  not  tliat  of  landlord  and  tenant, 
that  of  parties  to  a  joint  adventure,ii2  and  this  view  seems  more 
in  accordance  with  the  probable  intention  of  the  parties  in  the 
ordinary  case,  since  if  the  "cropper"  is  to  be  regarded  as  a 
servant  merely,  he  would,  it  seems,  be  subject  to  the  absolute  con- 
trol of  the  landowner  as  regards  the  manner  of  sowing  and  cul- 
tivating the  land,  and  his  failure  to  comply  with  the  latter 's  in- 
structions would  be  ground  for  the  termination  of  the  contract 
by  the  latter,  that  is,  for  the  servant's  discharge.  It  may,  how- 
ever, clearly  appear  from  the  contract  that  the  work  is  so  to  be 
done  under  the  supervision  and  control  of  the  landowner,  in  which 
case  it  is  most  properly  to  be  regarded  as  one  of  eraployment.^i^ 
An  agreement  of  this  character  by  which  the  landowner  and  the 
cultivator  are  to  divide  the  crops  between  them  does  not  make 
them  partners.^  ^^  It  contemplates  a  sliaring  of  the  gross  retui-ns 
and  not  of  the  profits  of  the  undertaking."'* 


N.  W.  1C4;  steel  v.  Frick,  56  Pa.  172, 
94  Am.  Dec.  51 ;  Mann  v.  Taylor,  52 
Tenn.  (5  Heisk.)  267;  Smith  v. 
Rice,  56  Ala.  417  (semble) ;  Rake- 
straw  V.  Floyd.  54  S.  C.  288,  32  S.  E. 
419. 

112  Taylor  v.  Bradley,  39  N.  Y.  129, 
100  Am.  Dec.  415;  Laiiyon  v.  Wood- 
ward, 55  Wis.  652,  13  N.  W.  883; 
Bovrers  v.  Graves  &  Vinton  Co.,  8  S. 
D.  385,  66  N.  W.  931,  59  Am.  St.  Rep. 
766.  The  case  of  Herskell  v.  Bush- 
nell,  37  Conn.  36,  9  Am.  Rep.  299,  is 
apparently  to  the  effect  that  such 
may  be  the  relation.  In  Lewis  v. 
Wilkins,  62  N.  C.  303,  such  a  con- 
tract was  said  to  create  "a  sort  of 
agricultural  partnership." 

113  As,  for  instance,  in  Huff  v. 
Watkins,  15  S.  C.  82,  40  Am.  Rep. 
680;  McCutchen  v.  Crenshaw,  40  S. 
C.  511,  19  S.  E.  140.  And  such  ap- 
iparently  was  the  contract  in  Maver- 
ick v.  Lewis,  3  McCord  Law  (S.  C.) 
211;  Bryant  v.  Pugh,  86  Ga.  525, 
12  S.  E.  927.  See  ante,  §  20,  at  note 
115. 

in  Gardenhire    v.    Smith,    39   Ark. 


280;  Romero  v.  Dalton,  2  Ariz.  210, 
11  Pac.  8G3;  Smith  v.  Schultz,  89 
Cal.  526,  26  Pac.  1087;  Parker  v. 
Fergus,  43  111.  437;  Jeter  v.  Penn, 
28  La.  Ann.  230,  26  Am.  Rep.  98; 
Williams  v.  Rogers,  110  Mich.  418, 
68  N.  W.  240;  Putnam  v.  Wise,  1 
Hill  (N.  Y.)  234,  37  Am.  Dec.  309; 
Perriue  v.  Hankinson,  11  N.  J.  Law 
(6  Halst.)  181;  Rose  v.  Buscher,  80 
Md.  225,  30  Atl.  637;  Donnell  v. 
Harshe,  67  Mo.  170;  Day  v.  Stevens, 
88  N.  C.  83,  43  Am.  Rep.  732;  Brown 
v.  Jaquette,  94  Pa.  113,  39  Am.  Rep. 
770;  Freeman  v.  Gordon,  59  111. 
App.  189;  Mann  v.  Taylor,  52  Tenn. 
(5  Heisk.)   267. 

115  See  Parsons,  Partnership  (4th 
Ed.)  §  61,  note;  22  Eng.  &  Am.  Enc. 
Law  (2d  Ed.)  45;  Burdick,  Partner- 
ship,  23. 

North  Carolina  Code,  Revlsal 
1905,  §  1982,  provides  that  no  lessor 
of  property,  merely  by  reason  that 
he  is  to  receive  as  rent,  or  compen- 
sation for  its  use,  a  share  of  the 
proceeds  or  net  profits  of  the  busi- 
ness in  which  it  is  employed,  or  any 


L   and  Ten.  104. 


1050  CROPS.  5  253 

Not  infrequently  the  lease,  thougli  prnvidinj?  for  a  division  of 
the  crop,  also  provides  that  until  ilivision  tlie  title  to  th.^  crop 
shall  be  in  the  landlord.  Tliis  in  elVect  gives  him  a  Vwn  on  the 
whole  crop  to  secure  the  delivery  to  hira  of  his  share."" 

There  are  one  or  two  dictay  and  perhaps  one  decision,''^  to 
the  effect  that  under  an  agreement  for  the  division  of  crops  the 
parties  may  be  tenants  in  common  of  the  land  as  well  as  of  the 
erops.  Sueh  a  relation  would,  no  doubt,  be  created  between  the 
parties  if  it  clearly  appears  to  be  intended,  the  agreement  being 
construed  in  effect  as  involving  a  demise  by  the  landowner  to 
the  cultivator  of  an  undivided  interest  in  the  land,  but  this  result 
cannot  be  regarded  as  ordinarily  within  the  contemplation  of 
the  parties,  and  such  a  construction  of  the  agreement  has  but 
seldom  been  oven  su'/ ires  ted. 

b.  Tenancy  in  common  in  crops.  Tlu-  (piestion  most  fre(|uent- 
ly  discussed  in  connection  with  agreements  for  the  division  of 
crops  between  the  landowniT  and  the  cultivator  has  bi-en  with 
regard  to  the  rights  of  the  parties  in  the  crop  before  division. 
If  one  party  has  title  to  the  whole  crop  to  the  exclusion  of  the 
other,  he  may,  it  is  evident,  by  a  transfer  or  mortgage  thereof 
to  an  innocent  purchaser,  deprive  the  other  party  of  his  share, 
or  the  former's  creditors  may  levy  thereon,  and  so  put  it  out  of 
his  power  to  deliver  to  the  other  party  the  latter 's  agreed  share. 
Furthermore,  the  character  of  the  rights  of  the  respective  parties 
to  the  crop  before  division  will  affect  the  char.icter  of  the  reme- 
dies which  may  be  adopted  by  one  in  case  the  other  undertakes 
to  deprive  him  of  his  share.  A  number,  perhaps  the  majority,  of 
the  courts,  recognizing  the  possibility  of  the  loss  by  one  party 
of  the  share  to  which  his  agreement  entitles  him,  if  the  whole 
title  is  regarded  as  being  vested  in  the  other,  have  asserted  the 
doctrine  that  before  division  the  tw^o  parties  are  tenants  in  com- 
mon of  the  crop,  that  is,  that  each  has  an  undivided  interest 

other  uncertain  consideration,  shall    Am.  St.  Rep.  171;  De  Loach  v.  Delk, 
be  held  a  partner  of  the  lessee.     In    119  Ga.  884.  47  S.  E.  204. 
Georgia,    likewise,    the     view     that        "«  See  post.  §  322  a,  at  note  463. 

,  .     .     ^„„,    „.,^„        11"  Warner    v.    Abbey,    112    Mass. 
there  is  no  partnership  m  such  case  ^' 

355;     Wells  v.  Hollenbeck,  37  Mich, 
is  in  part,  at  least,  based  on  statu-    ^^^    (semble). 

tory     provisions.       See     Padgett     v.        n<^  narrower    v.    Heath,    19    Barb. 

Ford,  117  Ga.  508,  43  S.  E.  1002.  97    (N.  Y.)   331. 


§253 


AGREEMENTS  FOR  DIVISION. 


1651 


therein  ^vhich  is  subject  to  his  sole  control,  this  view  being  per- 
haps more  frequently  based  in  terms  upon  grounds  of  expediency 
than  upon  the  construction  of  the  particular  agreement.  This 
view  that  the  parties  are  tenants  in  common  of  the  crops,  has 
been' most  frequently  taken  in  cases  in  which  the  agreement  was 
not  re-arded  as  involving  a  demise,  creating  the  relation  of  land- 
lord and  tenant,"^  but  in  some  cases,  even  though  the  cultivator 
is  expressly  stated  to  be  a  tenant,  a  tenancy  in  common  m  the 
crops  is  recognized   as   existing.^^^     Oc.usionally  such   tenancy 


119  Hare  v.  Celey.  Cro.  Eliz.  143: 
Smith  V.  Rice,  56  Ala.  417;  Adams  v. 
Thornton.  1  Cal.  App.  XVIII.  82  Pac. 
215;   Herskell  v.  Bushncll.  37  Conn. 
36.  9  Am.  Rep.  299;  Alwood  v.  Ruck- 
man.  21  111.  200;   Creel  v.  Klrkham. 
47    111.    344;    Fiquet    v.    AUis^on.    12 
Mich.   328,  86  Am.  Dec.  54;    Loomis 
V.    ONeal,   73    Mich.    582,   41    N.   W. 
701;    Taylor    v.    Bradley,    39    N.    Y. 
129,'  100   Am.    Dec.   415;    Delaney  v. 
lioot,  99  -Mass.  546.  97  Am.  Dec.  52; 
Reed   V.  McRill,  41   Neb.   206.  59   N. 
W.    775:    Reynolds    v.    Reynolds.    4S 
Hun  (N.  Y.)  142;   De  Mott  v.  Hager- 
man.   8   Cow.    (N.   Y.)    220,   18   Am. 
Dec.    443;    Caswell    v.    Distrlch.    15 
Wend.  (N.  Y.)  379;  Putnam  v.  Wise. 
1  Hill  (N.  Y.)  234.  37  Am.  Dec.  309; 
Armstrong  v.  Bicknell.  2  Lans.   (N. 
Y.)   210;   Guest  v.  Opdyke.  31   N.  J. 
Law.  552;   Reeves  v.  Hannan.  05  N. 
J.  Law,  249.   48  Atl.  1018;    Doty  v. 
Heth.     52     Miss.     530;     Romero     v. 
Dalton.    2    Ariz.    210.    11    P^c.    863; 
Jones   V.   Chamberlin.    52    Tenn.    (5 
Heisk.)   210   (semble);  Botts  v.  Rat- 
liff.     50     Miss.     561;     Mes~in-er     v. 
Union  Warehouse  Co.,  39  Or.  546,  65 
Pac-  808;  Lowe  v.  Miller.  3  Grat.  (Va.) 
205,  46  Am.  Dec.   1S8;     Stedman  v. 
Gas^elt,  18  Vt.  3^6;  Aiken  v.  Smith, 
21  Vt.   172;    Cutting  v.   Cox,   19   Vt. 
517;  Mead  v.  Owen.  80  Vt.  273.  C7  Atl. 
722.  12  L.  R.  A.  (N.  S.)  655. 
Where    the   cultivator,   in   such   a 


case,  makes  a  contract  with  another 
person  for  the  latter  to  do  part  of 
the  work  for  a  part  of  his  share,  all 
the  parties  become  tenants  in  com- 
mon in  the  crops,  it  has  been  de- 
cided. Tripp  V.  Riley,  15  Barb.  (N. 
Y.)  333;  Putnam  v.  Wise.  1  Hill  (N. 
Y  )    234.  37  Am.  Dec.  309. 

In  Moore  v.  Spruill,  35  N.  C.  (13 
Ired.  Law)  55,  the  landowner  and 
cultivator  were  regarded  as  "joint 
owners."  with  the  result  that  the 
survivor  could  dispose  of  the  crop. 

isoBaughman  v.  Reed.  75  Cal.  319, 
17    Pac.    222,    7   Am.    St.    Rep.    170; 
Jones  V.  Durrer.  96  Cal.  95.  30  Pac. 
1027;    Smith  v.  State,  84  Ala.  438,  4 
So.   683.   5    Am.  St.   Rep.   381    (sem- 
ble) ;  Tinsley  v.  Craige,  54  Ark.  346. 
15  S.  W.  897.  16  S.  W.  570;   Connell 
v.    Richmond,   55   CoTin.  401,   11  Atl. 
852     (semble);    Ferrall    v.    Kent,    4 
Gill    (Md.)    209;    Moulton   v.   Robin- 
son. 27  N.  H.  550;  Carr  v.  Dodge.  40 
N.  H.  403;   Brown  v.  Lincoln,  47  N. 
H.  468;  Cooper  v.  McGrew.  8  Or.  327; 
Abernethy  v.  Uhlman   (Or.)   93  Pac. 
936;     Johnson   v.    Hoffman,   53    Mo. 
504 ;     Moser  v.  Lower,  48  Mo.  App.  85 ; 
Mouser  v.  Davis,  11  Wkly.  Law  Bui. 
(Ohio)   249;   Fagan  v.  Vost,  35  Tex. 
Civ.   App.   528,  80   S.  W.   6G4;    Rent- 
frow  v.  I^ncaster.  10  Tex.  Civ.  App. 
32,   31    S.  W.  229;    Horsley  v.  Moss, 
5  Tex.  Civ.  App.  341.  23  S.  W.  1115; 
Brarlley  v.  Arnold,  16  Vt.  382.    And 


1652 


CROPS. 


§253 


in  common  is  stated  to  exist,  witlioiit  any  reference  hoin?  made 
to  the  question  whether  the  cultivator  is  to  be  regarded  as  a 
tenant  of  the  landowner  as  regards  the  land.^^i 

We  will  consider  this  question,  of  the  existence  of  a  tenancy  in 
common  in  the  crci<s,  firstly,  on  the  theory  that  the  agreement 
does  not  involve  a  demise  of  the  land,  creating  the  relation  of 
landlord  and  tenant.  If  the  agreement  in  such  case  be  regarded 
as  one  of  hiring,  making  the  cultivator  the  servant  of  the  laud- 
owner,  a  view  quite  frequently  assertod,i-2  it  is  difficult  to  under- 
stand how  the  share  of  the  crops  which  is  to  be  delivered  to  the 
cultivator  as  wages  can,  before  such  delivery,  be  regarded  as  be- 
longing to  him.  He  has,  it  would  seem,  a  mere  cojitractual  right 
against  the  landowner.  That  one  thus  employed  to  cultivate  the 
land  for  a  share  of  the  crops  has  no  proprietary  interest  therein 
is  recognized  in  a  number  of  cases.^-^  If,  however,  instead  of 
regarding  the  cultivator  as  the  servant  of  the  landowner,  we  re- 


see  Frost  V.  Kellogg,  23  Vt.  308; 
Sowles  V.  Martin,  76  Vt.  180,  56  Atl. 
979;  Willard  v.  Wing,  70  Vt.  123,  39 
Atl.  632,  67  Am.  St.  Rep.  657.  In 
the  latter  case  it  was  held  that  milk 
from  cows  leased  with  the  land  be- 
longed to  the  parties  as  tenants  in 
common. 

In  Case  v.  Hart,  11  Ohio,  364,  38 
Am.  Dec.  735,  it  is  said  that  where 
there  is  a  lease  under  which  the  land- 
lord is  to  receive  one-third  of  the 
corn  and  oats,  the  landlord  has  a 
"lien  or  species  of  property,"  and 
that  the  tenant,  or  those  claiming 
under  him,  cannot  remove  the  en- 
tire crop  without  first  satisfying  the 
claim   for  rent. 

In  Bradley  v.  Arnold,  16  Vt.  382, 
under  an  agreement  that  the  lessee 
was  to  pay  to  the  lessor  1,000  pounds 
of  wool  each  year  from  the  sheep  on 
the  premises,  which  were  included 
in  the  lease,  and  that  the  lessee 
should  not  dispose  of  any  of  the  wool 
till  he  had  paid  this  1,000  pounds,  the 
lessor  and  l^^ssee  were  regarded  as 
tenants  in  common  of  the  wool,  in 


the    proportion   of   1,000    pounds   to 
the  whole. 

121  See  Thompson  v.  Mawhinny, 
17  Ala.  362,  52  Am.  Dec.  176;  Pruitt 
V.  Ellington,  59  Ala.  454;  Schmilt  v. 
Cassilius.  31  Minn.  7,  16  N.  W.  453; 
Knox  V.  Marshall,  19  Cal.  617;  Con- 
solidated Land  &  Irr.  Co.  v.  Haw- 
ley,  7  S.  D.  229,  63  N.  W.  904;  Mc- 
Laughlin V.  Salley,  46  Mich.  219,  9 
N.  W.  256;  McClure  v.  Thorpe,  68 
Mich.  33,  35  N.  W.  829;  Kamerick  y. 
Castleman,  23  Mo.  App.  4S1. 

122  See  ante,  at  note  111. 

123  Gray  v.  Robinson,  4  Ariz.  24, 
33  Pac.  712;  Bryant  v.  Pugh,  86  Ga. 
525,  12  S.  E.  927;  Chase  v.  McDon- 
nell, 24  111.  236;  Gifford  v.  Meyers, 
27  Ind.  App.  348,  61N.  E.  210;  Wood- 
ward V.  Conder,  33  Mo.  App.  147; 
Richards  v.  Wardwell,  82  Me.  343,  19 
Atl.  863;  Patten  v.  Heustis,  26  N. 
J.  Law  (2  Dutch.)  293;  State  v. 
Jones,  19  N.  C.  (2  Dev.  &  B.)  544; 
Cole  V.  Hester,  31  N.  C.  (9  Irea. 
Law)  23;  Huff  v.  Watkins,  15  S.  C. 
85,  40  Am.  Rep.  680;  Richey  v.  Du 
Pre,  20  S.  C.  6;   Porter  v.  Chandler, 


AGREEMENTS  FOR  DIVISION.  1653 

§  Zoo 

gard  the  two  as  parties  to  a  joint  adventure,  as  has  "^^^^^"-"f/^ 
been  suggested,'-  they  may  well  be  joint  owners  »■•  t»-°*.^    f 
c Imo;:*  the  ^rops.  .  This  would  be  in  --rdance  w,th  a  pnnc. 
Pie  whieh  has  been  recognized  in  other  eonnections>      that  U 
two  persons  enter  into  an  agreement  for  the  manufaeture  or  pro 
dletL  of  any  elass  of  property,  each  party  contr>butmg  labor 
tterials,  or  capital  for  the  purpose,  they  are  to  be  reg^^rde^as 
tenants  in  common  of  the  product.    Adopting  still  ano  her  view, 
he  owner  of  the  land  might  be  regarded  as  -nveyng  to  the  ci^^ 
tivator,  by  his  entry  into  the  agreement  «■>  '"7;;'  ^^e  it  bc- 
to  be  produced  in  the  future  equal  to  his  stipulated  share,  it  be 
I^g^rerognized,  in  most  jurisdictions  at  ^^ast  that  the  owner  ^o£ 
l»nd  mav  transfer  an  interest  in  a  crop  yet  to  be  plantca. 
Even  ZugTthe  agreement  be  verbal,  it  might  thus,  it  seems 
fa\-e  effect^s  a  transfer  of  an  interest  ^^/f^^l^^^^'.^Zto 
erops  (frudus  MustriaUs)  not  being  regarded  as  land  within  the 

Statute  of  Frauds.'"  .  , 

As  regards  the  existence  of  a  tenancy  in  common  m  the  crops 
when  he  relation  of  landlord  and  tenant  exists  between  the 
Twuer  0  th  Ld  and  the  cultivator  on  shares,  the  cases  are  by 
nrmoans  in  unison.  As  before  stated,--  there  are  a  number  o 
d  e"ions  in  whieh  the  landlord  and  tenant  have  b-^-f 'even 
as  enants  in  common  of  the  crop.  But  there  arc  perhaps  even 
Irrcases  in  which  the  two  relations  arc  regarded  as  ineon- 

.,  M,nn.  sot,  .  N.  -.-•,,-/-    ^  U^ia'^'/r^cT  3t  .TZ 

Mass.  54C.  97  Am^Dec.  ^^  <sen,me, ;    So.^384.^  ^^  ^^^^  ^^^ 

T:^%  'c    rT  2^  N    y   SU.P   ill ;  "'  Freeman,    Cotenancy    S    Part,- 

Abb.  N.  C.  2.4,  27  N.   I       _v  Beaumont  v.  Crane,  14 

Kelly  V.  Rummerfield   117  ^^  is^  620,  t.o  ^  '      /^^^.t,  ,.  Brooks,  43  N.  H. 

94  N.  W.  649,  98  Am.  St.  Rep^  9  1.  ^t' slluo.   v.   SWnner.  4  Wen.1. 

The  Alabama  statute  (Code  1896  4u  , 

5    2712)    providing    tbat   wbet,   one  f /^^  ^^  ^/'„,„3,  ^8  N.  C.  17, 

party    furnishes    tbe   land    and     be  f  "J^^j^"' , j, .  Thomas  y.  Morri- 

team  to  cuUivate  It,  -^  -»*- *  a  (Tex  Civ  App.)  46  S.  W.  46. 

labor,  the  contract  of  hire  shall  he  .on  l                                       ^^    ^^^ 

held  to  exist,  and  the  laborer  shall  ""^   *",  *       f^   S^,^,  ^  2„0. 

have  a  lien  on  the  crop  tor  the  va^ue  Ed.     ^^^l^^''^^^  ^  ^,,^  ,  „,,, 

Of  his  portion  of  the  crop,  excludes  r,d 

the  relation   of   tenants  in  common  em.  Sn.Ks,  ^  ■i'^'^- 

tne  reiatui               „„„„,-,p<,  thP  title  128  See  ante,  note  120. 

in  the  crops,  and  recognizes  tne  uue 


1654 


CROPS.  §  253 


sistent,  for  the  reason  that  crops  regularly  belong  to  the  tenant,^29 
and  the  share  of  the  crop  which  is  eventually  to  go  to  the  land- 
lord is  in  the  nature  of  rent,  and  the  fact  that  an  article  is  to 
be  delivered  in  payment  of  rent  cannot  make  it  the  property 
of  the  landlord  until  it  is  delivered  or  "rendered"  to  him.^^o  Re- 
garding the  landlord's  share  of  the  crop,  in  the  particular  case, 
as  rent  to  be  rendered  or  paid  to  him,  the  view  asserted  in  these 
cases,  that  the  whole  crop  in  the  first  place  belongs  to  the  tenant, 
seems  on  principle  entirely  sound.  The  view  has  been  taken, 
however,  in  one  jurisdiction  at  least,i3i  that  such  a  provision  that 
the  landlord  shall  have  a  share  of  the  crop  is  to  be  regarded, 
not  as  a  reservation  of  rent,  but  rather  as  an  exception,  out  of 
the  operation  of  the  lease,  of  such  proportion  of  the  future  profits 
of  the  land,  these  future  profits  being  a  proper  subject  for  an  ex- 
ception, as  they  are  for  a  grant,i32  and,  in  support  of  this  view, 
attention  was  at  the  same  time  called  to  the  statement  of  the 
common-law  writers  that  part  of  the  profits  of  the  land  cannot 
be  reserved  as  rent.^^s     This  view  of  the  provision  for  a  sharing 

120  See  ante,    §   249.  v.  Ratliff,  50  Miss.  561;    Doremus  v. 

i3oChicag:o  '&  W.  M.  R.  Co.  v.  Un-  Howard,  23  N.  J.  Law  (3  Zab.)  390; 
ard,  94  Ind.  319,  48  Am.  Rep.  155,  Reeves  v.  Hannan,  65  N.  J.  Law,  249, 
disapproving  Scott  v.  Ramsey.  82  48  Atl.  1018;  Deaver  v.  Rice,  20  N. 
Ind.  330;  Smyth  v.  Tankersley,  20  C.  (4  Dev.  &  B.)  567;  Peebles  v.  Las- 
Ala.  212,'  56  Am.  Dec.  193;  Tread-  siter,  33  N.  C.  (11  Ired.  Law)  73; 
way  V.  Treadway,  56  Ala.  390;  Ross  v.  Swaringer,  31  N.  C.  (9  Ired. 
Clarke  v.  Cobb,  121  Cal.  595,  54  Pac.  Law)  481;  Rinehart  v.  Olwine,  5 
74;  Ponder  v.  Rhea,  32  Ark.  435;  Watts  &  S.  (Pa.)  157;  Burns  v. 
Sargent  v.  Courrier,  66  111.  245;  Al-  Cooper,  31  Pa.  426;  Ream  v.  Har- 
wood  V.  Ruckman,  21  111.  200;  Dix-  nish,  45  Pa.  376;  Magill  v.  Holston 
on  V.  Niccolls,  39  111.  372,  89  Am.  65  Tenn.  (6  Baxt.)  322  (semble) ; 
Dec.  312;  Townsend  v.  Isenberger,  Texas  &  P.  R.  Co.  v.  Bayliss,  62  Tex. 
45  low^a,  670;  Howard  County  v.  571;  Kurd  v.  Darling,  16  Vt.  377.  In 
Kyte.  69  Iowa,  307,  28  N.  W.  609  (but  Wisconsin  it  is  decided  that  prima 
see  Riddle  v.  Dow,  98  Iowa,  7,  66  facie  the  whole  crop  belongs  to  the 
N.  W.  1066,  32  L.  R.  A.  811);  Hold-  tenant,  but  it  is  recognized  that  by 
erman  v.  Smith,  3  Kan.  App.  423,  43  special  stipulation  the  parties  may 
Pac.  272;  Taylor  v.  Coney,  101  Ga.  be  tenants  in  common  thereof.  Row- 
655,  28  S.  E.  974;  Warner  v.  Abbey,  lands  v.  Voechting,  115  Wis.  352,  91 
112  Mass.  355;  Dockham  v.  Parker,  9  N.  W.  990. 

Me.    (9    Greenl.)    137,    23    Am.    Dec.        i3i  This    view    is    fully    and    ably 

547;    Turner    v.    Bachelder,    17    Me.  stated    by    Bell,    J.,    in    Moulton    v. 

257;    SyrnoTif's   v.   Hall,   87   Me.    354.  Robinsou,  27  N.  H.  550. 
59  Am.  Dec.  53;    Richards  v.  Ward-        132  See  ante,  at  note  126. 
well,  82  Me.  343,  19  Atl.  863;    Betts       las  See  ante,  §  168,  at  note  50. 


o  253  AGREEMENTS  FOR  DIVISION.  1655 

of  the  crops,  as  constituting  an  exceptioQ  from  the  thing  demised, 
and  not  a  reservation  of  rent,  and  as  consequently  vesting  an  un- 
divided interest  in  the  crops  in  the  landlord  as  they  come  into 
existence,  would  seem,  in  the  majority  of  cases,  to  be  a  reasonable 
one,  though  so  to  regard  the  provision  when  the  lease  expressly 
states  that  the  landlord's  share  is  to  be  paid  to  him  ''as  rent" 
would  seem  to  involve  consi.ierable  latitude  of  construction.  It 
is  on  such  a  theory  that  the  numerous  cases  recognizing  a  ten- 
ancy in  common  in  the  crops- ^^  may  perhaps  best  be  supported. 
In  the  last  analysis,  however,  the  question  in  every  case  would 
seem  to  be,  what  was  the  intention  of  the  parties,  as  indicated  by 
the  language  used.^^'^ 

e.  Duties  as  regards  cultivation  and  harvesting.  If  one  who 
has  agreed  to  cultivate  the  land  on  shares,  but  who  is  not  in  the 
position  of  a  tenant,  abandons  the  cultivation  before  completion, 
without  justification,  the  landowner  is  entitled  to  take  the  whole 
crop,^36  and  the  cropper  would  also  be  liable  in  damages  for 
breach  of  his  contract  to  cultivate.^^T  If  a  tenancy  exists,  the 
breach  of  the  tenant's  contract  to  work  the  land  and  to  give  the 
landlord  a  share  of  the  crops,  it  has  been  decided,  does  not  give 
the  latter  a  right  to  re-enter,  in  the  absence  of  an  express  condi- 
tion to  that  effect  in  the  lease,^38  or  unless  the  tenant  has  aban- 
doned the  premisesJ39  In  two  cases,  although  there  was  a  coji- 
dition  for  re-entry,  it  was  decided  that  the  landlord,  on  re-enter- 

134  See  ante,  noVe  120.  seems  to  assume  that  they  are  joint 

135  Orcutt  V.   Moore,  134  Mass.  48,    owners  of  the  crop. 

45  Am.  Rep.  278;   Dixon  v.  Niccolls,        ist  in    Culley    v.    Taylor,    62   Neb. 

39  111.  372,  89  Am.  Dec.  312;   Clarke  651,  87   N.   W.    334,   it  was   decided 

V.   Cobb,   121   Cal.   595,   54   Pac.   74;  that  if  the  cropper  fails  wholly  in 

Antone  v.  Miles  (Tex.  Civ.  App.)  19  his  contract  to  cultivate,  the   meas- 

Tex.  Ct.  Rep.  748,  105  S.  W.  39.  ure  of  damages  is  whatever  injury 

i»B  Butler  V.  Rice,  17  Hun  (N.  Y.)  inay  have  been  caused  the   land  by 

40G;   Preston  v.  Smallwood,  65  Hun,  allov/ing  it  to  lie  idle  and  the  prob- 

624,  20   N.  Y.    Supp.   504;    Chandler  able  value  of  the  landowner's  share 

V.    Thurston,    27    Mass.    (10    Pick.)  of  the   crop   had   the  contract  been 

205;    Kiplinger   v.   Green,    61   Mich,  fulfilled. 

340,    28   N.   W.   121,   1  Am.   St.  Rep.        i^s  Hanaw  v.  Bailey,  83  Mich.   24, 
584.     But  in   the  case  last  cited   it  46  N.  W.  1039,  9  L.  R.  A.  801.     Cora- 
ls   decided    that  if  the   cropper   has  pare  ante,  §  3  b  (2),  at  notes  56-60. 
sold  his  share  before  abandonment,        i^a  Dillon   v.   Wilson,    24    Mo.    278. 
the     purchaser    may     claim     it     as  See  ante,  §  3  c,  at  notes  52-55. 
against  the  landowner.     This  view 


1656  CROPS.  §  253 

ing,  could  not  assert  title  to  the  share  of  the  crops  which  was  to 
go  to  the  tenant.i^° 

A  mere  cropper  does  not  lose  his  right  to  a  share  of  the  crop, 
of  which  he  is  a  tenant  in  common,  by  abandoning  the  cultivation 
of  the  land,  if  he  is  justified  in  so  doing,  as  when  the  behavior 
of  the  landowner  is  harassing  and  insulting,*^!  though  if  not  re- 
garded as  a  tenant  in  common  of  the  crop  he  would  presumably 
be  entitled  merely  to  assert  a  claim  for  damages  in  such  case. 
Nor  does  he  lose  his  right  to  his  share  of  the  crop  because  he 
withdraws  entirely  from  the  premises  at  the  time  at  which  his 
contract  is  to  come  to  an  end,  without  having  received  his  share, 
owing  to  the  landowner's  failure  to  divide  it,  as  agreed,  when 
ready  for  market.^^^ 

The  view  has  been  asserted  that,  when  the  landlord  is  to 
receive  a  share  of  the  crop,  the  tenant  is  bound,  as  regards  the 
landlord,  to  use  reasonable  diligence  to  raise  a  full  crop,  and 
that,  if  he  fails  to  do  so,  the  landlord  is  entitled  to  such  a  por- 
tion of  the  crop  as  his  share  would  have  amounted  to  if  the 
tenant  had  used  such  diligence.^ ^^  Elsewhere,  however,  a  con- 
trary decision  has  been  rendered,  it  being  said  that  "it  would 
give  rise  to  interminable  litigation,  if  landlords,  leasing  on  shares, 
could  claim  all  that  would  have  enured  to  their  benefit,  if  the 
tenant  had  exercised  ordinary  industry,  and  judgment  in  the  cul- 
tivation of  the  crops.  The  amicable  adjustments  of  rents  would 
be  almost  exceptional.  The  landlord  chooses  his  tenant,  and  must 
judge  of  his  skill  and  fidelity  in  husbandry,  or  if  he  desires  as- 

140  Collier  v.  Cunningham,  2  Ind.  that  adopted  In  Long  v.  Fitzimmons, 
App.  254,  28  N.  E.  341;  Koeleg  v.  1  Watts  &  S.  (Pa.)  530,  to  the  effect 
Phelps,  80  Mich.  466,  45  N.  W.  350.  that  where  the  lessor  of  a  grist  mill 
Compare  ante,  at  notes  74-76.  reserved  two-thirds   of  the  tolls   re- 

141  Rejmolds  V.  Reynolds,  48  Hun  ceived,  and  the  lessee  ground  so 
(N.  Y.)  142.  But  an  expression  hy  badly  as  to  be  unable  to  collect  tolls 
the  landowner  of  dissatisfaction  from  his  customers,  the  latter  must 
with  him  and  of  a  desire  to  have  account  for  what  the  lessor's  two- 
him  "get  off"  does  not  justify  an  thirds  would  have  amounted  to  had 
abandonment,  it  has  been  decided,  the  grinding  been  well  done.  In 
Preston  v.  Smallwood,  65  Hun,  624,  Cammack  v.  Rogers,  32  Tex.  Civ. 
20  N.  Y.  Supp.  504.  App.    125,    74    S.   W.    945,  it   is   said 

142  Wood  V.  Noack,  84  Wis.  398,  that,  in  the  case  of  a  lease  on  shares, 
54  N.  W.  785.  there  is  an  implied  covenant  to  cul- 

143  Wheat  V.  Watson,  57  Ala.  581.  tivate  in  a  farmer-like  manner. 
Somewhat   similar  to   this   view   is 


253  AGREEMENTS  FOR  DIVISION.  1657 

surance  on  these  points,  should  make  special  stipulations  or  have 
money  rent  secured.  "^^^     It  has,  however,  been  decided  in  the 
same  jurisdiction  that  the  tenant  is  liable  in  damages  if  the  lana 
lord  fails  to  receive  all  his  share  of  the  crop  owing  to  the  tenant 
failure  to  gather  it,  even  though  this  could  not  be  done  withou 
great  inconvenience  and  expense .-=     The  tenant  is  obviously  no 
Uable  for  a  deficiency  in  the  quantity  received  by  the  laadlord 
resulting  from  a  partial  fail^oi'e  of  the  crop  caused  by  bad  weath- 
er i^«     If  the  tenant  makes   express   stipulations  m  regard  to 
the  cultivation,  he  is  liable  in  damages  for  failure  to  comply 

therewith.^  ^■^  ,      .  , 

In  the  case  of  a  mere  contract  to  work  the  land  on  shares,  as 
distinguished  from  a  lease  for  a  share  of  the  crop,  the  landowner, 
if  he  prevents  the  other  party  to  the  contract  from  gomg  on  the 
land  and  cultivating  it,  is  liable  in  damages  for  breach  o  the 
contractors  On  the  other  hand,  if  a  tenancy  exists,  the  land- 
lord's liability  in  case  of  interference  by  him  with  the  tenant 
would  be  either  in  tort,  as  for  a  trespass,  or  on  the  covenant  for 

auiet  enioyment.  . 

d     Ascertainment  of  landlord's  share.    Under  an  agreement 

for 'a  division  of  the  crops,  the  straw  as  well  as  the  gram  Ox  the 

i«Patton  y.  Garrett.  37  Ark.  605,    312.  32  S.  W.  1081.  to  the  effect  that 
perl!m    That  the  la.^.ord's    he  Is  not  Ilab'.e  tor  tallure  caused  by 

loss  ij  reason  of  the  t^"-'';  "^^   "^f^^ZK    Now.in.  60  Tenn.   (1 
:rrPa«rn  v.  riC  n    Ba.t.^3:  -.o,.  .  Ch.noweth, 

^-vLn-\"sfortC:.:rrt  ''j^sir:^^'^.  Be...  xos 

TAe  la"  o  !•'  port  on  woold  Mass.  91.  11  Am.  Bep.  318;  Jev-ett 
r„mad  the  telnt  performed  v.  Brooks.  131  Mass.  505;  Reynolds 
rst'ohlat'ons  a  rcu.tiva.ion.  see  v.  Reynolds,  48  Hon  (N  Y.)  142; 
RynoSt  Howard,  Ul  Ga.  888.  36  Shoemaker  v.  '^--'^f  ■"^"^  ^J^^' 
•^  4g7-    Tiernor  v.   Toney,  lo   xex.  \^iv. 

^\»jo'nson    V.    Bryant,     61    Ark.  App.     518,     35     S.    W.    881.      Even 

,12   32  SW   1081.    And  see  Caruth-  though   the   landowner   permits   an- 

312,  32  b.  w.  iu«i.    A  harvest  the  crop,  the  crop- 

ers  y.  Williams,  53  Mo   App.  1  1,  to  otn.r                                       ^^^_^^  ^^^ 

the  effect  that  a  tenant  is  liable  for    P«-  °-^^J  -^^   ^^^^^^^^^   ,„,    ,,   ^, 
the    landlord's    share    o     the    crop    t^e   ^' -  ^^^  ^^^p  ^„  ,,^,. 

''T:t::TXZST...  Ann.  e^d     he     is     .lilty     of     trespass. 

146  Spencer  V.  uniiom,  Woodward   v.   Conder.   33   Mo.   App. 
213;    Brown   v.    Owen,    94    ina.    oi. 

And  see  Johnson  v.  Bryant,  61  Ark.  147. 


1658  CROPS.  §  253 

wheat  is  to  be  divided,' ^^  and  in  the  case  of  a  corn  crop,  the 
agreement  applies  to  the  stalks  after  the  corn  is  gathered.'^''  In 
the  case  of  a  cotton  crop,  the  seed  as  well  as  the  lint  is  within 
the  agreement. 1^^ 

It  lias  been  decided  that  an  agreement  that  the  crop  shall  be 
divided  between  the  landlord  and  tenant  according  to  the  custom 
among  the  farmers  of  the  neighborhood  is  valid. '^-  A  custom 
by  which  a  tenant  on  shares  is  given  a  share  in  the  product  of 
sugar  trees  only  when  he  furnishes  the  utensils  for  making  the 
sugar  has  been  regarded  as  controlling,' ^^  i^^t  a  custom  has  been 
regarded  as  inadmissible  to  show  that  a  tenant  on  shares  was 
not  entitled  to  a  share  of  the  straw  as  well  as  the  grain,  this  being 
a  question  of  the  construction  of  the  contract,  and  the  tenant 
being  entitled  to  a  share  in  all  the  crop,  unless  the  contract  gives 
a  part  to  the  landlord.'^* 

It  is  always  assumed  that  the  obligation  to  gather  the  whole 
crop,  including  the  landlord's  share,  is  upon  the  tenant,  and  that 
he  can  charge  no  part  of  the  cost  thereof  to  the  landlord.' ^^•'°*' 

e.  Delivery  of  landlord's  share — (1)  Mode  of  delivery.  After 
a  division  of  the  crop  and  a  delivery  to  one  party  of  his  share, 
his  title  to  the  part  delivered  becomes  complete.' ^^  The  ques- 
tion of  what  constitutes  a  delivery  by  the  tenant,  such  as  to  vest 

149  Rank  V.  Rank,  5  Pa.  211;  Smith  Am.  Rep.  467;  Rolirer  v.  Babcock, 
V.  Boyle,  66  Neb.  823,  92  N.  W.  1018,  126  Cal.  222,  58  Pac.  537;  Hart  v. 
103  Am.  St.  Rep.  745.  State,  29  Tnd.  200;  Burns  v.  Cooper, 

150  Moser  v.  Lower,  48  Mo.  App.  31  Pa.  426.  In  Rohrer  v.  Babcock, 
85;  Black  v.  Scott,  104  Mo.  App.  37,  126  Cal.  222,  5S  Pac.  537,  the  stack- 
78  S.  W.  301.  i^S  of  the  landowner's  share  of  the 

151  McBride  v.  Puckett  (Tex.  Civ.  crop  in  a  place  named  was  regard- 
App.)    66  S.  W.  242.  ed     as     a     dollverv.     In     Burns     v. 

152  Clem  V.  Martin,  34  Ind.  341.  Cooper,  31   Pa.   426,  It  was  decided 

153  Brown  v.  Burrington,  36  Vt.  that  while  delivery  of  the  landlord's 
^Q  share  was  necessary  to  vest  title  In 

154  Iddings  v.  Nagle,  2  Watts  &  S.  ^^^'  there  was  a  sufficient  delivery 
(Pa.)   22.  ^°''     *^'^     purpose     if     the     tenant 

155. 156  See,  to  this  effect,  Johnson  threshed  the  wheat,  divided  it  in 
v.  Bryant,  61  Ark.  312,  32  S.  W.  1081;  ^'s  ^-^^^  in  the  presence  of  the  land- 
Field  V.  Wheeler,  120  N.  C.  264,  26  S.  ^or^>  and  took  .away  his  own  half. 
E.  812;  Caruthers  v.  Williams,  53  Mo.  The  mere  attachment  of  the  culti- 
App.  181;  Gore  v.  Gardner  (Tex.  Civ.  vator's  undivided  share  does  not 
App.)    68  S.  W.  520.  effect   a   division,  though  the  officer 

157  Durdin  v.  Hill,  75  Ga.  228,  58  takes   the  stipulated  portion  of  the 


§253 


AGREEMENTS  FOR  DIVISION.  1659 


the  title  to  the  stipulated  share  in  the  landlord,  has  not  frequently 
been  the  subject  of  litigation.  If  the  tenant  is  in  terms  required 
merely  to  separate  the  landlord's  share  on  the  premises,  this,  it 
seems  is  sufficient  to  vest  in  him  the  title  thereto.^^s  A  mere 
placing  of  the  whole  crop,  without  any  division,  in  the  place 
named  for  delivery  of  the  landlord's  share,  is  not  a  compliance 
with  the  tenant's  contract  to  deliver.^^^ 

The  parties  may  waive  a  provision  in  regard  to  the  mode  of 
division  of  the  crop,  and  one  who  has  assented  to  the  division, 
as  made,  cannot  thereafter  question  its  correctness.^^^  And  so 
if  one  accepts  a  money  payment  in  lieu  of  his  share  of  ^the  crop, 
he  cannot  thereafter  assert  any  claim  as  to  the  crop.^«i 

(2)  Time  of  delivery.  There  are  occasional  decisions  that  a 
yearly  crop  rent,  like  a  money  rent,  is  payable  at  the  end  of  the  . 
yearly  period  i^^"^  It  was  in  eft'ect  so  decided  when  the  question 
involved  was  whether  the  right  to  the  rent  passed  on  a  transfer 
of  the  reversion  during  such  period,^^^  and  likewise  when  tlie 
question  involved  was  that  of  the  time  for  levy  of  a  distress.^«3 
It  has,  however,  frequ.'utly  been  said  that  rent  payable  in  a  share 
of  the'  crop  must  be  delivered  within  a  reasonable  time  after  the 
harvesting  of  the  croW''  and  what  is  a  reasonable  time  has  been 
said  to  depend  largely  on  the  nature  of  the  crop  and  the  circum- 
stances of  each  case,  and  to  be  a  question  for  the  jury.i«'>     It  has 

crop    it  being  provided  by  the  lease    also.  Chicafro  &  W.  M.  R.  Co.  v.  Un- 
that'tbe  crop  should  be  threshed  in    ard.  94  Ind.  319.  48  Am.  Rep.  15. 
he  lamlowner-s  barn,  and  this  not       That     tender     of     the     landlord's 
havin.  been  done.    Bishop  v.  Doty,    share   places  the   title   m  h.xn    see 
^^     28  Fordyce  v.  ?Iathom,  57  Mo.  120. 

158  In  'Indiana,  though   it  is   fully        -o  Roush  v.  Emerick   SO  Ind.  551; 
recognized  that  the  landlord  has  no    Manwell  v.  Manwell   14  Vt.  14. 
[nterest  in  the  crop  merely  because        -^  Freese  v.  Arnold,  99  Mich.  13. 
a  share  thereof  is  to  be  delivered  to    57  N.  W.  1038. 

him.  it  is  considered  that  if  no  de-        -^  Conner   v.    Schricker.    42    Neb. 
livery  of  his   share  is  to  be  made,    656.  60  N.  W.  891. 
hut  U  is  merely  to  be  "laid  by"  for        ^-  See  ante.  §  172    .  note      0. 
him  on  the  premises,  his  title  there-        i62  Dixon   v.    Niccolls.   39   111.    372. 
to   becomes   complete   when   so   laid    89  Am.  Dec.  312.     This  was  a  lease 
by        Hart    v.    State.    29    Ind.    200.    for  a  year  only. 
And  so,  if  it  ii  expressly  stipulated        ic3  Nowery  v.  Connolly,  29  U.  C.  Q. 
that  he  is   "to   save  and  take  care    B.   39. 

of"  his  half  of  the  crop  "at  cutting        "4  See  ante.  §  172  i,  note  201. 
up  time  "  he  t>^-n  he-ornes  the  own-r.        inr.  Caruthers  v.  Williams,  58  Mo. 
Lindley  v.  Kelley.  42  Ind.  294.     See  App.  100.     In  this  case  it  is  decided 


16G0 


CRors. 


253 


also  been  said  that  "unless  otherwise  provided  by  agreement, 
the  crop  should  be  divided  from  time  to  time,  as  considerable 
parts  thereof  shall  be  gathered,  especially  where  the  gathering 
of  the  whole  is  delayed  for  a  considerable  length  of  time."^"® 
The  tenant  is  entitled  to  a  reasonable  time  within  which  to  gather 
the  crop.i^^ 

The  tenant  cannot  withhold  the  landlord's  share  until  the  lat- 
ter has  paid  a  claim  due  the  tenant  by  the  terms  of  the  lease,  if 
this  is  not  expressly  made  a  lien  on  the  crop.^*^'* 

f.  Transfer  of  undivided  share.  If  the  cultivator  of  land  "on 
shares"  is,  in  a  particular  case,  to  be  regarded  as  a  mere  servant, 
and  his  share  of  the  crop  is  merely  to  be  "paid"  to  him  as  wages,' ^s 
he  has,  it  seems,  before  he  has  received  his  share,  no  interest 
in  the  crop,  and  the  validity  of  a  conveyance  or  mortgage  by  him 
of  such  share  may  be  open  to  question.^'^^     On  the  other  hand,  if 


that  the  tenant  can  show,  in  an 
action  for  the  rent,  that  he  made 
efforts  to  have  the  grain  threshed 
and  delivered  in  reasonable  time. 
In  Rawlins  v.  Bush,  SO  Ga.  5S8,  5  S. 
E.  634,  evidence  that  the  land  was 
unhealthy,  and  that  the  tenant  and 
his  family  and  laborers  were  conse- 
quently sick,  was  admitted  to  show 
that  a  reasonable  time  had  not 
elapsed  after  the  m?>turity  of  the 
crops  for  their  gathering  and  de- 
livery before  the  suing  out  of  a  dis- 
tress. 

iGG  Smith  V.  Tindall,  107  N.  C.  88, 
12  S.  B.  121,  per  Merrimon,  C.  J. 
The  opinion  proceeds:  "There  is 
no  reason,  orrlinarily,  why  this 
shall  not  be  done,  and  reasons  of 
convenience,  economy,  safety  of  the 
parts  of  the  crop  gathered,  and  se- 
curity of  the  rights  of  the  parties 
interested,  strorcly  suggest  that  it 
should  be."  And  see  Brown  v.  Ad- 
ams, 35  Tex.  447,  to  the  effect  that 
a  crop  rent  should  be  paid  as  the 
crop  is  gathered. 

That  by  the  Iowa   statute    (Code 


1897,  §  2991)  such  a  lease  termi- 
nates December  1st  does  not  render 
the  crop  rent  payable  that  day,  so 
as  to  take  the  case  out  of  Code,  § 
3056,  which  provides  that  no  con- 
tract for  the  delivery  of  property 
in  which  the  time  of  performance  is 
not  fixed  shall  be  converted  into  a 
money  demand  until  a  demand  of 
performance  has  been  made.  John- 
son V.  Shank,  67  Iowa,  115,  24  N.  W. 
749. 

1C7  Holt  V.  Licette,  111  Ga.  810,  35 
S.   E.   703. 

i^Ta  Rohrer  v.  Babcock,  126  Cai. 
222,  58  Pac.  537. 

168  See  ante,  at  note  111. 

169  That  it  is  valid  is  decided  In 
Beard  v.  State,  43  Av'k.  284;  Parks 
V.  Webb,  48  Ark.  293;  McGee  v.  Pit- 
zer,  37  Tex.  27.  Contra,  Bryant  v. 
Pugh,  86  Ga.  525,  12  S.  E.  927;  Mc- 
Neely  v.  Hart,  32  N.  C.  (10  Ired. 
Law)  63,  51  Am.  Dec.  377.  In  most 
jurisdictions,  no  doubt,  the  cultiva-' 
tor  may  transfer,  bv  way  of  security 
or  nb-^ohitelv,  h's  claim  against  the 
landowner  to   have  a  share  of  the 


S  253 


AGREEMENTS  FOR  DIVISION.  1661 


he  is  to  be  regarded  as  a  tenant  in  common  of  the  crops,  he  may 
no  doubt  convey  or  mortgage  his  undivided  interest.!'*^ 

In  the  case  of  a  tenancy,  as  distinguished  from  a  mere  crop- 
pin'^  contract,  the  tenant  is,  as  before  stated,!'^  by  perhaps  the 
majority  of  the  cases,  regarded  as  the  owner  of  the  whole  crop 
to  the  exclusion  of  the  landlord,  and  it  would  seem  that,  when 
such  is  the  case,  the  landlord  cannot  convey  or  mortgage  any 
part  of  the  crop  before  division,'-2  though  he  could  ordinarily 
transfer  his  personal  claim  against  the  tenant  to  have  the  stipu- 
lated share  delivered  to  him,  that  is,  he  could  transfer  his  right 
to  the  rent,  but  not  the  specific  substance  with  which  the  rent  is 
to  be  paid.  In  one  state,  however,  it  has  apparently  been  de- 
cided that,  though  the  tenant  is  the  owner  of  the  whole  crop  be- 
fore division,  the  landlord  has  a  "mortgageable  interest  there- 
in. "^^^ 

If  the  landlord  and  tenant  are  to  be  regarded  as  tenants  in 
common  of  the  crop,  the  tenant  can  obviously  not  convey  or 
mortgage  the  landlord's  share,i74  though  he  may  convey  or  mort- 
gage his  own  share.1'5  The  tenant,  if  regarded  as  the  owner  of 
the"  whole  crop,  may  transfer  or  mortgage  it  to  a  third  person, 
even  to  the  injury  of  the  landlord.i^« 

crop  delivered  to  him,  but  ttiis  is  senting  opinion,  written  by  Gran- 
evidently  not  a  transfer  of  an  in-  ger,  J.,  is  a  most  forcible  one.  The 
terest  in  the  crop.  case  of  Potts  v.  Newell.  22  Minn.  5C1 

170  Ciirtner  v.  Lyndon.  128  Cal.  35.  cited  in  the  opinion  of  the  court, 
60  Par  4G2-  McGee  v.  Fitzer.  37  Tex.  supports  the  decision,  though  in  the 
27-  Aiken  V  Smith  21  Vt.  172;  Deni-  Minnesota  case  there  is  no  discus- 
son  V  Sawyer.  95  Minn.  417.  104  N.  sion  of  the  question.  Howell  v. 
W  305;  Alexan^ier  v.  Ziegler.  84  Pugb,  27  Kan.  702;  Horseley  v.  Moss. 
Miss  SCO.  36  So.  536.  One  to  whom  5  Tex.  Civ.  App.  341,  23  S.  W.  1115. 
the  cultivator  has  transferred  his  and  Ferrall  v.  Kant,  4  Gill  (Md.) 
share  of  the  crop,  a  purchaser  in  209.  also  cited  in  the  Iowa  case,  are 
good  faith,  cannot  be  affected,  as  decisions,  apparently,  that  the  land- 
regards  his  rights  in  the  crop,  by  lord  and  tenant  have  joint  interests 
the  cultivator's  subsequent  abandon-  in  the  crops,  in  accordance  with  the 
ment  of  the  contract.  Kiplinger  v.  authorities  cited  ante,  note  120. 
Green,  61  Mich.  340.  28  N.  W.  121,  1  1^4  Sunol  v.  Molloy.  63  Cal.  369. 
Am.  St.  Rep.  584.  ^"  Sunol  v.  Molloy,  63  Cal.  369. 

m  See  ante,  note  130.  i-«  Holmes  v.  Holifield.  97  111.  App. 

172  See  Orr^utt  v.  Moore,  134  Mass.    185;     Doremus  v.  Howard,  23  N.  J. 
48    45  Am    Rep.  278,  to  this  effect.        Law    (3    Zab.)    390.     In   the   former 

173  Riddle  v.  Dow,  98  Iowa,  7,  66  N.    case  the  fact  that  the  tenant's  raort- 
W    1066    32  L.  R.  A.  811.     The  dis-    gagee  did  not  know  of  the  landlord's 


1662 


CROPS. 


253 


If  the  landowner  and  cultivator  are  to  be  regarded  as  tenants 
in  common  of  the  crop,  whether  or  not  the  relation  of  tenancy 
exists,  a  mortgagee  of  the  interest  of  either  becomes  a  tenant  in 
common  with  the  other,  having  the  same  rights  as  the  mortgagor 
with  reference  to  the  crop.^'^'^ 

g.  Rights  of  creditors.  The  creditors  of  either  part.v  sta.nd  in 
the  same  position  as  the  party  himself,  and  if,  until  delivery  of 
his  share,  the  title  in  no  part  of  the  crop  is  vested  in  the  land- 
lord, his  creditors  cannot  levy  upon  it.^^^  Conversely,  if  the  title 
to  the  whole  crop  is  in  the  landowner,  the  creditors  of  the  culti- 
vator cannot  levy  thereon. ^"^  And  if  they  are  tenants  in  common 
of  the  crop,  the  share  of  each  is  alone  subject  to  the  claims  of  his 
creditors.^s^  If  the  whole  crop  is  regarded  as  belonging  to  the 
tenant  before  division,  it  is  subject  as  a  whole  to  a  levy  by  his 
creditors,  although  the  effect  be  to  deprive  the  landlord  of  his 
share.^81 

Upon  delivery  to  the  landlord  of  the  share  which  he  is  to  re- 


rights  was  regarded  as  material  up- 
on the  question  of  priority. 

177  Sunol  V.  Molloy,  63  Cal.  369; 
Ahernethy  v.  Uhlman  (Or.)  93  Pac. 
936;  McGee  v.  Fitzer,  37  Tex.  27. 

It  has  heen  decided  that  if  a  ten- 
ant delivers  a  part,  not  exceeding 
his  own  share,  to  one  to  whom  he 
had  previously  conveyed  such  share, 
and  an  equal  part  to  the  landlord, 
the  latter  cannot  take  the  part  thus 
delivered  to  the  other,  even  though 
this,  v/ith  the  part  delivered  to  him, 
does  not  exceed  the  share  of  the 
whole  crop  to  which  he  is  entitled. 
Hopper  V.  Haines,  71  Md.  64,  18  Atl. 
29.  20  Atl.  159. 

178  Hansen  v.  Dennison,  7  111.  App. 
(7  Bradw.)  73;  Williams  v.  Smith, 
7  Ind.  559;  Ream  v.  Harnish,  45  Pa. 
376;  Gordon  v.  Armstrong,  27  N.  C. 
(5  Ired.  Law)  4^9;  Devore  v.  Kemp, 
3  Hill  Law  (S.  C.)  259.  In  Flournoy 
V.  Wardlaw,  67  Ga.  378,  it  was  held 
that  even  thousrh  the  tenant  had  the 
crop,  consisting  of  cotton,  placed  in 


the  landlord's  gin  house,  and  the 
latter,  acting  as  the  tenant's  agent, 
had  it  carried  to  town,  where  it  was 
inadvertently  placed  in  the  ware- 
house of  the  landlord's  creditor,  the 
latter  could  not  levy  on  it. 

The  landlord's  creditors  can  reach 
his  share  only  by  garnishing  the 
tenant.  Howard  County  v.  Kyte,  69 
Iowa,  307,  28  N.  W.  609. 

179  Chandler  v.  Thurston,  27  Masg. 
(10  Pick.)  205;  Gray  v.  Robinson, 
4  Ariz.  24,  33  Pac.  712;  Wanamaker 
V.  Buchanan,  33  Pa.  Stiper.  Ct.  138. 

180  Stickney  v.  Stickney,  77  Towa, 
699.  42  N.  W.  518:  Case  v.  Hart,  11 
Ohio,  364,  38  Am.  Dec.  735. 

isi  Deaver  v.  Rice,  20  N.  C.  (4  Dev. 
&  B.)  567,  34  Am.  Dec.  388;  Turner 
V.  Bachelder,  17  Me.  257;  Sargent  v. 
Courrier,  66  111.  245.  Atkins  v. 
Womeldorf.  53  Iowa.  150,  4  N.  W. 
P05,  is  to  the  contrary,  but  there  the 
decision  seems  to  be  based  upon  the 
existence  of  the  statutory  Hen  for 
rent  in  favor  of  the  landlord. 


AGREEMENTS  FOR  DIVISION. 


§  253 

ceive,  the  title  therein  is  vested  in  him,  and  it  becomes  subject  to 
the  claims  of  his  creditors,^^^  while  it  is  thereby  placed  out  ot 
the  reach  of  the  tenant's  creditors.iss  ,     ,     .        . 

In  a  few  jurisdictions  there  are  statutory  enactments  deigned 
to  protect  the  share  of  one  party  in  the  crop  from  hab.hty  for 

^^^;"E;tt^:rof  n^hts  as  .et^een  the  parties  Since  the 
noss..ssion  of  the  land,  in  the  case  of  a  lease  by  wlaeh  a  share  of 
thT  op  is  reserved,  is  in  the  tenant,  the  landlord  has  no  nght 
to  goTn  the  land  for  the  purpose  of  taking  his  share  ot  he 
crop'-  and  this  has  been  decided  to  be  the  case  even  when  the 
crop;  are  likely  not  to  be  harvested  at  all,  owing  to  the  tenant  s 
neXc  -  though  there  are  other  decisions  supporting  a  con 
Trary  V  ew-^  Nor  has  the  landlord  a  right  to  any  part  of  the 
rop    even'though  the  crop  has  been  harvested  and  stored  m  a 


i82Hartv.  State.  29  ind.  200.  So. 
in  the  case  of  a  mere  cropping  ron^ 
tract,  upon  delivery  to  the  tenant  o 
his  share,  it  becomes  subject  to  his 
debts.  Crocker  v.  Cunningham.  122 
Cal.  547,  55  Pac.  404. 

is.3Durdin  V.  Hill.  75  Ga.  2?8  58 
Am.  Rep.  467;  Symonds  v.  Hall.  37 
Me.  354.  59  Am.  Dec.  53. 

184  In   Kansas    (Gen.    St.   19t&.    S 
^834)   it  is  provided  that  a  sale  un- 
der execution  against  a  tenant  does 
not    affect    the    landlord's    interest. 
And  in  Ohio  (Ann.  St.  19T)6.  §  6679) 
and    Oklahoma     (Rev.    St.    1903.    § 
5080).  it  is  provided  that  the  interest 
of  the  landlord  or  tenant  shall  not 
be  affected  by  an  execution  agam£t 
the    other,    but    the    crops    may    be 
sold  subject  to  his  claim.     In  Nebras- 
ka   (Ann.  St.  1907,  §  2018)    there  is 
a    substantially     similar     provision. 
In  Georgia  it  is  provided  (Code  1895. 
§  3127)   that  when  the  tenant  is  to 
pay  a  part  of  the  crop  for  rent,  any 
part  of   the   crop   delivered   in   good 
faith  to  the  landlord  by  the  tenant 
shall  be  free  from  the   lien  of  any 
judgment,    decree   or   other   process 


against  the  tenant.  It  is  also  pro- 
vided in  this  state  (Code,  §  3129), 
that  when  the  relation  of  "landlord 
and  cropper"  exists,  the  title  to,  and 
right  of  control  of.  the  crops,  shall 
he  vested  in  the  landlord  until  he 
has  received  his  share  and  has  been 
repaid  all  advances  made  by  him  to 
assist  in  making  the  crops. 

185  Blake  V.  Coates.  3  G.  Greene 
(Iowa)  548:  Dockham  v.  Parker,  9 
Me.  (9  Greenl.)  137,  23  Am.  Dec.  547. 
Compare  ante,  §  3  b  (2),  at  notes  56- 

60. 

186  Wadley  v.  Williams,  75  Ga.  272. 

187  See  Secrest  v.  Stivers,  35  Iowa. 
580,  v.'here  it  was  held  that  the  land- 
lord may  harvest  the  crops  in  such 
case   and   may   include   the   cost    of 
doing  so  in  bis  claim  for  a  lien,  as 
being  part  of  the  rent.     In  Charles 
V.  Davis,  59  Cal.  479,  it  is  said  that 
if  the  landlord  harvests  the  crop  in 
such  car,e,  and  the  cost  of  so  doing 
exceeds   the  value  of   the  crop,  the 
lessee  has  no  further  interest  there- 
in.    To  the  same  effect  is  Beckwith 
V.  Carroll,  56  Ala.  12. 


1664 


CROPS. 


§  253 


place  accessible  to  him,  if  there  has  been  no  separation  of  the 
shares  and  the  title  is  consequently  to  be  regarded  as  still  solely 
in  the  tenant.^^^ 

If  the  relation  of  tenancy  does  not  exist,  and  the  parties  are  to 
be  regarded  as  tenants  in  common  of  the  crop,  either  may,  it 
seems,   after  the   crops   are  matured,  take   his  share  from  the 

land.189 

One  tenant  in  common  of  chattels  cannot  ordinarily  maintain 
an  action  of  trespass  in  regard  thereto,  and  this  doctrine  has 
been  applied  as  between  tenants  in  common  of  crops  raised  by 
one  on  the  other's  land.^^^  So  if  the  parties  are  tenants  in  com- 
mon of  the  crop,  one  cannot  ordinarily  bring  trover  as  for  a  con- 
version of  his  share,  unless  the  other  has  actually  disposed  of  or 
destroyed  the  crop.i^^     And  likewise,  one  tenant  in  common  of 


188  Cunningham  v.  Baker,  84  Ind. 

597. 

180  See  Com.  v.  Rigney,  86  Mass. 
(4  Allen)  316;  Walker  v.  Fitts,  41 
Mass.  (24  Pick.)  191;  Messinger  v. 
Union  Warehouse  Co.,  39  Or.  546,  65 
Pac.  808. 

100  Wells  V.  Hollenbeck,   37   Mich. 
504;  Daniels  v.  Brown,  34  N.  H.  454, 
69  Am.  Dec.  505.     But  that  the  land- 
lord may  bring  trespass  if  the  ten- 
ant, in  violation   of  his  agreement, 
sells    the    crop,    see    Willmarth    v. 
Pratt,   56   Vt.   474,  citing  Briggs   v. 
Bennett,  26  Vt.  146;  Gray  v.  Stevens, 
28  Vt.  1,  65  Am.  Dec.  216.     When  the 
crop  is  not  regarded  as  the  joint  prop- 
erty   of    the    landlord    and    tenant, 
the  latter,  being  entitled  to  the  pos- 
session of  the  whole  crop,  may  main- 
tain  trespass    for   damage    done   to 
the  crop  by  the  landlord.     Frout  v. 
Hardin,  56  Ind.  165,  26  Am.  Rep.  18. 
101  Williams  v.  Nolen,  34  Ala.  167; 
Strong  V.  Colter,  13  Minn.  82    (Gil. 
77);   Rector  v.  Anderson,  96  Minn. 
123,  104  N.  W.  884;    Carr  v.  Dodge, 
40  N.  H.  403;  Richards  v.  Wardwell, 
S2  Me.  34a    19  Atl.  863;    Stafford  v. 
Ames,  9  Pa.  343;  Hurd  v.  Darling,  16 


Vt.  377;  Tignor  v.  Toney,  13  Tex. 
Civ.  App.  518,  35  S.  W.  881.  Compare 
Neilson  v.  Slade,  49  Ala.  253,  20 
Am.  Rep.  275;  Marlowe  v.  Rogers, 
102  Ala.  510,  14  So.  790;  McClure  v. 
Thorpe.  68  Mich.  33,  35  N.  W.  829; 
Northness  v.  Hillestad,  87  Minn.  304, 
91  N.  W.  1112;  Burns  v.  Winchell,  44 
Hun  (N.  Y.)  261;  Stafford  v.  Ames, 
9  Pa.  343;  Fagan  v.  Vogt,  35  Tex. 
Civ.  App.  528,  80  S.  W.  664,  cases  in 
which  an  action  of  trover  or  for  con- 
version was  sustained. 

In  Parker  v.  Brown,  136  N.  C.  280, 
48  S.  E.  657,  it  appeared  that  the 
tenant  died  before  completing  the 
crop,  and  it  was  held  that  his  rep- 
resentative could,  upon  the  land- 
lord's denial  of  any  rights  in  the 
latter,  recover  "by  a  civil  action" 
the  value  of  the  tenant's  share,  less 
the  amount  of  advancements  made 
by  the  landlord,  and  "such  damage 
as  he  may  have  sustained  by  reason 
of  the  inability  of  the  lessee  to  per- 
form his  contract."  It  does  not 
clearly  appear  whether  the  recovery 
is  based  on  the  theory  that  a  part 
of  the  crop  belonged  to  the  tenant, 
or  on  the  theory  that  the  landlord 


253 


AGREEMENTS  FOR  DIVISION. 


1665 


the  crop  cannot  usually  bring  replevin  against  the  other  to  re- 
cover his  share  therein,  he  having  no  right  to  the  exclusive  pos- 
session.i»2. 193  The  question  of  the  circumstances  under  which 
these  various  possessory  actions  are  available  to  one  joint  owner 
of  personalty  against  the  other  is  one  on  which  the  decisions  are 
by  no  means  in  unison,  and  the  fact  that  in  the  particular  case 
crops  are  the  subject  of  the  joint  ownership,  and  that  this  is  the 
result  of  an  agreement  between  landowner  and  cultivator,  is  en- 
entirely  immaterial. 

It  has  been  decided  in  several  cases  that,  though  the  parties 
are  tenants  in  common  of  the  crop,  either  may  maintain  assumpsit 
upon  the  other's  refusal  to  deliver  his  share.i»^  The  action  in 
such  case  is;  it  seems,  to  be  regarded  as  based  upon  a  contract, 
either  express,  or  necessarily  invoived  in  such  an  agreement  for 
the  division  of  the  crops,  to  allow  the  other  to  have  the  stipulated 
share,  rather  than  upon  any  mere  legal  duty  arising  out  of  their 
relations  as  tenants  in  common.  On  the  other  hand,  it  was  in  one 
case  decided  that  assumpsit  will  not  lie  in  favor  of  a  landlord 
against  a  tenant  who  had  disposed  of  the  crop,  it  not  appearing 
that  the  parties  had  adjusted  their  rights  respecting  such  corn- 


had  agreed  to  deliver  such  part  to 
him.  The  crop  was  completed  by 
the  landlord  at  the  request  of  the 
representative  of  the  tenant,  and 
perhaps  the  decision  can  best  be  re- 
garded as  involving  a  recovery  for 
the  conversion  of  the  share  belong- 
ing to  the  tenant's  representative, 
subject  to  a  set-off  in  favor  of  the 
landlord  for  the  value  of  his  services 
in  completing  the  crop  at  the  ten- 
ant's request. 

192, 193  Reeves  v.  Hannan,  65  N.  J. 
Law,  249,  48  Atl.  1018;  Lacy  v.  Weav- 
er, 49  Ind.  373,  19  Am.  Rep.  683; 
Bowen  v.  Roach,  78  Ind.  361;  Tread- 
way  V.  Treadway,  56  Ala.  390.  Con- 
tra, Alexander  v.  Ziegler,  84  Miss. 
560,  36  So.  536;  Freese  v.  Arnold,  99 
Mich.  13,  57  N.  W.  1038.  And  see 
Monser  v.  Davis,  11  Wkly.  Law  Bui. 
(Ohio)  249.  In  Kansas  the  statute 
gives  the  landlord  the  right  to  bring 


replevin  for  his  share.  Gen.  St. 
1905,  §  4075.  See  Tarpy  v.  Persing, 
27  Kan.  745. 

Even  though  the  title  to  the  crop 
was,  by  the  express  terms  of  the 
lease,  in  the  landlord,  the  right  of 
possession  was  held  to  be  necessarily 
in  the  tenant  u^til  harvesting  and 
division,  so  thai  the  landlord  could 
not  maintain  replevin  against  the 
tenant.  Dunning  v.  South,  62  111. 
175.  But  it  has  been  decided  that 
when  tte  landowner  was  entitled  to 
the  whole  crop,  though  bound  to 
deliver  a  share  to  the  cultivator  in 
pay  for  his  services,  he  could  recover 
in  replevin  for  the  whole  crop.  Kel- 
ly V.  Rummerfield,  117  Wis.  620,  94 
N.  W.  649,  98  Am.  St.  Rep.  951. 

194  Fiquet  v.  Allison,  12  Mich.  328, 
86  Am.  Dec.  54;  McLaughlin  v.  Sal- 
ley,  46  Mich.  219,  9  N.  W.  256; 
Pearce  v.  Pearce,  83  111.  App.  77. 


L.  and  Ten.  105. 


16G6  CROPS.  §  253 

mon  property,  or  that  the  tenant  had  received  any  money  or  its 
equivalent  for  the  crop,'*^^ 

Occasionally  an  injunction  has  been  issued  to  restrain  one  par- 
ty, who  was  in  possession  of  the  crop,  and  who  was  insolvent, 
from  appropriating  or  disposing  of  it,  so  as  to  deprive  the  other 
of  his  share.^9«  And  it  has  been  held  that  the  owner  of  the  land 
may,  in  case  the  tenant  sells  the  crop,  maintain  a  bill  against 
him  for  an  accounting  of  the  proceeds  of  sale,  making  the  vendee 
a  party. 1^'^ 

i.  Actions  against  third  persons.  When  the  landowner  and 
the  cultivator,  whether  a  tenancy  exists  or  not,  can  be  regarded 
as  tenants  in  common  of  the  crop,  they  may  unite  in  an  action 
against  one  who  injures  or  removes  the  crop,!^^  and  it  has  been 
held  that  one  suing  alone  may  recover  if  no  objection  is  made  for 
nonjoinder  of  the  other,^^'-*  though  he  can,  in  such  case,  recover 
only  for  the  loss  of  or  injury  to  his  own  sharc^"^" 

If  the  title  to  the  whole  crop  is,  until  division,  in  one  of  the 
parties,  it  does  not  seem  that  the  other  can  have  a  riglit  of  action 
for  injuries  to  the  crop,  since  his  claim  is  contractual  merely,  a 
right  in  personam  against  the  other  party  to  the  contract,  while 
such  a  recovery  would  presuppose  a  right  in  rem.  A  party  to  a 
contract  has  ordinarily  no  right  of  action  against  a  third  person 
for  acts  rendering  the  performance  of  the  contract  by  the  other 
party  less  valuable  to  him.-^^     There  are,  however,  cases  at  least 

105  Hunt  V.  Rublee,  76  Vt.  448,  58  jection  if  made  is  valid,  see  Pruitt 

Atl.  724.  V.  Ellington,  59  Ala.  454;  Cutting  v. 

i»6  Williams  v.   Green,  37  Ga.   37;  Cox,  19  Vt.  517;    Hatch  v.  Hart,  40 

Lewis    V.    Christian,    40    Ga.     187;  N.  H.  93.     But  in  the  latter  case  it 

Schmitt  V.  Cassilius,  31  Minn.  7,  IS  was    decided   that   if   the   cultivator 

N.  W.   453;    Parker  v.  Garrison,   61  abandons  possession  of  the  crop  or 

Ijl   250.  relinquishes   all   claim   thereto,   the 

197  Sowles  V.  Martin,  76  Vt.  180,  56  landowner  may  sue  alone. 
^^1    979  200  Texas  Pac.  R.  Co.  v.  Saunders 

i*8Foote  V.  Colvin,   3   Johns.    (N.  (Tex.  Civ.  App.)  18  S.  W.  793. 
Y.)    216,  3  Am.  Dec.  478;   Harris  v.        201  That  the  tenant  only  can  sue 

Frink,  49  N.  Y.  24,  10  Am.  Rep.  318;  for  conversion,  see  Ream  v.  Harnish, 

Decker  v.  Decker,  17   Hun   (N.  Y.)  45  Pa.  376.     That  he  may  sue  alone, 

13;   Van  Hoozier  v.  Hannibal  &  St.  see  Chicago  &  W.  M.  R.  Co.  v.  Lin- 

J.    R.   Co.,    70   Mo.    145;    Moulton   v.  ard,   94  Ind.  319,  48   Am.  Rep.  155; 

Robinson,  27  N.  H.  550.  Parker  v.  Hale   (Tex.  Civ.  App.)    78 

100  Van  Hoozier  v.  Hannibal  &  St.  S.  W.  155.     And  that  he  can  recover 

J.  R.  Co.,  70  Mo.  145.     That  the  oh-  the  full  value  of  the  crop  destroyea, 


§253 


Agreements  for  division. 


1667 


suggesting  that  a  landlord  entitled  to  receive  a  share  of  the  crop 
as  rent  may  recover  for  injuries  to  the  erop.-^^ 


see  Texas  &  P.  R.  Co.  v.  Bayliss,  62 
Tex.   570. 

202  There  is  a  dictum  to  that  effect 
in  Ohio  &  M.  R.  Co.  v.  Hoeltman,  34 
111.  App.  429.  And  in  Neal  v.  Ohio 
River  R.  Co..  47  W.  Va.  316,  34  S.  E. 
914,  it  is  said,  without  any  discus- 
sion, that  one  who  has  leased  land 
for  a  share  of  the  crop  may  sue  one 
who  damages  the  crop.  It  does  not 
appear,  however,  whether  in  this 
case  the  court   did  not  regard  the 


parties  as  tenants  in  common  of  the 
crop.  That  the  landlord  has  no 
right  of  action  seems  to  be  involved 
in  ths  decision,  in  Holt  Mfg.  Co,  v. 
Thornton,  136  Cal.  232,  68  Pac.  708, 
that  a  third  person,  when  sued  by 
the  tenant  for  delay  in  performing 
his  contract  to  harvest  the  crop  for 
the  tenant,  cannot  assert  that  a  part 
was  to  be  paid  as  rent  to  the  land- 
lord. 


CHAPTER  XXV. 

CHATTELS  ON  THE  PREMISES. 

§  254.     Lease  of  land  and  chattels. 

255.     Chattels  belonging  to  the  tenant. 

a.  Time  of  removal. 

b.  Failure  to  remove. 

§  254.    Lease  of  land  and  chattels. 

As  we  have  before  remarked,^  not  infrequently  a  lease  of  land 
includes  therewith  chattels,  as  when  a  farm  is  leased  with  the 
stock  thereon,  or  a  residence  is  leased  with  the  furniture  therein. 
It  is  obvious  that,  in  the  case  of  such  a  lease,  the  lessee  is  bound 
to  return  the  chattels,  as  well  as  the  land,  at  the  end  of  the  term 
named,  in  the  absence  of  any  provision  to  the  contrary.  Oc- 
casionally there  is  an  express  provision  for  the  return  of  the 
chattels  leased,  and  sometimes  for  the  return  of  either  such 
chattels  or  chattels  similar  thereto  in  kind  and  value, ^ 

In  two  cases,  a  covenant  by  the  lessee  to  deliver  to  the  lessor 
at  the  end  of  the  term  articles  of  the  same  value  as  those  re- 
ceived has  been  regarded  as  so  absolute  in  character  as  to  bind 
the  lessee,  even  though  the  things  received  were  lost  or  destroyed 
without  his  fault.^  In  one  of  these  cases  it  was  held  that  an  ex- 
ception of  "inevitable  accident"  contained  in  the  lease  was  not 
intended  to  apply  to  the  chattels  as  well  as  the  land.*     But  in 

1  See  ante,  §  23  b.  As  to  the  ap-  the  identical  animals,  so  far  as  these 
portionment  of  the  rent  reserved  on  -were  of  a  class  which  It  was  the 
a    lease    of    land    and    chattels,    see   custom  to  market  each  year. 

ante,  §§  169  c,  180  b  (3).  3  Davis  v.    George,   67   N.   H.   393. 

2  In  Brockway  v.  Rowley,  66  111.  39  Atl.  979;  Smalley  v.  Corliss,  37 
99,  it  was  held  that  a  covenant  by   Vt.  486. 

the  lessee  to  return,  at  the  end  of       *  Davis  v,  George,  67  N.  H.  393,  39 
the    term,    "stock"    included    in    the  Atl.   979. 
lease,  did  not  involve  his  return  of 


§254 


INCLUSION  IN  LEASE.  1669 


another  case,  in  a  different  jurisdiction,  an  exception,  in  the  cove- 
nant to  re-deliver  the  premises  at  the  end  of  the  term  in  as 
good  condition  as  at  the  time  of  the  demise,  of  "damage  by  the 
elements"  was  held  to  apply  likewise  to  a  covenant  to  return 
certain  chattels  on  the  premises  at  the  end  of  the  term,  the  lease 
providing  that  these  should  be  considered  as  "part  of  the  prem- 
ises hereby  demised."^ 

A  covenant  to  return  chattels  on  the  premises  "in  as  good  con- 
dition as  said  articles  now  are,"  is,  it  is  said,  not  broken  till  the 
end  of  the  term,  if  the  chattels  are  merely  injured,  while  if  the 
lessee  destroys  them,  there  is  an  immediate  breach,  he  thus  put- 
ting it  out  of  his  power  to  perform  his  contract.®  A  covenant  by 
the  lessee  to  leave  all  the  timber  on  the  premises  has  been  held, 
on  a  construction  of  the  covenant,  to  be  broken  if  he  cuts  down 
the  timber,  although  he  leaves  it  on  the  premises,  while  it  is  not 
broken  if  it  is  cut  down  by  a  stranger." 

It  has  been  stated  that  if  one  leases  live  stock  for  a  certain 
number  of  years,  he  retains  no  such  property  in  them,  during  the 
term  or  afterwards,  until  their  redelivery,  that  he  can  make  a 
grant  of  them  to  another,  he  being  considered  to  have  merely  a 
possibility  of  property  in  case  they  outlive  the  term.s  This  state- 
ment accords  with  the  view  once  held  that  the  gift  or  grant  of  a 
chattel  personal  for  a  limited  time,  as  distinguished  from  the 
gift  or  grant  of  the  use  and  occupation  of  the  chattel,  transfers 
the  whole  property  in  the  chattel  f  but  it  can  hardly  be  ques- 
tioned that  such  a  lease  would,  at  the  present  day,  ordinarily  bo 
construed  as  involving  a  grant  of  the  use  and  occupation  only 
of  the  live  stock,  that  is,  as  a  bailment,  strictly  so  called,  leaving 

6  Allen    V.    Culver,    3    Denio     (N.  number    of    years'    shearing,    which 

Y.)    284.     Compare  Scheldt  v.   Belz,  could  not  include  the  sheep  existing 

4  111.  App.  (4  Bradw.)  431.  at   the   time   of  the  lease.       In  an- 

e  Fratt  v.  Hunt,  108    Cal.   288,   41  other  report  of  the  same  case  (Wood 

Pac.   12.  V.   Ash,   Godb.   112),   it  is  said   t'h.r.\ 

7Vin.   Abr..   Covenant    (L    4),   pi.  the    original    sheep    leased    are    tho 

3,  citing  Anonymous,  Skin.  40.  property  of  the  lessor  rather  than  of 

8Bac.  Abr.,  Leases   (A);   Wood  v.  the  lessee,   even  though   there  is   a 

Foster,    1    Leon.    42.     In    this    case,  stipulation  by  the  lessee  to  restore, 

however,    the    facts    were    that    the  at  the  end   of  the  term,  a  number 

lessee  of  a  farm  with  shepp  thereon  equal  to  that  included  in  the  lease, 
covenanted    merely    to    return    the       » See  Gray,  Perpetuities   (2d  Ed.) 

same  number  of  sheep,  of  a  certain  §  822  et  seq. 


1670  CHATTELS.  §  254 

the  property  in  tlie  live  stock  in  the  lessor,^"  with  full  powers  of 
transfer  subject  to  the  rights  of  the  bailee.  It  has  been  decided, 
however,  in  a  modern  case,  that  during  the  term  of  the  lease  the 
lessor  has  no  interest  which  can  be  levied  on  under  execution 
against  him,  the  property  being,  by  reason  of  the  lessee's  right 
of  possession,  not  susceptible  of  actual  seizure.^^ 

In  a  case  in  which  live  stock  was  leased  with  a  farm,  it  was 
decided  that  the  lessee,  even  though  given  the  right  to  return, 
at  the  end  of  the  term,  either  the  stock  or  the  value  thereof,  could 
not  dispose  of  parts  of  the  stock. ^2  There  is,  on  the  other  hand, 
a  decision  that,  where  a  lease  of  a  farm  and  of  the  live  stock 
thereon  provided  that  stock  of  equal  age  and  quality,  though  not 
necessarily  the  same  stock,  should  be  returned  at  the  end  of  the 
term,  the  title  to  the  stock  was  vested  in  the  lessee  and  that  it 
was  liable  for  his  debts. ^^  The  question  involved  in  such  cases 
seems  to  be,  primarily,  whetlier  the  transaction  was,  as  regards 
the  personal  property,  intended  to  be  a  bailment  or  a  sale,^^  and 
the  fact  that  it  was  a  part  of  a  transaction  looking  to  the  leasing 
of  land  might  perhaps  be  regarded  as  tending  to  show  that  it 
was  a  bailment. 

In  two  cases  it  is  assumed,  apparently,  in  the  case  of  a  lease 
4)t  land  and  chattels  with  a  provision  for  a  return  of  the  chattels 
or  of  their  equivalent  in  kind  and  value,  that  chattels  acquired 
by  the  lessee  in  place  of  chattels  disposed  of  by  him  immediately 
become  the  property  of  the  lessor.^  ^  In  one  of  these  cases  it  is 
said  that  where  there  is  an  agreement  to  return  stock  and  tools 
of  a  value  equal  to  that  of  those  leased,  it  is  necessary,  on  the 
termination  of  the  lea<=e,  to  ascertain  by  agreement  or  equitable 
action  what  part  of  the  personal  property  on  the  farm  belongs  to 
each.^^ 

10  See   Gray,    Perpetuities,   §§   828-       is  Carpenter  v.  Griffin,  9  Paige  (N. 
855;    Smith  v.  Niles,  20  Vt.  315,  49    Y.)    310,  37  Am.   Dec.   396. 
Am.  Dec.  782.  14  See   2   Kent's    Comm.    590,   and 

"Smith   V.   Niles,   20   Vt.   315,   49    „_x„  .^^,^.^.    .,    ,  o  ,        1 

note  thereto     Mechem,  Sales,  55  19- 
Am.  Dec.  782.  25  .  ss     i' 

12  Billings  V.  Tucker,  72  Mass.    (6 

Gray)    368.     See,  also,   as  in  accord  "Billings  v    Tucker.  72  Mass.    (6 

with    this   case,   apparently,   Wilson  ^^^y)    368;    Wilson  v.   Griswold,  80 

V.  Griswold,  80  Conn.  14,  66  Atl.  783;  ^0°"-  1*.  66  Atl.  783. 

Smith   V.   Niles,   20   Vt.   315,   49   Am.  le  Wilson  v.  Griswold,  80  Conn.  14, 

Dec.    782;    Downer  v.  Rowell,  22  Vt.  66  Atl.  783. 

347. 


§  255  BELONGING  TO  TENANT.  1671 

In  the  case  of  a  lease  of  land  and  live  stock,  as  in  the  case  of 
a  bailment  of  live  stock  alone,  the  property  in  the  increase  born 
during  that  time  is  in  the  lessee,  even  though  the  original  stock 
may,  without  the  lessee's  fault,  have  died.i'^  It  has  been  decided, 
however,  that  where  it  was  provided  that  the  calves  raised  from 
the  stock  should  be  kept  on  the  farm  during  the  term,  and  that 
each  part}'  should  have  one-half  thereof,  the  title  of  the  tenant  to 
one-half  would  not  become  perfected  until  the  term  had  come  to 
an  end.^^ 

The  question  whether  a  lessee  of  land  and  chattels  has  a  right 
to  transfer  the  cliattels  to  another  for  the  terra  of  the  lease,  as 
he  ordinarily  has  the  right  to  transfer  the  land,  is  to  be  de- 
termined, it  seems,  by  the  consideration  whether  the  bailment  of 
the  chattels  can  be  considered  a  personal  trust.^^  He  could  not, 
presumably,  in  the  ordinary  case  of  a  lease  of  land  and  chattels 
thereon,  give  even  a  temporary  right  to  another  to  use  the  chat- 
tels off  the  land.  On  the  other  hand,  he  would,  it  seems,  have  a 
prima  facie  right  to  transfer  his  leasehold  interest  in  the  chattels 
together  with  the  land.  A  contrary  view  would  in  effect  prevent 
any  assignment  by  him  of  his  interest  in  the  land,  since  a  trans- 
fer of  the  possession  of  the  land  without  the  chattels  would  in- 
volve the  removal  of  the  latter  from  the  land,  in  contravention  of 
the  evident  intention  of  the  parties. 

One  who  has  leased  chattels  for  a  term  of  years,  whether  alone 
or  together  with  land,  cannot  maintain  trespass  or  trover  on  ac- 
count thereof,  not  being  entitled  to  the  immediate  possession.^o* 

§  255.     Chattsls  belonging  to  the  tenant. 

a.  Time  of  removal.  The  common-law  authorities  are  clearly 
to  the  effect  that  a  tenant  at  will  has  the  right  of  access  to  the 
premises,  for  a  reasonable  time,  for  the  purpose  of  removing  his 
goods.2i     The  reason  for  such  a  rule  in  favor  of  a  tenant  at  will, 

17  Wood  V.  Ash,  Godb.  112;  Woods  20  Ward  v.  Macauley,  4  Term  R, 
V.  Charlton,  62  N.  H.  649;  2  Kent,  489;  Trisony  v.  Orr,  49  Cal.  612; 
Comm.   361.  Putnam  v.  Wyley,  8  Johns.   (N.  Y.) 

18  Lewis  V.  Lyman,  39  Mass.  (22  432,  5  Am.  Dec.  346.  See  Hale,  Bail- 
Pick.)  437;  Briggs  v.  Oaks,  26  Vt.  ments,  p.  197;  Schouler,  Bailments, 
138.  §  134. 

19  See  Bailey  v.  Colby,  34  N.  H.  21  Litt.  §  69;  2  Blackst.  Comm. 
29,  66  Am.  Dec.  752;  and  ante,  §  152  147;  Com.  Dig.,  Estates,  H  9.  See 
a,  at  note  61.  ante,  §  13  b  (6),  at  note  437. 


1672  CHATTELS.  §  255 

^vllo  is  liable  to  be  deprived  of  possession  by  the  landlord  at  any 
time,  without  previous  notice,  is  sufficiently  obvious.  Such  a 
reason  does  not  apply  in  the  case  of  a  tenant  for  years  or  from 
year  to  year,  but  nevertheless  it  has  been  not  infrequently  as- 
serted judicially  that  a  tenant,  without  naming  any  particular 
class  of  tenant,  has  a  reasonable  time  for  the  removal  of  chattels 
belonging  to  him.22  it  would  rather  seem,  on  principle,  that  a 
tenant  who  knows  beforehand  when  his  tenancy  will  come  to  an 
end  should  remove  his  chattels  during  his  own  possession,  and 
not  be  allowed  to  encroach  on  that  of  another  for  this  purpose.23 

b.  Failure  to  remove.  The  fact  that  the  tenant  fails  to  re- 
move his  chattels  during  the  tenancy,  or  within  such  reasonable 
time  thereafter  as  may  be  allowed  for  removal,  does  not  have  the 
effect  of  divesting  his  title.^-*  In  order  to  transfer  the  ownership 
of  goods,  something  more  is  necessary  than  merely  leaving  them 
on  another's  land. 

Chattels  belonging  to  the  tenant,  which  are  not  removed  by 
him  during  the  tenancy  or  within  a  reasonable  time  thereafter, 
may  be  removed  by  the  landlord,  or  by  a  subsequent  tenant,  to 
some  place  in  the  neighborhood,  reasonable  care  being  exercised 
to  avoid  injury,25  and  such  a  person  is,  it  has  been  held,  under  no 
obligation  further  to  protect  the  chattels  until  the  owner  chooses 
to  take  possession.26  The  landlord  is  liable,  however,  it  seems, 
as  for  negligence,  if  he  removes  the  articles  to  an  obviously  un- 
safe or  unsuitable  place,  unless  at  least  he  notifies  their  owner 
of  such  removal.27    In  one  case  it  is  said  to  be  his  duty  to  have 

22  Florala  Sawmill  Co.  v.  Parrish  Meffert  v.  Dyer,  107  Mo.  App.  462, 
(Ala.)  46  So.  461;  Smith  v.  Boyle,  66  81  S.  W.  643;  and  ante,  §  242  a,  note 
Neb.   823,   92   N.   W.   1018.   103   Am.    113. 

St.  Rep.  745;  Edghill  v.  Mankey,  79       2s  steams  v.  Sampson,  59  Me.  568. 

Neb.  347,  112  N.  W.  570,  11  L.  R.  A.  8  Am.  Rep.  442;    Rollins  v.  Mooers, 

(N.    S.)    688;    Daniels  v.   Brown,   34  25  Me.  192;  Whitney  v.  Swett,  22  N. 

N.  H.  456,  69  Am.  Dec.  505.     To  the  H.   10,  53   Am.   Dec.   228.     See  Lash 

same  effect  is    Comyn's  Landlord  &  v.  Ames,  171  Mass.  487,  50  N.  E.  996. 
Tenant,    356.  26  Smith  v.  Boyle,  66  Neb.  823,  92 

23  In  Cornish  v.  Stubbs,  L.  R.  5  N.  W.  1018,  103  Am.  St.  Rep.  745; 
C.  P.  334,  an  express  stipulation  that  United  States  Mfg.  Co.  v.  Stevens, 
a  reasonable  time  shall  be  allowed  52  Mich.  330,  17  N.  W.  934. 

for  removal  is  held  to  be  valid.  27  See  Burk  v.  Dempster,   34  Neb. 

2*  Smith  V.  Boyle,  66  Neb.  823,  92   426,     51     N.     W.     976;     Whitney    v. 

N.  W.   1018,  103  Am.   St.   Rep.  745;    Swett,  22  N.  H.  10,  53  Am.  Dec.  228. 


§  255 


BELONGING  TO  TENANT.  1673 


a  chattel  so  left  on  the  premises  "removed  to  a  place  of  storage," 
charging  the  expense  thereof  to  the  former  tenant.^^  In  another 
case  it  is  decided  that  if  the  landlord,  instead  of  removing  the 
articles,  keeps  them  on  the  premises,  he  is  entitled  to  compensa- 
tion as  for  storage.29 

The  landlord  is,  it  has  been  held,  guilty  of  conversion  if  he  re- 
fuses to  allow  the  tenant  to  remove  his  goods  during  the  tenancy, 
or  at  a  subsequent  time  when  the  latter  has  a  legal  right  to  do 
so,3o  and  he  is  so  guilty  if  he  disposes  to  a  stranger  of  goods 
which  the  tenant  has  left.^i  Ilis  action  in  removing  the  goods 
in  order  to  deliver  them  to  his  former  tenant,  which  he  is  unable 
to  do,  owing  to  the  latter 's  refusal  to  receive  them,  evidently  does 
not  constitute  a  conversion.32  The  landlord  can  obviously  not 
be  held  liable  for  the  value  of  the  goods  as  a  purchaser  thereof 
merely  because  the  tenant  failed  to  remove  them.33 

The  landlord  is  not  liable,  it  has  been  held,  for  injuries  to 
the  tenant's  property  caused  by  blasting  operations  properly 
conducted  by  him  on  neighboring  property,  the  tenant  having  re- 
fused to  remove  such  property  at  the  end  of  the  tenaney.^^'*  And 
it  has  been  decided  that,  on  condemnation  of  land  for  railroad 
purposes,  the  railway  company  is  not  liable  for  injuries  to  ar- 
ticles belonging  to  a  tenant  at  will,  caused  by  the  destruction 
of  the  building  on  the  land,  he  having  failed  to  remove  such  ar- 
ticles after  reasonable  notice.^s 

Compare  ante,  §  216  d;   post,  §  285,  and   the  lessor  was  held   liable   for 

at  notes  543-546.  the  value  thereof. 

28  Burk  V.  Dempster,  34  Neb.  426,  si  Blackwell   v.  Baily,  1   Mo.  App. 

61  N.  W.  976.  328;    Schwulst   v.   Neely    (Tex.    Civ. 

20  Preston   v.  Neale,  78  Mass.    (12  App.)    50  S.   W.   608. 

Gray)    222.  '•^~  Browder   v.   Phinney,   37    Wash. 

80  Smith  V.  Boyle,  66  Neb.  823.  92  70,   79  Pac.   598. 

N.   W.   1018,   103   Am.   St.  Rep.   745;  33  Hindman  v.   Edgar,  24   Or.   581. 

Watts  V.  Lehman,  107  Pa.  106;  Voss  17  Pac.  862. 

V.  Bassett,  4  Tex.  Civ.  App.  177,  115  34  Emry  v.  Roanoke  Nav.  &  Water- 

S.  W.  503;    Vilas  v.  Mason,  25  Wis.  Power  Co.,  Ill  N.  C.  94,  16  S.  E.  18; 

310.     See  Morris  v.  Pratt,  114  La.  98,  17  L.   R.  A.  699. 

38   So.    70,   where   the   goods   which  sts  Lyons  v.   Philadelphia  &  R.   R. 

the  lessor  refused  to  allow  the  les-  Co.,  209  Pa.  550,  58  Atl.  924. 
Bee  to  remove  were  destroyed  by  fire 


CHAPTER  XXVI. 

OPTION  OF  PURCHASE  IN  TENANT. 

§  256.  Nature  and  validity  of  the  stipulation. 

257.  Option  as  interest  in  land. 

258.  Alternative  right  in  lessor. 

259.  Right  of  "refusal"  in  tenant. 

260.  Conditions  for  exercise  of  option. 

261.  Time  for  exercise  of  option. 

262.  Mode  of  exercise  of  option. 

263.  Payment  or  tender  of  price. 

264.  Exercise  as  to  part  of  premises. 

265.  Effect  of  exercise. 

266.  Sufficiency  of  conveyance. 

267.  Change  of  parties  to  the  tenancy. 

268.  Remedy  for  breach  of  stipulation. 

269.  Statutory  provisions. 

§  256.    Nature  and  validity  of  the  stipulation. 

An  instrument  of  lease  quite  frequently  contains  a  provision 
giving  the  lessee  the  right  to  purchase  the  reversion  in  the  prem- 
ises should  he  so  desire. 

The  existence  of  such  an  option  in  no  way  affects  the  relation 
of  landlord  or  tenant,  nor  the  latter 's  liability  for  rent/  even 
though  it  is  afterwards  exercised,^  and  so  the  owner  of  the  land 
may,  after  giving  an  option  on  the  land  to  another,  give  a  lease 
to  the  latter  Avithout  affecting  the  option.^  That  the  presence 
of  an  option  of  purchase  does  not  affect  the  operation  of  the  lease 
as  creating  the  relation  of  tenancy  is  assumed  in  near}y  all  the 

1  Smith  V.  Brannan,  13  Cal.  107;  and  see  cases  cited  ante,  §  43  d. 

Gilbert    v.    Port,    28    Ohio    St.    276;  2  Granger  v.  Riggs,  118  Ga.  164,  44 

Hand    v.    Williamsburgh    City    Fire  S.  E.  983. 

Ins.    Co.,    57    N.    Y.    41;    Clifford   v.  3  Wade  v.  South  Penn  Oil  Co.,  45 

Gressinger,  96  Ga.  789,  22  S.  E.  399.  W.  Va.  380,  32  S.  E.  169. 


§  256 


VALIDITY  OF  STIPULATION. 


1675 


cases  on  the  subject,  and  any  statements  to  the  contrary^  must, 
it  is  conceived,  be  based  on  a  misapprehension.  The  question 
whether  the  relation  of  tenancy  is  terminated  by  the  actual  ex- 
ercise of  the  option  is  referf ed  to  below.^ 

A  provision  of  this  character  is  not  invalid  for  want  of  "mu- 
tuality" because  it  binds  the  lessor  to  sell  and  does  not  bind  the 
lessee  to  buy.«  Nor  is  there,  ordinarily  at  least,  any  lack  of  con- 
sideration to  support  the  lessor's  agreement  in  this  regard,  this 
being  supplied  by  the  lessee's  agreement  to  pay  rent  or  assume 
other  burdens  in  connection  with  the  land.'^  Even  apart  from 
any  consideration  issuing  from  the  lessee,  the  option  would  be 
binding  upon  the  lessor  if  under  his  seal.^ 

The  instrument  of  lease,  in  giving  an  option  to  the  lessee  to 
purchase,  need  not  specify  the  price,  but  it  is  sufficient  if  it  pro- 
vides that  the  price  shall  be  fixed  by  appraisement,^  or  by  the 
amount  which  a  third  person  may  offer  to  pay.i<>     But  the  price 


4  See  Nightingale  v.  Barens,  47 
Wis.  389,  2  N.  W.  767;  Reader  v. 
Bell.  70  Ky.  (7  Bush)  255;  Thal- 
heimer  v.  Tischler  (Fla.)  46  So.  514, 
infra,  note  22. 

•>  See  post,  §  265. 

oMarske  v.  Willard,  169  111.  276, 
48  N.  E.  290;  Lazarus  v.  Heilman, 
11  Abb.  N.  C.  (N.  Y.)  93;  De  Kutte 
V.  Muldrow,  16  Cal.  505. 

^  Walker  v.  Edmundson,  111  Ga. 
454,  36  S.  E.  800;  Hayes  v.  O'Brien, 
149  111.  403,  37  N.  E.  73,  23  L.  R.  A. 
555;  Howralty  v.  Warren,  18  N.  J. 
Eq.  (3  C.  E.  Green)  124,  90  Am.  Dec. 
613;  Waters  v.  Bew,  52  N.  J.  Eq.  787, 
29  Atl.  590;  Schroeder  v.  Gemeinder, 
10  Nev.  355;  Bank  of  Louisville  v. 
Baumeister,  87  Ky.  6,  7  S.  W.  170; 
Heyward  v.  Willmarth,  87  App.  Div. 
125,  84  N.  Y.  Supp.  75;  Tilton  v. 
Sterling  Coal  &  Coke  Co.,  28  Utah, 
173,  77  Pac.  758,  107  Am.  St.  Rep. 
689.  It  is  immaterial  in  this  re- 
gard that  the  rent  paid  is,  in  case  of 
exercise  of  the  option,  to  be  applied 
on  the  price.  Brink  v.  Mitchell,  135 
Wis.  416,  116  N.  W.  16. 


In  Frank  v.  Stratford-Handcock, 
13  Wyo.  37,  77  Pac.  134,  67  L.  R.  A. 
571,  110  Am.  St.  Rep.  963,  it  was  held 
that  a  provision  that  the  lessee  shall 
deposit  a  sum  as  security  for  the 
performance  of  her  covenants  in  the 
lease  was  a  condition  precedent  to 
its  operation,  without  compliance 
with  which  the  lease  was  not  effec- 
tive, and  that  consequently  there 
was  no  consideration  to  support  a 
contract  to  sell  to  the  lessee  at  his 
option.  Ordinarily  the  making  of 
an  instrument  which  would  be  effec- 
tive in  a  certain  contingency  would 
be  regarded  as  a  sufficient  consider- 
ation  for  a  promise. 

8  Willard  v.  Tayloe,  75  U.  S.  (8 
Wall.)  557. 

0  See  Coles  v.  Peck,  96  Ind.  333,  49 
Am.  Rep.  161;  Washburn  v.  White, 
197  Mass.  540,  84  N.  E.  106. 

10  Slaughter  v.  Mallett  I..and  & 
Cattle  Co.,  72  C.  C.  A.  430,  141  Fed. 
282;  Hayes  v.  O'Brien,  149  111.  403, 
37  N.  E.  73,  23  L.  R.  A.  555;  Marske 
v.  Willard,  169  111.  276,  48  N.  E.  290. 
See  DeVitt  v.  Kaufman  County,  27 


■^QjQ  OPTION  OF  PURCHASE.  §  256 

must  be  specified  or  some  method  named  for  its  aseertainracnt.^i 
A  covenant  by  the  lessor,  in  case  the  lessees  shall  "then"  be  ten- 
ants of  the  premises,  to  "first"  ofl'er  the  property  for  sale  to 
them  at  a  price  named,  was  held  to  be  too  ambiguous  to  be  spe- 
cifically enforced.i2 

It  has  been  decided  by  an  English  judge  that  an  option  of  pur- 
chase, contained  in  a  lease  for  ninety-nine  years,  and  exercisable 
at  any  time  during  the  term,  is  invalid,  in  the  view  of  a  court  of 
equity,  as  creating  an  equitable  interest  which  may  arise  after 
the  period  named  by  the  rule  against  perpetuities.i^  The  same 
iudge  has  decided  that,  in  the  view  of  a  court  of  law,  for  the  pur- 
pose of  an  action  to  recover  damages  for  breach  of  the  contract 
to  convey  at  the  lessee's  option,  the  contract  is  valid  although 
there  is  no  limit  as  to  the  time  of  its  exercise.i^  The  view  that 
such  an  option,  exercisable  at  a  remote  time,  is  invalid  under  the 
rule,  is  strongly  asserted  by  writers  of  eminence,  without  any 
suggestion  of  a  distinction  between  courts  of  law  and  equity 
in  this  respect.15  On  the  other  hand,  no  suggestion  appears  in 
any  reported  case  in  this  country  questioning  the  validity  of  a 
provision  of  this  character  by  reason  of  the  possible  remoteness 
of  the  exercise  of  the  option.^^     Conceding  that,  in  any  particular 

Tex.   Civ.  App.   332,   66   S.   W.   224;  i4  Worthing     Corp.      v.     Heather 

Callaghan  v.  Hawkes,  121  Mass.  298.  [1906]  2  Ch.  532.     See  the  criticisms 

11  Polsom  V.  Harr,  218  111.  369,  75  of  this  case  in  51  Solicitors'  Journal, 
N.  E.  987,  109  Am.  St.  Rep.  297;  at  pp.  648,  669;  20  Harv.  Law  Rev., 
Fogg  v.  Price,  145  Mass.  513,  14  N.  at  p.   240. 

E.   741;    Smoyer  v.   Roth    (Pa.)    13  is  See  Gray,  Perpetuities  (2d  Ed.) 

Atl.  191.  §    230   b;    articles  by   Cyprian   Wil- 

An  option  to  purchase  "at  a  price  liams  in  42  Solicitors'  Journal,  at  pp. 

not  to  exceed  $3,000"  is  sufficiently  630,  650.     Compare  the  adverse  view 

specific,  it  being  in  effect  an  option  as  stated  in  51  Solicitors'  Journal,  at 

to  purchase  at  ?3,000.     Heyward  v.  p.   319. 

Willmarth,  87  App.  Div.  125,  84  N.  i6  it  has  recently  been  decided  in 

Y.  Supp.  75.     To  the  same  effect  is  Maryland  that  an  option  of  purchase, 

Wright  V.  Kaynor,  150  Mich..  7,  113  in  connection  with  a  lease  for  nine- 

N.  W.  779.  ty-nine   years,  renewable  forever,   a 

12  Buckmaster  v.  Thompson,  36  N.  very  common  form  of  lease  in  that 
Y.  558.  jurisdiction,  does  not  violate  the  rule 

13  Warrington,  J.,  in  Woodall  v.  against  perpetuities.  Hollander  v. 
Clifton  (1905)  2  Cb.  257.  The  case  Central  Metal  &  Supply  Co.  (Md.) 
was,  on  appeal,  decided  on  another    71  Atl.  442. 

point.     See  post,  note  98. 


§  258  Alternative  right  in  lessor.  I677 

jurisdiction,  the  view  first  stated  might  possibly  be  adopted,  it 
is  expedient,  when  inserting  such  a  provision  in  a  lease  for  twen- 
ty-one years  or  more,  to  limit  the  period  within  which  the  option 
may  be  exercised  to  that  named  by  the  rule  against  perpetuities. 

§  257.     Option  as  interest  in  land. 

The  fact  that  the  lease  gives  the  lessee  an  option  to  purchase 
the  land  gives  him  no  additional  interest  in  pracsenti  in  the  land 
itself,  but  merely  a  right  of  personal  recourse  against  the  lessor,^ '^ 
it  being  in  effect  merely  a  continuous  offer  by  the  lessor  to  the 
lessee  on  the  terms  mentioned,  which  he  has  no  right  to  with- 
draw.18  So  it  has  been  held  that  the  lessee  has  no  interest  in 
the  land,  by  reason  of  the  option,  which  he  can  mortgage,^^  or 
which  can  be  subjected  to  the  claims  of  his  creditors.^o  In  one 
state,  however,  it  has  been  decided  that  the  lessee  had  an  interest 
under  such  an  option  which  might  be  mortgaged,  under  a  local 
statute  providing  that  "any  interest  in  or  claim  to  real  estate 
may  be  disposed  of  by  deed  or  will  in  writing,"  and  that  the 
rights  of  such  mortgagee  were  prior  to  those  of  one  to  whom  the 
lessee  mortgaged  the  land  after  exercising  the  option.21  And  in 
another  state  it  was  held  that  the  option  has  the  effect  of  creat- 
ing an  "amalgam"  of  legal  and  equitable  interests,  which  pre- 
cludes a  sale  of  the  lessee's  interest  in  the  land  as  leasehold 
property ,22  a  most  questionable  view,  it  is  submitted. 

§  258.    Alternative  right  in  lessor. 

Occasionally  the  lease  imposes  an  obligation  upon  the  lessor 
to  sell  to  the  lessee  or  to  do  something  else  in  the  alternative.  In 
such  eases  the  question  whether  tlie  election  between  the  two  al- 
ternatives is  with  the  lessor  or  lessee  may  arise.  Where  the 
lease  provided  that  the  lessor  would  convey  a  certain  part  of  the 

17  Bras  V.  Sheirleld,  49  Kan.  702,  31  i9  Conn  v.  Tanner,  86  Iowa,  577,  53 
Pac.  306,  33  Am.  St.  Rep.  386;  Elder  N.  W.  320;  Bras  v.  Sheffield,  49  Kan 
V.  Robinson,  19  Pa.  364.  702,  31  Pac.  306,  33  Am.  St.  Rep.  386 

iswillard  v.  Tayloe,  75  U.  S.    (8 
Wall.)  557;  King  v.  Raab,  123  Iowa, 
632,  99  N.  W.  306;  De  Rutte  v.  Mul- 
drow,    16    Cal.    505.     It    cannot    be       ^i  Bank  of  Louisville  v.  Baumeis- 
withdrawn  because  the  lessee  makes    *^^'  ^"^  ^y-  ^'  "^  S-  W.  170. 
a   counter    proposition.     McCormick       22  Thalheimer    v.    Tischler    (Fla.) 
V.  Stephany,  61  N.  J.  Eq.  208,  48  Atl.    46  So.  514. 
25. 


20  Sweezy  v.  Jones,  65  Iowa,  272,  21 
N.  W.  603. 


1678  OPTION  OP  PURCHASE.  §  259 

premises  to  the  lessee,  or  would  sell  a  certain  other  part  at  a 
price  to  be  fixed  by  appraisement,  it  was  held  that  the  lessor, 
and  not  the  lessee,  had  the  rierht  of  election,  in  accordance  with 
the  rule  in  the  old  books  that  the  person  who  is  to  do  the  first 
act  has  the  right  of  election  f^  and  there  was  a  like  holding  when 
the  lessor  covenanted  tliat  he  would  renew  or  would  sell  to  the 
lessor,  it  being  decided  that  the  lessee  must  make  his  request  in 
the  alternative  for  a  compliance  with  the  covenarit.-^  But  it 
was  in  another  case  decided  that  if  the  lessor  failed  to  make  his 
election  in  such  a  case,  the  right  to  make  the  election  passed  to 
the  lessee.25  A  provision  that  the  lessee  might  buy  the  land  "at 
the  option  of  the  parties"  was  construed  as  meaning  at  the  les- 
see's option,  since  otherwise  it  would  be  meaningless  and  nuga- 
tory .^^ 

§  259.    Right  of  "refusal"  in  tenant. 

Occasionally  the  lessee  is  given  an  option  to  purchase,  not  en- 
tirely at  his  OAvn  election,  but  upon  the  lessor's  desiring  to  sell, 
that  is,  he  is  given  the  "refusal."  It  was  held  that  a  covenant 
in  a  lease  to  convey  the  property  to  the  lessee  when  the  lessor 
"should  find  a  purchaser,"  if  the  lessee  desired  the  property  at 
a  certain  price  named,  became  obligatory  when  the  lessor  found  a 
person  able  and  willing  to  pay  the  lessor's  price  for  the  prop- 
erty.^'^  When  a  lease  reserved  to  the  lessor  the  right  to  sell  the 
land  at  any  time  and  terminate  the  lease  at  the  end  of  any  rental 
year,  "provided"  he  gave  six  months'  notice  prior  to  the  end 
of  the  year,  and  "provided  also"  the  lessee  should  have  the 
privilege  of  buying  the  land  at  such  price  as  the  lessor  might 
see  fit  to  accept,  and  which  might  be  offered  by  any  other  person, 
it  was  held  that  the  option  to  buy  was  not  unconditional,  but 

23  Duke  V.  Griffith,  13  Utah,  361,  to  be  under  no  obligation  to  do 
45  Pac.  276,  57  Am.  St.  Rep.  766,  cit-  either.  Pearce  v.  Turner,  150  111. 
ing  3  Bac.  Abr.  109;  Co.  Litt.  145  a.  116,  36  N.  E.  962. 

24  Baumman  v.  Binzen,  65  Hun,  39,  2s  Coles  v.  Peck,  96  Ind.  333,  49 
19  N.  Y.   Supp.   627;    Id.,   142  N.   Y.  Am.  Rep.  161. 

G36,  37  N.  E.  566.  26  Mack    v.    Dailey,    67   Vt.    90,    30 

A  lessor  who  was  given  "tho  priv-  Atl.  686. 

liege"  of  renewing  or  of  selling  tlie  2t  McCormick  v.   Stephany,   61   N. 

property  at  a  price  named  was  held  J.  Eq.  208,  48  Atl.  25. 


&  259  RIGHT  OF  REFUSAL  IN  TENANT.  1679 

applied  only  in  case  the  lessor  elected  to  terminate  the  lease  by 
making  a  sale.^s 

A  provision  that  the  lessor  might  sell  the  premises   at  any 
time   by  -iving  the  lessee  two  months'  notice  and  the  privilege 
of  purchase  at  the  price  offered,  was  held  to  apply  only  to  a 
sale  involving  a  termination  of  the  lease,  and  that  the  lessor  had 
a  perfect  right  to  sell  subject  to  the  lease,  without  givmg  the 
lessee  the  privilege  of  purchase  ;2«  and  it  was  even  decided  that 
a  provision  giving  the  lessee  the  first  option  of  purchase,  con- 
tained in  a  lease  for  two  years,  with  a  right  of  extension  for  four 
more,  which  also  gave  the  lessor  the  right  to  sell,  was  intended 
merely  to  secure  to  the  lessee  the  enjoyment  of  the  fall  term  ot 
six  years,  and  that  the  lessor  had  a  perfect  right,  without  giving 
the  lessee  an  opportunity  to  purchase,  to  sell  and  convey  to  a 
third  person  subject  to  the  lease.3o     a  lease  giving  the  lessees 
"the  first  privilege  of  buying  said  premises,  at  any  time  they  may 
wish  to  do  so,"  at  a  price  named,  was  construed  as  requirmg 
the  lessor  to  give  the  lessees  the  privilege  of  buying  at  that  price 
in  case  he  wished  to  sell,  and  as  giving  the  lessees  the  option  to 
buy  at  that  price  at  any  time  until  they  refused  to  buy  upon  no- 
tice from  the  lessor.^i 

In  case  the  lease  provides  that  the  lessee  may  purchase  upon 
the  lessor's  giving  notice  of  an  offer  for  the  property  by  a  third 
person,  the  person  to  give  the  notice  is  the  lessor,  and  not  the 
person  who  made  the  offer,  although  the  lessor  has  conveyed  to 
such  person  before  the  making  of  such  offer.32 

In  case  of  such  a  right  of  "refusal,"  the  landlord  cannot,  it 
is  obvious,  deprive  the  tenant  of  the  benefit  of  the  lease  by  offer- 
in-  to  sell  to  him  at  a  price  falsely  asserted  by  the  landlord  to 
have  been  offered  him  for  the  property,  and  then  making  a  mere- 
ly colorable  conveyance  to  another  in  accordance  with  such 
pretended  offer.^s 

28  DeVitt  V.  Kaufman  County,   27  3i  Schroeder  v.  Gemeinder,  10  Nev. 

Tex    Civ.  App.  332,  60  S.  W.  224.  355. 

29Callaglian  v.  Hawkes,  121  Mass.  32  Harding  v.  Gibbs,  125  111.  85,  17 

298  N.  E.  60,  8  Am.  St.  Rep.  345. 

30Blanchard   v.    Ames,    60    N.    H.  33  Ogle  v.  Hubbel,  1  Cal.  App.  357. 


404. 


82  Pac.  217. 


2630  OPTION  OF  PURCHASE.  §  260 

§  260.    Conditions  for  exercise  of  option. 

If  the  right  to  buy  is  expressly  made  condition.il  npon  the  per- 
formance of  particular  stipulations  by  the  lessee,  he  cannot 
exercise  the  right  without  due  performance  thereof.^^  But  the 
fact  that  the  lessee  has  not  complied  with  all  his  covenants  would 
not  preclude  him  from  enforcing  his  claim  to  purchase,  unless 
his  option  is,  upon  a  construction  of  the  whole  lease,  dependent 
upon  compliance  with  his  eovenauts.^^ 

The  acceptance  of  rent,  without  objection,  by  the  landlord, 
after  it  becomes  due,  has  been  held  to  constitute  a  waiver  of  the 
provision  of  the  lease  as  to  the  time  of  its  payment,  so  that  the 
lessee  may  thereafter  exercise  the  option,  although  the  lease  ex- 
pressly makes  it  dependent  upon  the  lessee's  compliance  with  its 
stipulations.^^  But  a  different  view  was  taken  when  the  lease 
expressly  provided  for  a  forfeiture  of  the  option  in  case  of  fail- 
ure to  pay  the  rent  at  maturity.^' 

The  lessee's  breach  of  his  covenant  to  pay  taxes  will,  it  has  been 
decided,  not  justify  the  lessor's  refusal  to  comply  with  the  op- 
tion, if  the  lessee,  on  tendering  the  price  named,  also  tenders 
sufficient  to  cover  the  amount  of  the  taxes  and  all  possible  dam- 
age from  the  breach.^s  And  it  has  been  decided  that  the  option 
is  not  forfeited  by  failure  to  pay  the  taxes  when  due  and  payable, 
though  the  lease  provides  for  a  conveyance  to  the  lessee  for  a 
certain  sum  upon  payment  of  taxes.^^ 

It  is  a  question  of  construction  whether  a  re-entry  by  the  les- 

34  See  Ball  v.  Canada  Co.,  24  And  so  in  Raffety  v.  Schofield 
Grant's  Ch.  281;  Mack  v.  Dailey,  67  [1897]  1  Ch.  937,  it  was  held  that  a 
Vt.  90,  30  Atl.  686;  Carpenter  v.  default  by  one  under  a  building 
Thornburn,  76  Ark.  578,  89  S.  W.  agreement  which  gave  him  a  right 
1047;  Ostrander  v.  Livingston,  3  to  a  lease  upon  performance  by  him, 
Barb.  Ch.  (N,  Y.)  416.  and  also  gave  him  an  option  of  pur- 

35  In  Green  -v.  Low,  22  Beav.  625,  cha?G,  did  not  prevent  his  exercise 
it  was  held,  on  a  construction  of  a  of  the  option  of  purchase, 
contract  by  which  A  agreed  to  grant        3o  Mack   v.   Dailey,   67   Vt.    90,   30 
a  lease  to  B  provided  B  would  build  Atl    686. 

on  the   land   and    insure   the    build-  st  Brown    v.    Larry    (Ala.)    44    So. 

ing,  and  which  also  gave  B  the  op-  841. 

tion  to  purchase  \\ithin  two  years,  s'*  Bell  v.  Wright    31  Kan.  236,  1 

that  the  option  to  purchase  was  In-  Pac.  595. 

dependent  of   his  right  to   a   lease,  39  Brink  v.  Mitchell,  135  "Wis.  416, 

and  that  his  default  in  insuring  did  116  N.  W.  16.     But  compare  Ball  v. 

not    affect    his    right    to    purchase.  Canada  Co.,  24  Grant's  Ch.  281. 


^  261  TIME  FOR  EXERCISE.  1681 

sor  for  a  breach  of  condition  by  the  lessee  terminates  the  right  to 

exercise  the  option.^o     Even  in  the  case  of  an  express  stipulation 

that  the  option  might  be  annulled  on  breach  of  a  covenant,  it  has 

been  regarded  as  a  question  of  construction  whether  a  mere  delay 

in  performance  is  a  breach  within  the  meaning  of  the  stipu- 

lation.41 

§  261.    Time  for  exercise  of  option. 

AVhen  the  lessor's  covenant  to  sell  to  the  lessee  at  the  latter 's 
option  names  a  time  within  which  the  option  must  be  exercised, 
such  provision  as  to  time  is  usually  regarded  as  of  the  essence  of 
the  contract,  so  that  the  covenant  will  not  be  enforced  in  case 
of  delay  by  the  lessee,'*-  and  equity  will  not  extend  the  time,  since 
it  looks  with  special  strictness  upon  a  provision  as  to  time  in  a 
contract  by  which  one  party  and  not  the  other  is  bound.-^^ 

Ordinarily  the  lease  provides  that  the  option  shall  be  exercised 
during  the  term  of  the  lease.  It  has  been  held  that,  where  the 
lease  so  provided,  it  could  not  be  contended  that  a  statute,  au- 
thorizing a  landlord  to  treat  a  tenant  as  holding  over  his  term 
when  he  neglects  to  pay  rent,-'^'^  had  the  effect  of  terminating 
the  lease  by  reason  of  his  nonpayment  of  rent  for  the  month  in 
which  he  exercised  the  option,  so  as  to  render  such  exercise  in- 
valid, since  the  lessee,  having  exercised  the  option,  became  owner 
before  the  rent  became  due.^*  The  fact  that  the  lessee  held  over 
and  the  lessor  accepted  rent  from  him  after  the  term  has  been 
regarded  as  showing  that  the  provision  that  the  option  to  pur- 
chase should  be  exercised  during  the  term  was  not  of  the  essence 
of  the  contract.^'' 

40  In  Ober  v.  Brooks,  162  Mass.  102,  117;  Atlantic  Product  Co.  v.  Dunn, 
38  N.  E.  429,  the  lease  was  regarded  142  N.  C.  471,  55  S.  E.  299;  Kruegel 
as  showing  an  intention  that  the  v.  Berry,  75  Tex.  230,  9  S.  W.  863; 
option  should  be  exercised  only  by  Harding  v.  Gibbs,  125  111.  85,  17  N. 
a  tenant,  and  consequently  the  right  E.  60,  8  Am.  St.  Rep.  345;  Ranelagh 
of  purchase  ceased  with  the  re-entry,  v.  Melton,  2  Drew.  &  S.  278. 

In  Matthews  Slate  Co.  v.  New  Em-  43  See   Fry,    Specific    Performance 

pire    Slate    Co.,    122    Fed.    972,    the  (4th  Ed.)  §  1103;  Maughlin  v.  Perry, 

lease   received  a  different  construe-  35  Md.  352. 

tion.  ^"'^  See  post,  §  274  d. 

41  Merrill  v.  Hexter  (Or.)  94  Pac.  44  Smith  v.  Gibson,  25  Neb.  511,  41 
972.     Compare     Brown     v.     Larry  N.  W.  360. 

(Ala.)  44  So.  841,  ante,  note  37.  46  D'Arras  v.  Keyser,  26  Pa.  249. 

42  See  TJpher  v.  I-iv^rmore,  2  Iowa, 

L   and  Ten.  106 


1682  OPTION  OF  PURCHASE.  §  261 

A  provision  that  the  lessor  ''will  at  any  time  during  the  ten- 
ancy hereby  created  or  agreed  upon,  sell  and  convey"  to  the 
lessee  vv^as  held  to  give  the  right  to  a  conveyance  during  a  re- 
newal term,  this  having  been  "agreed  upon"  in  the  lease.''*'  And 
it  was  held  that  when  a  lease  for  a  year  gave  the  tenant  a  riglit 
to  extend  the  term  from  year  to  year,  and  also  to  buy  th**  land 
during  the  original  year,  or  during  any  extension,  the  lessee  could 
exercise  his  option  during  a  second  year's  lease,  though  this  omit- 
ted all  reference  to  the  option,  it  having  been  mutually  und»^r- 
stood  that  the  option  should  continue.'*'^  And  an  option  to  buy  at 
any  time  has  been  regarded  as  existing  during  a  renewal  term, 
created  in  accordance  with  the  provisions  of  the  lease.'*^ 

A  provision  that  the  option  may  be  exercised  "at  the  expira- 
tion" of  the  term  has  in  one  state  been  regarded  as  requiring 
the  option  to  be  exercised  on  the  last  day  of  the  term  at  lat^st.''^ 
In  another  state  such  a  provision  was  held  to  give  the  entire  next 
day  for  the  exercise  of  the  option.'^" 

It  has  been  said  that  when  there  is  no  time  named  for  the 
exercise  of  the  option  but  the  lessor  agrees  to  convey  "at  any 
time,"  the  fact  that  the  lease  has  come  to  an  end  is  immaterial."*^ 
But  in  another  case  it  is  asserted  that  even  if  by  the  terras  of 
the  lease  the  option  does  not  expire  at  the  end  of  the  term,  the 
lessor  may  revoke  it  at  any  time  thereafter,  as  by  a  sale  and  con- 
veyance to  another  person.^^     The   question  whether,  when  no 

46  Trustees  of  Congregation  of  either  party  to  terminate  the  lease 
Sons  of  Abraham  v.  Gerbert,  57  N.  at  the  end  of  any  term.  It  was  al- 
J.  Law,  395,  31  Atl.  383.  Compare  so  provided  that  the  tenant  should 
Atlantic  Product  Co.  v.  Dunn,  142  have  the  right  to  purchase  the  prop- 
N.  C.  471,  55  S.  E.  299.  erty  "at  the  end  of  said  term"  for  a 

47  Abbott  V.  Seventy-Six  Land  &  price  named.  It  was  decided  that 
Water  Co.,  87  Cal.  323,  25  Pac.  693.  the    option    could    be    exercised    at 

4s  Schroeder  v.  Gemeinder,  10  Nev.  the  end  of  any  year,  so  long  as  the 

355  tenancy  endured. 

In    Thomas    v.    Gottlieb,    Bauern-  49  Tilton  v.  Sterling  Coal  &  Coke 

Schmidt,  Straus  Brew.  Co.,  102  Md.  Co.,  28  Utah,  173,  77  Pac.   758,  107 

417,  62  Atl.  633,  there  was     a  lease  Am.  St.  Rep.  689. 

for   a   year,    with   a  provision    that  5o  Herman  v.  Winter.  20  S.  D.  196, 

"this  agreement,  with  all  its  provi-  105  N.  W.  457. 

sions  and  covenants,  shall  continue  si  prout    v.    Roby,    82    U.    S.    (15 

in   force  from   term   to   term,   after  Wall.)  471. 

the    expiration    of   the    term    above  52  McCauley  v.  Coe,  150  111.  311,  37 

mentioned,"  subject  to  the  right  of  N.  E.  232. 


§  2G3  PAYMENT   OR  TENDER  OF  PRICE.  1683 

time  is  specifically  named,  the  lessee's  option  will  expire  at  the 
end  of  the  term  of  the  lease,  is  no  doubt  one  of  con&tructiou 
upon  a  consideration  of  the  instrument  as  a  whole. 

§  262.    Mode  of  exercise  of  option. 

It  has  been  decided  that,  where  the  option  to  purchase  is  con- 
tained in  a  lease  signed  by  the  lessor,  the  fact  that  the  lessee's 
exercise  of  the  option  is  oral  does  not  render  it  invalid  under  the 
provision  of  the  Statute  of  Frauds  requirinf?  the  contract,  or 
some  note  or  memorandum  thereof,  to  be  in  writing  and  signed 
by  the  party  by  whom  the  sale  is  to  be  made.^^ 

Any  stipulation  as  to  the  notice  necessary  in  exercising  the 
option  must,  it  seems,  be  strictly  complied  with,  and  it  was  held 
that  where,  in  a  lease  by  three  trustees,  the  lessee  was  given  an 
option  to  purchase  at  any  time  during  the  term  on  giving  written 
notice  "to  the  said  lessors  or  the  survivors  or  survivor  of  them," 
a  notice  given  to  one  only  of  the  trustees,  they  being  all  alive, 
was  ineffectual.^^  And  where  the  lessee  was  given  the  right  to 
purchase  within  five  years,  upon  giving  thirty  days'  notice,  he 
could  not  exercise  the  right,  it  was  decided,  if  he  did  not  give 
notice  till  two  days  before  the  end  of  the  five  years.^^ 

§  263.    Payment  or  tender  of  price. 

It  has  been  decided  in  England  that,  when  the  tenant  was  to 
have  the  option  of  purchase  at  any  time  during  the  term  for  a 
specified  sum,  and  upon  payment  of  such  sum,  the  term  and  the 
rent  were  to  cease  and  he  to  be  entitled  to  a  conveyance,  a 
notice  by  the  lessee  of  his  election  to  exercise  the  option  was  bind- 
ing on  the  lessor  without  payment  of  tlie  purchase  money .^^  In 
another  case  it  was  decided  that,  under  an  undertaking  to  sell 
in  case  the  lessees  should  desire  to  purchase,  and  should  give  no- 
tice to  that  effect,  and  should  pay  the  purchase  money,  the  pay- 
ment of  the  money  was  necessary  to  the  creation  of  a  binding 

53  Smith   V.   Gibson,    25   Neb.    511,  b4  Sutcliffe  v.  Wardle,   63  Law  T. 

41  N.  W.  360.     But  the  terms  of  the  (N.  S.)    329. 

option  may  require  an  acceptance  in  55  Mason  v.  Payne,  47  Mo.  517. 

writing.    See  Birmingham  Canal  Co.  sc  Mills    v.   Haywood,    6    Ch.    Div. 

V.  Cartwright,  11  Ch.  Div.  421.  196. 


1684  OPTION  OF  PURCHASE.  §  263 

contract;''^  and  it  has  likewise  been  held  that,  though  the  lessee 
gave  the  required  notice  of  his  exercise  of  the  option,  yet  if  he 
failed  to  pay  the  purchase  price  at  the  expiration  of  the  notice, 
as  provided  in  the  lease,  he  lost  his  right  to  purchase.^^ 

In  this  country,  also,  the  payment  or  tender  of  the  purchase 
price  has  occasionally  been  regarded  as  an  integral  part  of  the 
exercise  of  the  option,  as  when  the  liability  for  rent  was  held  to 
continue  until  such  payment  or  tender,^®  or  when  it  was  said 
that  the  lessee  cannot,  until  he  actually  tenders  the  price,  com- 
plain that  the  lessor  has  not  complied  with  his  contract.^"  So  it 
has  been  decided  that  a  provision  that  the  improvements  should 
go  to  the  lessor,  in  case  the  lessee  should  not  purchase  the  prem- 
ises, became  operative  if  the  purchase  price  was  never  paid,  even 
though  the  lessee  agreed  to  purchase  and  took  a  bond  for  title  ;^^ 
and  when  the  lessee  Avas  given  the  privilege  of  purchase  "at  any 
time  before  the  expiration  of  this  lease"  for  a  sum  named,  "to 
be  paid  down  in  cash  upon  the  demand  of  a  deed  prior  to  the 
expiration  of  this  lease,"  payment  or  tender  of  the  sum  named 
within  the  time  named  was  regarded  as  essential.^-  On  the 
other  hand  it  has  been  decided  that  if  the  lessor  refused  to  con- 
vey, upon  being  notified  by  the  lessee  of  his  desire  to  exercise 
the  option,  no  tender  of  the  price  was  necessary  as  a  prerequisite 
to  an  action  for  specific  performance.^^  The  cases  bearing  on 
the  question  are  generally  obscure '  and  unsatisfactory,  but  it 
would  seem  to  be,  in  each  case,  a  matter  for  determination  with 
reference  to  the  language  of  the  particular  contract. 

In  a  few  eases  the  fact  that  the  purchase  price  was  not  paid 
within  the  time  specified  has  been  regarded  as  not  excluding  the 

B7  Weston  V.  Collins,  34  Law  J.  Ch,  That  the  lease  gave  the  tenant  the 

353.  right  to   apply  upon   the  price   the 

58  Ranelagh  v.  Melton,  2  Drew.  &  fund  obtained  by  a  sale  of  the  pro- 
S.  278.  ducts  of  the  leased  premises,  a  farm, 

59  See   post,   at   notes    73-76.  y^g^^  j^eld  not  to  require  him  to  use 

60  Heine  v.  Treadwell,  72  Cal.  217.  ^nly  such  fund  for  the  purpose,  the 

10     Pop        KO'i 

la  r-cvc.  oyjo.  amount  SO  realizable  within  the  peri- 

01  Merrltt  v.  Judd,  14  Cal.  59.  ,  ^    ^       ^v,  •         .   .v 

.-    ,.,    od   named    for   the   exercise   of   the 

02  Steele  v.  Bond,  32  Mmn.  14,  18        ^.       ^  .  .,.«,.     .. 

option  being  necessarily  insufficient 
N.   W.    830.  /    ,^  T,      1  •  T.      1  ■ 

03  smith  V.  Gibson,  25  Neb.  511,  41  '"^^  the  purpose.  Rankm  v.  Rankm. 
N.  W.  3R0;  Butler  v.  Threlkeld.  117    216  111.  132,  74  N.  E.  763. 

Iowa,  116,  90  N.  W.  584. 


EFFECT  OF  EXERCISE.  1685 

§  265 

lessee's  right  to  a  conveyance,  he  having  expressed  his  intention 
to  exercise  the  option  within  the  time  named.  It  was  so  decided 
when  his  failure  to  make  payment  was  owing  to  the  lessors 
fault  «^  when,  the  lessor  having  died,  the  administrator  refused 
to  receive  the  purchase  money  for  the  heirs,  who  were  infants 
and  nonresidents,^^  and  when  the  lessee  made  a^part  payment 
within  the  time,  which  was  accepted  by  the  lessor. 

§  264.    Exercise  as  to  part  of  premises. 

An  option  in  the  lessee  to  purchase  the  premises  does  not  give 
him  the  ridit  to  purchase  a  part  of  the  premises  at  a  less  pnce, 
nor  can  this  be  done  by  one  to  whom  he  has  assigned  the  lease- 
hold interest  in  a  part  of  the  premises.«s  But  it  has  been  decided 
that  the  assignee  of  an  undivided  moiety  can  compel  perform- 
ance in  equity  by  suit  in  the  name  of  all  the  owners  or,  if  they 
refuse  to  join,  by  suit  in  his  own  name  -  Where  the  lessor  ac- 
tually sold  part  of  the  premises  included  in  the  option  to  the 
lessee,  the  latter 's  rights  were  regarded  as  superior  to  those  ot 
one  to  whom  the  lessor  had  previously  contracted  to  convey  the 
land.70 

§  265.    Effect  of  exercise. 

An  exercise  of  the  option  by  the  lessee,  being  an  acceptance  by 
him  of  the  continuing  offer  made  by  the  lessor,  creates  m  effect 
a  contract  for  the  sale  of  the  land.^^  Such  a  contract  if  spe- 
cificallv  enforcible,  as  it  usually  is,  creates,  in  the  view  of  a  court 
of  equity,  an  equitable  estate  in  the  lessee  of  a  quantum  equa  to 
that  which  the  lessor  has  contracted  to  convey,  usually  the  lat- 
ter's  whole  interest,  and  in  this  the  leasehold  estate  will  merge. 
But  in  the  view  of  a  court  of  law,  until  a  conveyance  is  actually 

64Wilkinsv.ETans,lDel.Ch.l56.        6o  Van    Home    v.    Grain,    1    Paige 

6»Page  V.  Hughes.  41   Ky.    (2   B.     (N.  Y.)   455. 

4„q  ToDietz   V.   Mission  Transfer   Co., 

eenartman   v.  McAlister.   5   N.  C.    95   Cal.    92,   30  Pac.   380.     See  POSt. 

(1  Murph.)    207.  note  99.                             ,oq  t^w«    R^2 

6T  Hitchcock  V.  Page,  14  Cal.  440.  ti  See  King  v.  Raab,  123  Iowa,  632 

68  Hitchcock  V.  Page,  14  Cal.  440;  99  N.  W.  300;  Willard  v.  Taylor.  75 

Ostrander    v.    Livingston.    3    Barb.  U.  S.  (8  Wall.)  557. 

Ch.   (N,  Y.)  416. 


1686  OPTION  OF  PURCHASE.  §  265 

made,  the  lessee  is  in  the  position  merelj  of  a  tenant  having  a 
contract  for  a  conveyances^ 

There  are  decisions  to  the  effect  that  an  exercise  of  the  option, 
accompanied  by  a  tender  of  the  purchase  money,  terminates  the 
liability  for  rentJ^  In  one  state,  however,  it  has  been  decided 
that  this  does  not  occur  unless  the  tenant  in  some  manner  seeks 
enforcement  of  the  lessor's  agreement  to  sellJ^  That  the  lessee 
had  an  option  for  three  years  to  buy  at  a  price  named,  in  which 
case  the  money  paid  on  the  rent  was  to  be  credited  on  the  pur- 
chase money,  was  held  not  to  authorize  the  lessee  to  occupy  rent 
free  for  three  years  upon  giving  notice  of  his  election  to  buy, 
without  any  tender  of  the  purchase  money J'^  And  that  the  les- 
see notified  the  son  of  the  deceased  lessor  that  he  intended  to 
exercise  the  option,  and  would  pay  the  purchase  price  when  the 
probate  proceedings  were  completed  and  the  owner  could  give 
title,  and  on  the  appointment  of  the  administrator,  notified  him 
of  his  desire  to  avail  of  the  option,  without,  however,  then  paying 
the  price  because  he  had  not  the  money,  was  decided  not  to 
terminate  the  liability  for  rent."*^  When  the  purchase  price  is 
not  named,  but  is  to  be  ascertained  by  arbitration,  the  lessee  is, 
upon  exercising  the  option,  it  has  been  held,  entitled  to  remain 
rent  free  for  such  reasonable  time  as  may  be  necessary  for  the 
arbitrations'^ 

In  one  case  it  was  held  that,  the  lessee  enjoying  possession 
rent  free  after  tender  by  him  of  the  price,  he,  and  not  the  lessor, 
should  pay  the  taxes  accruing  thereafter,  although  the  lessor  had 

72  Ellis  V.  Wright,  76  Law  T.  (N.  Swanston  v.  Clark,  153  Cal.  300,  95 
S.)    522;   Doe  d.  Gray  v.   Stanion,  1    Pac.  3117. 

Mees.   &  W.    695.     But  in  Knerr  v.  74  Knowles    v.    Murphy,    107    Cal. 

Bradley,  105  Pa.  190,  the  exercise  of  107,  40  Pac.  111. 

the  option  is  regarded  as  terminat-  75  Hill  v.  Allen,   185  Mass.  25,  69 

ing  the  tenancy,  even  at  law,  on  the  N.  E.   333. 

theory   that  the  relation   of  vendor  7c  Journe  v.   Hewes,  124  Cal.  244, 

and  vendee  is  inconsistent  with  that  56  Pac.  1032. 

of  landlord   and   tenant.     See   ante,  77  Washburn  v.  White,   197  Mass. 

§  43.  540,  84  N.  E.  106.     In  this  case,  lack 

73  Walker  v.  Edmondson,  111  Ga.  of  good  faith  on  the  part  of  the  les- 
454,  3fi  S.  E.  800;  Wade  v.  South  sees  in  their  attempts  to  procure  the 
Penn  Oil  Co.,  45  W.  Va.  380,  32  S.  E.  completion  of  the  arbitration  was 
169;  Gilbert  v.  Port,  28  Ohio  St.  276;  the  question  iijivolved. 


„  2(35  EFFECT  OF  EXERCISE.  1687 

agreed  to  convey  free  of  incumbrance,  and  such  taxes  consti- 
tuted an  incumbrance^^ 

It  has  in  England  been  decided  that  the  effect  of  the  exercise 
of  the  lessee's  option,  after  the  death  of  the  lessor,  is  to  make 
the  conversion  of  the  land  into  purchase  money  relate  back  to 
the  time  of  the  giving  of  the  option,  so  that  the  purchase  money 
.vill  belon-  to  the  lessor's  personal  representatives  and  not  to 
his  heir  or  devisee,^^  unless  a  contrary  intention  appears,  as  when 
the  testator,  after  the  giving  of  the  option,  devised  the  particular 
property  without  referring  to  the  contract.^o     The  practical  in- 
convenience of  the  above  doctrine,  in  that  property  may  thus  be 
shifted  from  the  lessor's  heir  or  devisee  to  his  personal  repre- 
sentative by  the  exercise  of  the  option  at  a  date  long  subsequent 
to  his  death,  is  sufficiently  obvious,  and  the  correctness  thereot, 
particularly  when  the  option  is  exercisable  at  a  remote  date  m 
the  future  has  been  forcibly  questioned  in  a  case  in  this  country. 

The  exercise  of  the  option  does  not,  it  has  been  held,  relate 
back  to  the  time  of  the  creation  of  the  option,  so  as  to  entitle 
the  lessee  to  the  proceeds  of  insurance  on  buildings  destroyed 
between  the  time  of  the  creation  of  the  option  and  its  exercise, 
and  it  was  so  decided  when  the  premiums  were  paid  by  the  lessee 
for  insurance  taken  out  for  the  lessor's  benefit,^^  as  well  as  when 
the  lessor  took  out  the  insurance  himself  and  paid  the  premiums.s^ 
A  different  view  was,  however,  taken  in  one  case,  in  regard  to 
insurance  paid  for  by  the  lessee,  on  a  construction  of  the  par- 
ticular contract.8^     When  there  was  a  stipulation  that  the  m- 

T«Swan.tonv.  Clark.  153  Cal.  300.  St.    346,    34    N.    E.    159      In    In    re 

Pac   1117  Gravos,  15  Ir.  Ch.  357.  likewise,  the 

ToLawes   v.   Bennett,   1   Cqx.   167,  propriety   of   the    doctrine    is    ques- 

171-  Townlev  v.  Bpdwell,  14  Ves.  Jr.  tioned. 

591';  Collingwood  V.  ROW.  26  Law  J.  -  Gilbert  v.  Port  28  Ohio  St.  2  6. 

Ch    649-    In  re  Isaacs   [1894]   3  Ch.  sa  Edwards    v.    West,    7    Ch.    Div. 

„         '  858.     In  this  case,  decided  by  Fry,  J.. 

■soDrant  v.  Vause.  1  Younge  &  C.  it  is  said  by  him  that  the  doctrine 
Ch  580-  En^uES  y.  Smith,  2  De  Gex  of  Lawes  v.  Bennett,  1  Cox,  167 
&  S  722:  Y/eeding  v.  Weeding,  1  (ante,  note  79).  is  not  to  be  ex- 
Johns.  &  H.  424.     So  when  a  codicil  ten^led. 

was  made,  on  the  day  of  the  lease.  s.  Williams  v.  LiHey   67  Conn    50. 

confirming  a  prior  specific  devise  of  34  Atl.  765,  37  L.  R.  A^  150      There 

the  property.     In  re  Pyle   [1895]   1  it  was  decided  that  when  the  lease 

f^^   ^04         '  provided  that,  upon  the  lessee's  ex- 

81  Smith  V    Loewensteln,  50   Ohio  ercise  of  the  option  to  purchase,  the 


16g8  OPTION  OF  PURCHASE.  §  266 

surance,  which  the  lessee  agreed  to  take  out,  should  be  applied  in 
rebuilding  the  premises,  it  was  held  that  if  the  lessor,  by  taking 
out  additional  insurance  without  the  lessee's  knowledge,  di- 
minished the  amount  recoverable  under  the  policy  taken  out  by 
the  lessee,  by  reason  of  the  "average"  clause  therein,  the  lessor 
was  bound  to  apply  to  rebuilding  the  amount  received  from  the 
insurance  taken  out  by  him.^^ 

§  266.     Sufficiency  of  conveyance. 

A  covenant  to  convey  to  the  lessee  by  "warranty  deed,"  upon 
the  payment  of  a  certain  sum,  was  held  to  require  the  conveyance 
of  a  perfect  title,  and  hence  the  lessee  could  demand  that  the 
lessor's  husband  join  in  the  conveyance.^®  A  covenant  that  the 
lessee  should  have  the  option  to  purchase  the  premises  in  a  cer- 
tain contingency,  without  naming  the  estate  to  be  conveyed,  was 
construed  as  requiring  the  conveyance  of  a  fee  simple.^''' 

If  a  covenant,  inserted  in  the  instrument  of  lease,  is  intended 
to  continue  binding  in  the  event  of  the  purchase  of  the  reversion 
under  the  option,  the  lessee  is  entitled  to  have  such  covenant  in- 
serted in  the  conveyance  to  him.^s  Whether  it  is  so  intended  is 
a  question  of  the  construction  of  the  language  used.^* 

sums    theretofore   received   as   rent  sb  Reynard  v.  Arnold,  10  Ch.  App. 

should  be  applied  as  part  of  the  pur-  386. 

chase   price,   and   he   covenanted   to  so  Gradle  v.  Warner,   140   111.  123, 

pay  all  taxes  and  insurance  in  the  29  N.  E.  1118. 

meanwhile,  to  operate  the  elevator,  st  McCormick  v.  Stephany,  61  N. 
to  heat  the  building,  and  generally  J.  Eq.  208,  48  Atl.  25. 
to  make  it  desirable  for  tenants,  and  In  Brink  v.  Mitchell,  135  Wis.  416, 
the  lessor  agreed  to  refund  to  the  116  N.  W.  16,  it  was  held  that  an 
lessee  any  excess  of  the  rent  paid  by  agreement,  upon  the  lessee's  exercise 
him  over  the  net  rents  received  by  of  his  option,  to  convey  by  "a  good 
him,  these  stipulations  showed  the  and  sufficient  quitclaim  deed,"  ac- 
intent  of  the  parties  to  be  to  treat  companied  by  recitals  that  the  les- 
the  lessee's  election  to  purchase  the  sor  acquired  the  title  by  purchase  at 
property,  when  made,  as  relating  foreclosure  sale,  called  for  "a  con- 
back  to  the  date  of  the  lease,  and  veyance  of  the  entire  estate  of  the 
that  consequently  the  money  receiv-  lands." 

ed  by  the  lessor  from  the  insurance  ss  American     Strawboard     Co.     v. 

token    out    by    agreement    between  Haldeman  Paper  Co.,  27  C.  C.  A.  634, 

them,  upon   the   destruction   of   the  83  Fed.   619. 

building  by  fire,  should  be  regarded  so  See  Buffum  v.  Breed,  116  Mass. 

as    belonging   to   the   lessee   on    his  582:  Wright  v.  Kayner,  150  Mich.  7, 

exercise  of  the  option.  14  Det.  Leg.  N.  631,  113  N.  W.  779. 


.  067  CHANGE  OF  PARTIES  TO  TENANCY.  1689 

Compliance  with  a  covenant  to  convey  free  from  incumbrances 
is  obviously  not  affected  by  the  existence  of  the  leasehold  es- 
tate, since  this  is  merged  upon  the  making  of  the  conveyance 
to  the  owner  thereof.^^ 

§  267.    Change  of  parties  to  the  tenancy. 

The  benefit  of  an  agreement  by  the  lessor  to  sell  to  the  lessee  at 
the  latter's  option  has  been  regarded  as  passing  to  an  assignee 
of  the  lessee's  interest  under  the  lease,"  and,  on  the  tenants 
death,  to  the  lessee's  personal  representatives.^^  There  is  one 
decision,  however,  to  the  effect  that  a  right  given  to  the  lessee 
to  purchase  partially  on  credit  does  not  pass  to  an  assignee  ot 
the  lease,  since  otherwise  there  might  be  imposed  on  the  landlord 
an  obligor  for  part  of  the  purchase  money  not  acceptable  to 
him  «3  And  there  is  a  decision  to  the  effect  that  the  benefit  of  the 
provision  does  not  pass  under  the  foreclosure  of  a  mortgage 
on  the  leasehold.9^  ^ 

One  to  whom  the  lessor  transfers  the  reversion  has  usuall} 
been  regarded  as  bound  by  the  lessor's  covenant  to  sell  to  the 
lessee,^^  and,  upon  the  lessor's  death,  his  heirs  or  devisees  have 

ooswanston  v.  Clark.  153  Cal.  300.    Kensington  Vestry.  27  Ch   Dlv.  3»4^ 

ex  Laffan  V  Naglee.  9  Cal.  662.  70  Wall.)  471.  it  -^as  asserted  that  "the 

Axl  Dec  671;  Han  V.  center.  40  cal.  covenant   to    convey   passed   ^^^  ^^^ 

fi^Naoier  v   Darlington,  70  Pa.  64;  scent  to  the  heir  at  law  as  If  it  had 

Srr  V    Day'  14  Pa    112;  Hollander  heen  contained  in  a  separate  instru- 

V  Cenlral  M;tal  .  Supply  Co.  (Md.)  ment."     There  t^^  co-nant  was  m 
71  Atl   412-  Page  v.  Hughes,  41  Ky.  term,  to  convey  to  the  said  Oe^^ee) 
(2B    Mon     439;  Robinson  v.  Perry,  her   heirs    and   assigns,   hot   this   is 

Ca.  183.  68  Am.  Dec.  455;  Hagar    not  referred  ^o  in  the  opinion. 

V  Buck    44  Vt.  285,  8  Am.  Rep.  368.        '^3  Monger  v.  Ward,  87  Tex.  62., 
rii  Rlak'einan  v   Miller,  136  Cal.  138,    S.  \V.  853. 

68   Pac    ST  I9   Am.   St.   Rep.   120.        0.  Conn    v.  Tonner.  86  Iowa    577 

■       t  was   dec  ded  that  the   benefit  of  53  N.  W.  320.     The  decision  is  based 

he  covenant  passed  because  the  as-  on    a    prior    decision    that    such    a 

the  covenani  p  covenant  does  not  constitute  an  In- 

Sr  or     are.'-   Ind  lot  Of   the  terest  in  land  so  as  to  be.  subject  to 

,  exec'ition.     mere  is  uo  .cx^-cu^., 

'Tjstln    V    union    School    Dist..  the  question  whether  the  benefit  of 

q4  Mich    502  '54  N.  W.  156.  34  Am.  the   stipulation   should  not  pass   as 

l\   R.pN'l     Hagar  v.  Buck.  44  Vt.  a  covenant  running  with   the  land. 

2  5   8  Ar!   Rep.  368;  In  re  Adams  &        -Van    Home   v.    Crain,    1    Paige 


1690  OPTION  OF  PURCHASE.  §  26S 

been  held  to  be  bound  thereby .»•'  In  one  case,  however,  in  ap- 
parent opposition  to  the  view  that  the  lessor's  transferee  is  bound 
by  the  covenant,  it  was  decided  that  there  is  a  breach  of  the 
covenant,  entitling  the  lessee  to  substantial  damages,  if  the  lessor 
transfers  the  reversion,  even  though  the  transfer  is  in  terms  sub- 
ject to  the  rights  of  the  lessee.^^  And  in  a  recent  case  in  England 
it  was  explicitly  decided  that  an  option  to  purchase,  given  to 
the  lessee,  is  not  concerned  with  the  relation  of  landlord  and  ten- 
ant, and  that  the  burden  thereof  will  consequently  not  pass  upon 
a  transfer  of  the  reversion.^^ 

As  against  one  to  whom  the  lessor,  after  making  the  lease, 
agreed  to  convey  the  land,  the  lessor  cannot,  it  has  been  held, 
sell  the  property  to  the  lessee  at  a  price  less  than  that  named 
in  the  option  of  purchase.^^ 

§  268.    Remedy  for  breach  of  stipulation. 

The  tenant  can,  no  doubt,  brincr  an  action  for  damages  on  ac- 
count of  the  breach  of  a  covenant  to  convey  to  the  landlord  at 
his  option,i<'<^  but  the  remedy  almost  invariably  adopted  is  that 
of  a  proceeding  to  compel  specific  performance.^ °^ 

(N.Y.)  455;  Thomas  V.Gottlieb,  etc.,  Pac.  134,  67  L.  R.  A.  571.  110  Am. 

Brew.     Co.,    102    Md.     417,     02    Atl.  St.  Rep.  9C3,  where  it  is  said   that 

633;  Maughlin  v.  Perry,  35  Md.  352;  tender  of  the    price  must   be   made 

Lazarus  v.  Heilman,  11  Abb.  N.  C.  to  the  lessor  and  not  to  the  trans- 

(N.  Y.)    93;    Harding  v.  Gibbs,  125  feree. 

111.  85,  17  N.  E.  60,  8  Am.  St.  Rep.  98  Woodall  v.  Clifton  [1905]  2  Ch. 

345.     The  lessee  may,   however,    by  257.     See  the  criticism  of  this  case, 

his  own  conduct  be  estopped  to  as-  as    bein?    in    confiict    with     In    re 

sert    a    right    to    a    conveyance    as  Adams  &  Kensington  Vestry,  27  Ch. 

against  the  transferee,  as  when  he  Div.    394,   in  51   Solicitors'   Journal, 

allowed   the   latter   to   buy   out   his  at  p.  319. 

stock   in   trade    on   the   supposition  99  Millard  v.  Martin.  28  R.  I.  494. 

that    if    this    was    done    the    lessee  68  All.  420,  17  L.  R.  A.   (N.  S.)   582, 

would    not    call    for    a    conveyance.  125     Am.     St.     Rep.     755.     Compare 

Race  V.  Groves,  43  N.  J.  Eq.  284,  7  Slaughter  v.   Mallet  Land  &  Cattle 

Atl.  667.  Co.,    72   C.   C.  A.   430,   141   Fed.   282, 

96  Van  Home  V.  Grain,  1  Paige  (N.  and   Eietz  v.   Mission  Transfer  Co., 

Y.)     455;    Buckwaller    v.    Klein,    5  95  Cal.   92,  30  Pac.   380. 

Ohio   Dec.   55.  100  See  Thuemler  v.  Ward,  18   Pa. 

07  Thuemler     v.     Brown,     18     Pa.  Super.  Ct.  117. 

Super.    Ct.    117.     And    see   Frank   v.  i^i  Hall    v.     Center.    40     Cal.     63; 

Stratford-Handcock,  13  Wyo.   37,  7?  King  v.  Raab,  123  Iowa,  632,  99  N. 


§  269  STATUTORY  PROVISIONS.  1691 

§  269.    Statutory  provisions. 

In  Maryland  there  are  statutory  provisions  authorizing  one 
holding  under  a  lease  for  a  longer  period  than  fifteen  years  to 
"redeem  the  rent"  within  a  period  named  in  the  statutes,  vary- 
ing from  five  to  fifteen  years,  according  to  the  date  of  the  making 
of  the  lease,  upon  paying  a  sum  no  greater  than  the  capitalization 
of  the  rent  at  a  rate  of  interest  named. ^^^  This  right  of  "re- 
demption" is  in  efl'ect  merely  a  right  to  purchase  the  reversion, 
regardless  of  the  reversioner's  assent,  and  the  tenant,  after  giving 
notice,  as  provided  by  the  statute,  to  all  persons  interested  in 
the  reversion,  may,  it  has  been  decided,  file  a  bill  in  the  nature 

of  one  for  specific  performance  to  obtain  a  conveyance  of  the 
reversion. ^"^3 

This  legislation  having  been  adopted  as  a  matter  of  public  pol- 
icy, rather  than  for  the  benefit  of  particular  individuals,  any 
agreement  or  waiver  intended  to  exclude  its  operation  in  a  par- 
ticular case  has  been  decided  to  be  nugatory,^^^  nor  can  this  be 
effected  by  the  making  of  a  lease  for  less  than  fifteen  years  with 
a  provision  for  renewal  for  another  period,  when  the  sum  of  the 
two  periods  is  over  fifteen  years.^*^' 

These  statutes  apply  to  improved  as  well  as  unimproved  prop- 
c^rty.^"*'  They  do  not,  it  has  been  held,  apply  to  a  lease  made, 
since  their  enactment,  merely  in  pursuance  of  a  covenant  in  a 
lease  made  prior  to  their  enactment,  whereby  the  lessor  agreed 
to  make  new  leases  for  the  purpose  of  apportioning  the  rent.^°'^ 

W.  306;   Hawralty  v.  Warren,  18  N.  los  Stewart  v.  Gorter,  70  Md.  242, 

J.  Eq.   (3  C.  E.  Green)  124;   Maugh-  16  Atl.  644,  2  L.  R.  A.  711. 

lin  V.  Perry,   35  Md.  352;   Hayes  v.  !•>«  Swan  v.  Kemp,  97  Md.  686,  55 

O'Brien,  149  111.  403,  37  N.  E.  73,  23  Atl.  441. 

L.  R.  A.  555;   Willard  v.  Tayloe,  75  "' Flook  v.  Hunting,  76  Md.   178, 

U.  S.   (8  Wall.)    557.     See  Robinson  24  Atl.  670.     On  somewhat  the  same 


theory,  it  was  held  that  the  legisla- 
tion did  not  apply  to  a  lease  made 
in  confirmation  of  a  previous  lease 
which  was  invalid  because,  at  the 
time  of  its  execution,  the  proposed 

52  Atl.  606.  93  Am.  St.  Rep.  339.  i,,^^^    ^^^    „„t    y^t   become    a    cor- 

104  Stewart  v.  Gorter,  70  Md.  242,    poration.     .Tones     v.     Linden     Bldg. 

16  Atl.  644.  2  L.  R.  A.  711.  Ass'n,  79  Md.  73,  29  Atl.  76. 


V.  Perry,  21  Ga.  183,  68  Am.  Dec.  455. 

102  Code  Pub.  Gen.  Laws  1904,  art. 
21,  §§  88,  89;   art.  53,  §  1. 

103  Piaenker  v.  Smith.  95  Md.  389, 


CHAPTER  XXVII. 

PAYMENT  BY  LANDLORD  FOR  TENANT'S  IMPROVEMENTS. 
§  270.     In  absence  of  stipulation. 
271.     Stipulation  as  to  payment. 

a.  As  alternative  to  renewal. 

b.  As  dependent  on  sale  of  reversion. 

c.  Election  by  lessor. 

d.  Improvements  within  stipulation. 

e.  Effect  of  renewal  or  extension. 

f.  Effect  of  tenant's  breach  of  covenant. 

g.  Effect  of  forfeiture  of  leasehold, 
h.     Change  of  parties  to  tenancy. 

1.  Title  to  improvements. 

J.  Valuation  of  improvements. 

k.  Possession  of  premises  pending  payment. 

1.  Enforcement  of  payment — Lien. 

§  270.    In  absence  of  stipulation. 

The  tenant  cannot  ordinarily,  by  erecting  buildings  or  placing 
other  improvements  upon  the  land,  impose  upon  the  landlord 
any  obligation  to  compensate  him  for  such  improvements,  even 
though  they  are  of  such  character  and  so  annexed  that  the  ten- 
ant has  no  right  to  remove  them  upon  the  termination  of  the  ten- 
ancy.^    And  the  same  principle  applies  in  case  the  tenant  ex- 

1  Pilling  V.  Arnitage,  12  Ves.  Jr.  Bldg.  Co.,   63   111.   308;   Diederlch  T. 

84;    Kutter    v.    Smith.    69    U.    S.    (2  Rose,    238    111.    610,    81    N.   E.    1140; 

Wall.)    491;    Gay  v.  Joplin,  13  Fed.  Y.'ilkinson  v.  Nichols,  17  Ky.   (1  T. 

650;   Jones  v.  Hoard,  59  Ark.  42,  26  B.  Mon.)  36;  Guthrie  v.  Guthrie,  25 

S.    W.    193,    43    Am.    St.    Rep.    17;  Ky.  Law  Rep.   1701,  78   S.  W.  474; 

Hughes  V.  Ford,  15  Colo.  330,  25  Pac.  Leslie  v.   Smith,   32  Mich.   65;    Cos- 

555;      Town      of      Milledgeville     v.  griff  v.  Foss,  65  Hun,  184,  19  N.  Y. 

Thomas,    69   Ga.    535;    Mull   v.   Gra-  Siipp.   941;    Pomeroy  v.  Lambeth,  36 

ham,  7  Ind.  Arip.  561,  35  N.  E.  134;  N.  C.   (1  Ired.  Eq.)   65,  36  Am.  Dec. 

Toledo,   W.   &   W.   R.    Co.   v.   Depot  33;    Critcher  v.   Watson,   146   N.   C. 


270 


IN  ABSENCE  OF  STIPULATION.  1693 


pends  money  or  labor  in  other  ways  upon  the  land.^  The  tenant 
has  no  greater  ri-ht  to  assert  snch  a  claim  in  an  action  for  rent 
brouo-ht  by  the  landlord  than  by  independent  suit,^  and  or- 
dinarily he  cannot  do  so  in  equity  to  any  greater  extent  than 

at  law.*  .  ^,  1  •       r.f 

The  fact  that  the  landlord  does  not  object  to  the  making  ot 
improvements  by  the  tenant,  although  knowing  thereof  at  the 
time    is  immaterial,^  as  is  the  fact  t^at  the  landlord  urges  the 
makin-   of  the  improvements.^     If,  however,   the  landlord   en- 
-•ourag^es  the  tenant  to  make  improvements,  by  inducing  him  to 
believe  that  he  will  be  granted  a  renewal  or  more  extended  lease 
equity  will,  it  seems,  protect  the  tenant  in  his  possession  unti 
compensated  for  the  improvements.^     And  it  has  been  decided 
that  if  a  tenant  improves  by  permission  of  his  landlord,  under  a 
promise  to  convey  or  devise  to  him,  he  may  recover  the  cost  of 
the  improvements,  on  the  nonfulfillment  of  the  promise,  even  if 
he  failed  to  secure  himself  by  a  written  contract  m  accordance 
with  the  Statute  of  Frauds.^     There  are  even  decisions  that  if 
the  owner  of   land  agrees  orally  that   another  shall  have  the 
premises  for  life,  the  owner  cannot  recover  possession  during  the 
life   on  the  crround  that  there  is  no  written  lease,  unless  he  pays 
for 'the  improvements  made  by  the  tenant.^     And  where  a  lease 

150   59  S   E   544.  18  L.  R.  A.  (N.  S.)  «  Hopkins  v.  Ratliff,  115  Ind.  213. 

970'  125  Am    St.  Rep.  470;   Kline  v.  17  N.  E.  288. 

rl/obf  etpa   57-  sLe  v.  McMinn-  t  Un.ty  Joint  Stock  Mut.  Banking 

vn      I'm    R   Co:  74 Venn.  (6  Lea)  Ass'n  v.  Kin..  25  Beav.  72;  Millard 

369    Windom  v.  Stewart.  43  W.  Va.  v.  Harvey.  10  Jur.  (N.  S.)  1107;  Hol- 

'  218    E.  776;  Hart  v.  Hart.  117  lis  v.   Edwards.  1   Vern.   159     sem^ 

Wis  639   94  N  W.  890.  ble).     But   the   lessor   is   not   liable 

.Wilkerson    v.   Farnham.    82   Mo.  for  the  improvements  even  m  such 

672-    Quay  v.  Kehoe,  70  N.  H.  151.  case,  it  has  been  decided,  if  he  al- 

46   Atl    688-   Bullitt  v.  Musgrave.  3  lows  the  lessee  to  remain  in  posses- 

sWiLrson'v.    Farnham,   82   Mo.  the  agreed  lease.     Yat^s  v.  Bachley. 

672;  Randolph  v.  Mitchell  (Tex.  Civ.  33  Wis.  185.                            „    t..     i 

1   51  S   W   297  ^  Freeman    v.    Headley.    33    N.    J. 

4Pillin?  V.  Armitage.  12  Ves.  Jr.  Law,  523.  97  Am.  Dec.  737;  Smith  v. 

84-    Pomeroy  v.  Lambeth.   36  N.   C.  Smith,  28  N.  J.  Law  (4  Dutch.)  208. 

(I'ired    Eq)   65.  36  Am.  Dec.  33.  78  Am.  Dec.  49;  Cornell  v.  Vanarts- 

5  Gocio  V.  Day,  51  Ark.  46.  9  S.  W.  dalen.  4  Pa.  3G4. 

433;    Woolley  V.   Osborne.   39   N.   J.  0  Reed  v.  Lander.  68  Ky.  (5  Bush 

Ea    (12  Stew.)   54;   Dunn  v.  Bagby,  21;  O'Neal  v.  Orr.  68  Ky.   (5  Bush) 

CQ  M    r    qi  619.    The  case  of  Allen  v.  Mansfield, 


1694  PAYMENT  FOR  TENANT'S  IMPROVEMENTS.  §  271 

was  made  for  one  hundred  years,  with  a  covenant  that  the  lessee 
might  retain  possession  so  long  as  he  might  think  proper  there- 
after, it  was  held  that  the  lessee's  successor  in  interest  could  be 
ousted  after  the  one  hundred  years  only  upon  payment  by  the 
landlord  for  his  improvements.^® 

When  a  lease  which  is  valid  at  law  is  set  aside  in  equity,  allow- 
ance will  be  made,  it  has  been  decided,  for  improvements  made 
by  the  tenant.^  ^ 

The  tenant  does  not  acquire  a  right  to  compensation  for  im- 
provements, it  has  been  held,  because,  in  making  them,  he  acted 
under  the  mistaken  impression  that  his  lease  would  endure  for 
a  longer  time  than  was  actually  the  casc,»2  nor  because  he  had, 
at  the  time,  an  option  to  purchase  the  premises,  which  option 
he  failed  to  exercise  because  of  subsequently  discovered  defects 
in  the  lessor's  title.^' 

§  271.     Stipulation  as  to  paymsnt. 

a.  As  alternative  to  renewal.  Occasionally  a  provision  of  the 
lease  is  so  expressed  as  to  give  the  lessor  the  option  to  take  the 
improvements  at  the  termination  of  the  tenancy,  upon  payment 
therefor,  without  binding  him  so  to  do.^-*  And  so  the  lessor  is 
quite  frequently  given  the  option  either  to  pay  for  the  improve- 
ments or  to  give  a  renewal  lease,  the  right  of  election  being  vested 
in  the  lessor  and  not  in  the  lessee.^^     In  such  a  case,  when  the 

82    Mo.    688,    is    apparently    to   the  i*  See  Toledo,  W.  &  W.  R.  Co.  t. 

same  effect,  there  the  owner  of  the  Jacksonville  Depot  Bldg.  Co.,  63  111. 

land   having    given    what    is    called  308;   Kelly  v.  Chicago,  M.  &  St.   P. 

a   "license"   to   use    the  land    for   a  R.  Co.,  93  Iowa,  436,  61  N.  W.  957. 

"permanent    home,"    and    it    being  is  See   Kutter  v.   Smith,   69   U.   S. 

held  that  the  licensee  could  not  be  (2  Wall.)  491;  Bullock  v.  Grinstead, 

ousted   without  being  paid   for  her  95  Ky.  261,  24  S.  W.  867;    Smith  v. 

improvements.  St.   Philip's  Church,   107  N.  Y.   610, 

10  Lewis  V.  Effinger,  30  Pa.  281.  14  N.  E.  825;  In  re  Coatsworth,  160 

11  Attorney  General  v.  Baliol  Col-  N.  Y.  114,  54  N.  E.  665;  Howe's  Cave 
lege,  9  Mod.  411;  Richmond  v.  Dav-  Ass'n  v.  Houck,  66  Hun,  205,  21  N. 
is,  103  Ind.  449.  3  N.  E.  130.  Y.   Supp.    40;    Conger   v.    Ensler,    85 

'i2Wildridge  v.  McKane,  8  Ir.  Eq.  App.  Div.  564,  83  N.  Y.  Supp.   419; 

231-   Haven  v.  Adams,  90  Mass.    (8  Crosby  v.  Moses,  48  N.  Y.  Super.  Ct. 

Allen)  363;  Dunn  v.  Bagby,  88  N.  C.  (16  Jones  &  S.)   146;  Hutchinson  v. 

Ql  '  Boulton,  3  Grant's  Ch.  391;  Ward  v. 

IS  Walton  V.  Meeks,  120  N.  Y.  79,  Hall,  34  New  Br.  600;   Ward  v.  City 

23  N.  E.  1115.  8  L.  R.  A.  79.  of  Toronto,   26   Ont.   App.   225.     See 


§  271  AS  ALTERNATIVE  TO  RENEWAL.  1695 

lease  provided  that  the  lessor  should  pay  for  improvements  "pro- 
vided the  said  premises  shall  not  be  re-let  to  the  lessee,"  it  was 
held  that  the  terra  "re-let"  referred  to  a  new  letting  for  a  fixed 
and  definite  period,  and  that  the  mere  fact  that  the  tenant  held 
over,  paying  rent  monthly,  did  not  relieve  the  lessor  from  liabili- 
ty to  pay  for  the  improvements.^^  Elsewhere  it  has  been  held 
that  there  was  in  effect  a  renewal,  sufficient  to  relieve  the  lessor 
from  all  obligation  to  pay  for  the  buildings,  when  the  lessee  con- 
tinued in  possession  for  the  period  of  the  renewal  term,  he  having 
thereby  waived  a  requirement  of  notice  from  the  lessor  of  his 
election  to  renew.^'^  And  a  provision  that,  in  case  the  "lease  can- 
not be  continued"  after  its  term  "by  mutual  agreement  of  the 
parties  thereto,"  the  improvements  shall  be  purchased  by  the 
lessor,  was  regarded  as  inapplic.ible  when  tlie  lessee  continued 
in  possession  after  the  term,  rent  being  paid  and  accepted  as 
before.^8 

The  fact  that  the  lessor  elects  to  renew  rather  than  to  pay  for 
the  improvements  does  not  compel  the  lessee  to  accept  the  re- 
newal,^^  and  in  case  of  such  refusal  by  him  to  accept  the  renewal 
the  tenancy  will  come  to  an  end,  the  lessee  losing  the  value  of 
his  improvemeuts,2o  unless  this  result  is  excluded  by  the  language 
of  the  lease.2i 

If  the  period  of  the  renewal  is  not  named,  the  lessor  must,  it 
has  been  held,  renew  for  a  substantial  term,  as  an  alternative  to 
buying  the  improvements.22     One  renewal  has  been  regarded  as 

Neiderstein  v.  Cusick,  178  N.  Y.  543,  Co.,  180  Mass.  131,  61  N.  E.  816,  it 

71  N.   E.  100.     As  to  the   necessity  was  decided  that  where  the  lessees 

of  an  express  election  by  the  lessor,  were  by  the  lease  given  the  right  of 

see  post,  §  271  c.  renewal   for  such  rent  as  might  be 

isMoseley  v.  Allen,  138  Mass.  81;  agreed  on,  "or,  in  case  of  a  failure 
Franklin  Land,  Mill  &  Water  Co.  v.  so  to  agree,  the  lessor  shall  pur- 
Card,  84  Me.  528,  24  Atl.  960.  chase  the  improvements,"  the  words 

IT  Powell   V.   Pierce,   103   Va.    526,  "failure    to    agree"    were    held    to 

49   S.   E.   666.  embrace  the  case  of  a  failure  to  re- 

18  Parker  v.   Page,  41  Or.  579,  69  new  because  the  lessees  would  not 

P^c.   822.  pay  any  rental,  and  they  were   re- 

loZorkowski   v.   Astor,   156  N.   Y.  garded  as  entitled  to  compensation 

393,  50  N.  E.  983.  for    improvements    though    they    re- 

20  See  Rutgers  v.  Hunter,  6  Johns,  fused  to  take  a  renewal. 

Ch.  (N.  Y.)  215;  Pearce  v.  Golden,  8        22  phiuipg   y.   Reynolds,  20  Wash. 
Barb.    (N.  Y.)    522.  374,  55  Pac.  316,  72  Am.  St.  Rep.  107. 

21  In   Carpenter   v.   Focasset   Mtg. 


1C96  PAYMENT  FOR  TENANT'S  IMPROVEMENTS.  §  271 

sufficient,  so  that  the  landlord  need  not  pay  for  improvements 
upon  his  refusal  to  give  a  second  renewal.^^ 

b.  As  dependent  on  sale  of  reversion.  Occasionally  there  is 
a  provision  that  the  lessor  shall  pay  the  lessee  for  improvements 
in  case  the  lessor  sells  the  property .^^  A  condemnation  of  the 
property  for  public  use  has  been  decided  not  to  be  a  sale  within 
such  a  provision.-^  It  has,  moreover,  in  one  case,  been  decided 
not  to  apply  when  the  lessee's  rights  vi^ere  expressly  protected 
by  the  terras  of  the  sale,26  but  there  is  in  another  jurisdiction  a 
contrary  dccision.^^ 

c.  Election  by  lessor.  It  has  been  held  that  when  the  lessor 
had  the  option  at  the  end  of  the  terra  either  to  pay  for  the  ira- 
provements  or  to  renew  the  lease,  the  lessor's  failure  to  make 
his  election,  on  the  day  of  the  expiration  of  the  terra,  to  renew 
the  lease,  made  him  liable  for  the  value  of  the  improvements.28 
In  another  jurisdiction  a  different  construction  was  placed  on  a 
provision  that,  if  the  lessee  should  give  notice  of  a  d(^sire  for  a 
renewal,  the  lessor  would  renew  or  pay  for  the  improvements,  it 
being  held  that  the  fact  that  the  lessor  failed  to  make  an  election 
upon  receipt  of  notice  from  the  lessee  did  not  compel  him  to  pay 
for  the  improvements  rather  than  to  renew.2"  In  one  jurisdic- 
tion it  has  been  decided  that,  when  the  lessor  failed  to  make  the 
election,  the  lessee  might  do  so.^" 

Where  a  lease  provided  that,  unless  the  lessor  gave  notice, 
six  months  before  the  expiration  of  the  term  of  fifteen  years,  of 
his  election  to  take  possession  of  the  premises  and  to  pay  for 
the  buildings  to  be  erected  by  the  lessee  at  their  appraised  value, 
the  lease  should  be  regarded  as  renewed  and  continued  for  a 
period  of  five  years  longer,  it  was  held  that  a  notice  of  the  land- 
lord's election  to  take  possession  "pursuant  to  the  provisions  of 

23  Pierce  v.  Grice,  92  Va.  763,  24       26  Chandler    v.    Oldham,    55    Mo. 

S   E   392.  "^PP"    •'^^^• 

'  '      '  „„..         f^,    iTTi         27  Pintard  v.  Irwin,  20  N.  J.  Law 

2.  AS    to    compensation    fo      Im-  ^^^ 

provements   on   termination  of   ten-  ^^^^^^^^^^    ^     Grinstead.    95    Ky. 

ancy    by    sale    or    otherwise,    under  ^g^^  34  S.  W.  867. 

option  in  lease,  see  ante,  §  12  e    (5),  ,3  y^.^rd    v.    City    of    Toronto,    29 

at  notes  240-244.  q^^    ^29,  26  Ont.  App.  225. 

25  McAllister  v.  Reel,  53  Mo.  App.  so  Coles  v.   Peck,    96   Ind.   333,   49 

81.  Am.  Rep.   161. 


§  271  IMPROVEMENTS  WITHIN  STIPULATION.  1G97 

the  said  lease"  was  sufficient  to  terminate  the  lease,  though  it 
did  not  state  that  the  lessor  would  pay  for  the  improvements.^^ 

It  has  been  decided  that,  when  the  lessor  agreed  to  pay  the 
value  of  the  improvements  in  one,  two  or  three  years  from  the 
expiration  of  the  lease,  or,  at  his  election,  to  pay  the  same  out  of 
the  rents,  and  the  lessor  assigned  the  reversion,  since  by  such 
assignment  he  lost  the  power  to  pay  out  of  the  rents,  the  lessor's 
right  of  election  was  lost  and  he  was  bound  to  pay  in  one,  two 
and  three  years.32  And  it  was  held,  without  reference  to  any 
other  provisions  of  the  lease,  that  by  a  sale  of  the  premises  with- 
out expressly  reserving  the  rights  of  the  tenant,  the  lessor  in  ef- 
fect converted  the  improvements  to  his  own  use,  and  consequently 
thereby  elected  to  pay  therefor  under  a  clause  giving  the  lessor 
the  option  either  so  to  do  or  to  permit  their  removal  by  the  ten- 
ant.3*  Ordinarily,  it  seems,  the  right  of  election  would  in  such 
case  be  regarded  as  passing  to  the  transferee.^* 

d.  Improveiiients  within  stipulation.  The  question  as  to  what 
particular  improvements  come  within  the  terms  of  a  particular 
covenant  to  pay  for  improvements  is  obviously  one  of  the  con- 
struction of  the  language  used.^^  A  covenant  to  pay  for  im- 
provements erected  by  the  lessee  has  been  regarded  as  covering 
improvements  erected  by  an  assignee  of  the  lessee,^^  and  even 

31  In  re  Coatsworth,  160  N.  Y.  114,  the  contemplation  of  a  previous 
54  N.  E.  665.  clause  authorizing  the  erection  of  a 

32  Bream  v.  Dickerson,  21  Tenn.  certain  class  of  mill  and  machinery. 
(2  Humph.)    126.  Berry  y.  Van  Winkle,  2  N.  J.  Eq.  (1 

3:-.  Smyth  V.  Stoddard.  203  111.  424,  H.  W.  Green)   390. 

67  N.  B.  980,  96  Am.  St.  Rep.  314.  A  contract  to  pay  for  "stalling  and 

34  See  post,  at  notes  74-76.  covering"  erected  on  a  bam  founda- 

35  A  covenant  to  pay  the  value  of  tion  does  not  cover  a  pump  used 
"the  buildings,"  following  an  agree-  for  watering  the  stock.  Smyth  v. 
ment  by  the  lessee  to  erect  a  build-  Stoddard.  203  111.  424,  67  N.  E.  980, 
ing    then    being    transported    from  96  Am.  St.  Rep.  314. 

another  place,  or,  if  this  were  lost.  Crib-work  and  earth-filling,  made 
a  similar  one,  was  held  not  to  cover  by  the  lessee  of  a  water  lot,  have 
a  building  of  an  entirely  different  been  held  not  to  be  within  a  cove- 
class,  erected  in  place  of  the  one  nant  to  pay  for  "buildings  and  erec- 
first  set  up  on  the  destruction  of  the  tions."  Adamson  v.  Rogers,  26  Can. 
latter.     Woodward  v.  Payne,  16  Cal.  Sup.  Ct.  159. 

444_  36  Tuttle    v.    Leiter,    82    Fed.    947; 

A   covenant   to   pay   for   improve-  Smith  v.  St.  Philip's  Church,  10-7  N. 

ments  was  held  to  apply  only  to  im-  Y.   610,  14   N.   E.  825. 
provements    of    a    character    within 

L.  and  Ten.  107. 


16Q8       PAYMENT  FOR  TENANT'S  IMPROVEMENTS.      §  271 

those  erected  by  a  sublessee.^T  And  a  covenant  in  a  renewal 
lease,  made  to  an  assig^nee  of  the  original  lessee,  to  pay  for  im- 
provements made  by  him,  has  been  construed  as  entitling  him 
to  compensation  for  improvements  made  by  the  original  lessee, 
the  renewal  lease  expressly  providing  that  the  lessee  should  con- 
tinue to  be  the  owner  of  the  buildings  even  though  the  lease 
was  not  again  renewed,  and  securing  to  him  the  privilege  of  re- 
moving them.'^s 

An  agrcfMnent  to  pay  for  a  building,  if  a  good  and  substantial 
building  is  erected,  does  not  bind  the  lessor  to  pay  for  improve- 
ments to  l)uildings  already  erccted.^^  And  an  agreement  to  pay 
for  "permanent  improvements,  such  as  cistern,  privy,  cellar  and 
fencing,"  has  been  held  not  to  bind  him  for  grading,  or  for  shrub- 
bery and  fruit  trees,  planted  for  the  lessee's  convenience."*^ 
Where  a  lease  provided  that  the  lessor  might  either  have  im- 
provements appraised  at  the  end  of  the  term  "without  regard 
to  the  situation  or  value  of  the  premises  leiised,"  and  pay  such 
value,  or  should  renew,  it  was  held  that,  on  his  refusal  to  renew, 
he  was  liable  for  the  value  of  all  improvements,  and  not  merely 
of  those  removable  by  the  tenant.'*^ 

The  fact  that  by  the  lease  the  tenant  is  under  the  obligation 
to  keep  fencing  in  repair  does  not  relieve  the  landlord  from  lia- 
bility, under  his  covenant  to  pay  for  improvements,  to  pay  the 
value  of  fencing  placed  around  part  of  the  premises  not  fenced 
at  the  time  of  the  lease.^^ 

A  covenant  to  pay  for  "all  the  buildings  and  improvements 
that  may  be  made  on  said  lands"  has  been  said  to  include  only 
such  as  are  upon  the  premises  at  the  end  of  the  term.-*-' 

It  has  been  decided  that,  where  the  lessee  covenanted  to  build 
a  dwelling  house,  and  the  lessor  covenanted  that  if  the  lessee  per- 
formed such  covenant  he,  the  lessor,  would  either  grant  a  renewal 
or  pay  the  value  of  the  house,  the  lessor  was  not  bound  by  his 

37Tuttle   V.   Leiter,    82    Fed.    947;  "Hopkins  v.  Oilman.  47  Wis.  581, 

Wheeler  v.  Hill,  IC  Me.  329.  3  n.  W.  382,  32  Am.  Rep.  781. 

38Wray  v.  Rhinelander,   52   Barb.  42  Hazlewood  v.  Pennybacker  (Tex. 

(N.  J-)    553-  Ci.p  ^       )  50  g  ^.  ^99 

39  Smith  V.  Cooley,  5  Daly  (N.  Y.) 

iQ-,  *3  Van   Rensselaer's   Heirs  v.  Pen- 

40Delshler    v.     Golbaugh,    2     Ky.    niman,  6  Wend.   (N.  Y.)   569. 

Law  Rep.  231. 


§  271  IMPROVEMENTS  WITHIN  STIPULATION.  1699 

covenant  to  renew  or  pay  if  the  lessee  erected  a  building  of  an- 
other character  and  not  a  dwelling  house.*^  But  a  stipulation 
as  to  the  character  of  the  building  to  be  erected  by  the  lessee  may 
be  waived  by  the  lessor,  so  as  to  make  hira  liable  to  pay  therefor 
under  his  covenant,  though  the  building  erected  is  different  from 
that  stipulated,  and  it  was  held  that  the  lessor,  by  signing  and 
accepting  a  written  waiver  of  the  lessee's  option  to  take  a  re- 
newal, which  renewal  was  to  be  given  only  if  the  lessee  had  per- 
formed his  covenants^  thereby  admitted  performance  of  the  les- 
see's covenant  to  erect  a  building  according  to  certain  specifica- 
tions, and  was  consequently  liable  under  his  covenant  to  pay 
therefor.^^  In  the  same  case,  it  was  decided  that  if  the  lessee's 
covenant  to  erect  a  certain  class  of  building  goes  to  a  part  only 
of  the  consideration,  and  a  breach  thereof  may  be  compensated 
in  damages,  the  lessor  cannot  assert  such  breach  as  a  ground  for 
refusing  to  pay  for  the  building  as  agreed.*^ 

When  the  lessee  thus  covenanted  to  erect  a  building,  and  the 
lessor  covenanted  to  pay  the  fair  value  thereof  at  the  end  of  the 
term,  a  release  by  the  lessor  of  the  lessee's  covenant  to  build  was 
held  not  necessarily  to  deprive  him  of  the  right  to  build,  and  it 
was  decided  that,  if  he  did  build  voluntarily,  the  lessor  was  liable 
under  his  covenant  for  the  value  of  the  building.'*'^  The  lessor, 
having  agreed  to  pay  the  value  of  a  building  which  the  lessee  is 
given  permission  to  erect,  cannot  avoid  liability  under  such  agree- 
ment by  notifying  the  lessee  not  to  build  it.^^ 

e.    Effect  of  renewal  or  extension.     The  fact  that  the  lease  is 

44  Mcintosh  V.  St.  Philip's  Church,  was  accordingly  there  decided  that 
120  N.  Y.  7,  23  N.  E.  984.  In  Fisher  a  right  in  the  lessee  to  be  paid 
V.  Fisher,  1  Bradf.  Sur.  (N.  Y.)  335,  $5,000  for  its  building  at  the  end  of 
it  was  held  that  where  the  lessor  the  term  was  not  defeated  by  the 
covenanted  to  renew,  or  pay  the  fact  that  the  building  was  not  fin- 
value  of  "such  buildings  as  should  ished  exactly  as  provided  in  the 
be  erected  in  pursuance  of  the  lease,  the  lessor  having  received  the 
lease,"  he  was  not  liable  if  he  rent,  amounting  to  over  $100,000 
failed  to  have  the  buildings  on  the  during  the  ten  years  of  the  lease, 
premises  made  fireproof  as  stipulat-  and  the  building  having  cost  over 
ed  on  his  part  in  the  instrument  of  $30,000. 

lease.  ^^  Smith    v.    St.    Philip's    Church, 

45  Palmer    v.    Meriden    Britannia    107  N.  Y.  610,  14  N.  E.  825. 

Co.,  188  111.  508,  59  N.  E.  247.  is  McVicker    v.    Dennison,    45    Pa. 

4c  Palmer    v.    Meriden    Britannia    390. 
Co.,   188   111.   508,   59   N.    E.   247.     It 


1700  PAYMENT  FOR  TENANT'S  IMPROVEMENTS.  §  271 

renewed  or  extended  has  been  held  not  to  deprive  the  Isssee  of 
tlie  right  to  compensation  as  provided  by  the  original  lease.^^ 
And  so  it  has  been  decided  that,  where  a  lease  for  fifteen  years 
provided  that  the  lessor  might,  six  months  before  the  end  of  the 
U'vm,  take  possession  and  pay  for  improvements  made  by  the  les- 
see, and  that  in  case  of  failure*  to  give  the  notice  the  tenancy 
should  be  regarded  as  renewed  for  five  years  on  the  same  terms 
and  conditions,  the  lessee's  right  to  payment  for  improvements 
existed  at  the  end  of  any  renewal  term  as  well  as  at  the  end  of 
the  original  term.^*^  Elsewhere,  however,  it  has  been  decided  that 
when  the  lease  provided  for  payment  for  improvements  if  it  was 
not  renewed,  the  lessee  was  not  entitled  to  the  value  of  improve- 
ments on  the  property  at  the  end  of  a  renewal  term,^^  and  a  like 
view  was  asserted  even  when  the  renewal  was  of  the  lease  "witli 
all  its  conditions  unchanged  and  unimpaired.  "^2  That  the  prom- 
ise to  pay  for  improvements  is  conditioned  on  the  tenant's  per- 
formance of  his  stipulations  **  during  this  term  and  the  renewed 
term"  does  not  exclude  compensation  because  the  lease  is  not  re- 
newed.'^ 

f.  Effect  of  tenant's  breach  of  covenant.  In  New  York  it 
has  been  decided  that  the  lessor  is  under  no  obligation  to  pay 
the  value  of  improvements  under  his  covenant  so  to  do,  if  the  les- 
see has  failed  to  perform  covenants  on  his  part  to  be  performed 
at  a  time  prior  to  such  payment,  such  as  covenants  for  the  pay- 
ment of  taxes,  water  rates,  or  rent.^^  But  in  ^Missouri  it  was  held 
that  a  provision  that  "the  agreements  in  the  lease  being  per- 
formed," the  lessor  will  pay  for  improvements,  did  not  make  the 
lessor's  liability  for  improvements  dependent  on  the  perform- 
ance of  the  lessee's  agreements.^^     And  in  Pennsylvania  it  was 

49  Lane  v.  Moeder,  1  Cab.  &  El.  People's  Bank  v.  Mitchell,  73  N.  Y. 
548;  Livingston  v.  Sulzer,  19  Hiin  406;  Glaser  v.  Cumisky,  40  N.  Y.  St. 
(N.'  Y.)    375.  P-ep.  872,  16  N.  Y.  Supp.  89.     In  the 

50  Schoellkopf  v.  Ooatsworth,  166  second  case  cited  it  is  decided  that 
N.  Y.  77,  59  N.  E.  710.  such  breach  of  covenant  by  the  ten- 

r.i  King  v.  Wilson,  98  Va.  259,  35  ant  is  not  waived,  for  this  purpose, 

S.  E.  727.  tjy  the  fact  that  the  lessor  joins  in 

52  Kash  V.  Huncheon,  1  Ind.  App.  procuring    an    appraisement    of   the 

361,  27  N.  E.  645.  improvements    as    provided    by    the 

63  Butler  V.  Manny,  52  Mo.  497.  lease,  he  being  at  the  time  ignorant 

64  Johnston    v.    Bates,    48    N.    Y.  of  the  breach. 

Super.    Ct.    (16    Jones    &    S.)    180;         55  Butler  v.  Manny,  52  Mo.  497. 


§  271  EFFECT  OF  FORFEITURE  OF  LEASEHOLD.  i;o| 

considered,  apparently,  that  the  tenant 's  breach  of  an  agreement 
on  his  part  to  be  performed  justified  the  landlord's  nonperform- 
ance of  his  promise  to  pay  for  improvements  only  when  such 
agreement  "was  an  essential  part  of  the  contract  without  which 
the  lease  would  not  have  been  signed.  "^^ 

g.  Effect  of  forfeiture  of  leasehold.  When  the  lease  provides 
that  payment-s  for  improvements  shall  be  made  at  the  expiration 
of  the  "term,"  the  latter  word,  it  has  been  decided,  refers  to  the 
time  named  for  the  duration  of  the  tenancy,  and  not  to  the  lease- 
hold interest,  so  that  there  is,  in  case  of  forfeiture,  no  right  to 
immediate  payment.^''' 

An  agreement  to  pay  for  the  tenant's  improvements,  if  he  loses 
possession  before  the  expiration  of  the  term,  has  been  held  to 
impose  no  liability  in  case  of  a  forfeiture  for  the  tenant's  breacli 
of  condition.ss 

A  tenant,  by  disclaiming  the  title  of  his  landlord,  has  been  held 
thereby  to  lose  the  benefit  of  a  provision  of  this  character.^^  It 
does  not  appear  to  have  been  decided  whether  the  benefit  of  such 
a  provision  is  lost  by  a  forfeiture  for  breach  of  an  express  condi- 
tion of  the  lease.  The  decisions  above  referred  to,  that  a  right 
to  immediate  compensation  does  not  exist,^*^  might  perhaps  sug- 
gest that  compensation  may  be  claimed  at  the  end  of  the  term  of 
the  lease.^i 

h.    Change  of  parties  to  tenancy.    An  agreement  by  the  lessor 

56  Cosgrave   v.    Hammill,    173    Pa.  ss  Wilcoxen  v.  Hybarger,  1  Incl.  T. 

207,  33  Atl.   10-15.  138,  38  S.  W.  669. 

BT  Lawrence  v.  Knight,  11  Cal.  298,  b9  McQueen  v.  Chouteau's  Heirs, 
70  Am.  Dec.  779;  Finkelmeier  v.  20  Mo.  222,  64  Am.  Dec.  178, 
Bates,  92  N.  Y.  172;  Johnston  v.  eo  See  ante,  note  57. 
Bates,  48  N.  Y.  Super.  Ct.  (16  Jones  ei  In  Lawrence  v.  Knight,  11  Cal. 
&  S.)  180;  Glaser  v.  Cumisky,  40  N.  298,  70  Am.  Dec.  779;  Finlielmeier 
Y.  St.  Rep.  872,  16  N.  Y.  Supp.  89;  V-  Bates,  92  N.  Y.  172,  the  court  ex- 
Lent  v.  Curtis,  24  Ohio  Cir.  Ct.  R.  P^essly  refrains  from  considering 
592.     In  Kutter  v.   Smith.   69  U.  S.  ^^^  "^hts  of  the  tenant  in  this  re- 


(2  Wall.)    491,   it  was  similarly  de- 
cided,   as    to    a    stipulation    to    pay 


gard  at  the   end   of  the  term.     In 

Kutter  V.  Smith,  69  U.  S.   (2  Wall.) 

^     491,  the  larfguage  of  the  opinion  ap- 
for  improvements  at  a  date  named.    ^^^^.^    ^^    ^^^^^    ^^^   ^.^^    ^^^^    ^^^ 

that  it  did  not  involve  any  obiiga-  ^j^^^^  .^^  compensation  is  lost  by  for- 

tion  to  pay  for  them  at  an  earlier  feiture    and    re-entry.     In    Lent    v. 

date,    upon    the    enforcement    of    a  Curtis,  24  Ohio  Cir.  Ct.  R.  592,  the 

forfeiture.  contrary  view  is  clearly  asserted. 


1702       PAYMENT  FOR  TENANT'S  IMPROVEMENTS.      §  271 

to  pay  the  lessee  the  value  of  improvements  made  by  the  latter 
is  one  which  concerns  the  land,  and  therefore  the  benefit  thereof 
may  pass  to  the  assignee  of  the  lessee,  as  being  within  the  stat- 
ute of  32  Henry  8,  c.  34.^2  go  far,  however,  as  ree:ar(ls  improve- 
ments consisting  of  new  erections  not  existent  at  the  time  of  the 
lease,  the  rule  in  Spencer's  Case,  that  a  covenant  as  to  things 
not  in  esse  at  that  time  does  not  pass  unless  assitzns  are  men- 
tioned,^^" has  occasionally  been  applied,^^  i^^t  this  rule  has  been 
regarded  as  inapplicable  in  the  case  of  improvements  made  upon 
buildings  in  existence  at  the  time  of  the  demise.^^  Since  a  sub- 
lease does  not  have  the  etfect  of  placing  the  sublessee  in  privity 
with  the  lessor,  the  benefit  of  the  covenant  does  not  pass  to  the 
sublessee,*"^  and  it  has  apparently  been  decided  that  it  does  not 
pass  to  an  assignee,  if  the  intention  appears  to  be  that  it  shall  not 
pass.^'^  A  mortgagee  of  the  leasehold  is,  in  jurisdictions  where  a 
mortgage  passes  the  legal  title,  entitled  to  the  benefit  of  the  cove- 
nant to  the  same  extent  as  an  absolute  assicrnee.^^  It  seems  that 
an  assignee  of  the  leasehold  would  be  entitled  to  the  benefit  of  the 
covenant,  although  the  lease  prohibits  any  assignment,  such  a 
prohibition  not  ordinarily  affecting  the  validity  of  the  assignment 
itself.^'s  In  one  case,  where  there  was  such  a  prohibition  of  an 
assignment,  it  was  decided  that  the  assignee  could  not  recover 

62  See   CofTm   v.   Talman,   8   N.   Y.  stipulation  in  favor  of  the  lessee  of 

(4  Seld.)    4C5;   Stockett  v.  Howard,  the    right    to    remove   the    improve- 

34   Md.    121;    Smith   v.   St.   Philip's  ments,"  which  "would  probably  run 

Church,  107  N.  Y.  610,  14  N.  E.  825;  with   the   land."     Anderson   v.   Am- 

Lametti    v.    Anderson,    6    Cow.    (N.  monett.  77  Tenn.    (9  Lea)    1. 

Y.)   308;   Thompson  v.  Rose,  8  Cow.  62a  See  ante,  §  149  b  (4). 

(N.   Y.)    266;    Schoellkopf  v.   Coats-  63  Coff.n    v.    Talman,    8    N.    Y.    (4 

worth,  166  N.  Y.  71,  59  N.  E.   710;  Seld.)     565:    Thompson    v.    Rose,    8 

Bailey  v.  Richardson,  66  Cal.  416,  5  Cow.    (N.   Y.)    266;    Cronin  v.   Wat- 

Pac.  910;  Hunt  v.  Danforth,  2  Curt,  kins,   1   Tenn.   Ch.  119.     See   Holly- 

592,  Fed.  Cas.  No.  6,887;   Conover  v.  wood   v.   First  Parish   in   Brockton, 

Smith,  17  N.  J.  Eq.  (2  C.  E.  Green)  192  Mass.  269,  78  N.  E.  124,  7  L.  R. 

51,  86  Am.  Dec.  247.  A.   (N.  S.)   621. 

A    stipulation    for    the    valuation  g4  Conover  v.  Smith,  17  N.  J.  Eq. 

of  improvements   at   the  expiration  (2   C.    E.    Green)    51,    86   Am.    Dec. 

of  the  term,  and  for  a  surrender  of  247.     See  Spencer's  Case,  5  Coke,  16. 

the     premises     upon     the     payment  es  Tuttle  v.  Leiter,  82   Fed.  947. 

thereof,  retaining  a  lien  on  the  im-  ee  Tuttle  v.  Leiter,  82  Fed.  947. 

provements   for    the  amount   of  the  e?  Stockett  v.  Howard,  34  Md.  121. 

valuation  if  not  paid,  "may  be  con-  cs  See  ante,  §  152  j  (2). 
sidered  as  an  analagous  to  the  usual 


.  271  CHANGE  OF  PARTIES  TO  TENANCY.  1703 

on  the  coyenant,««  but  there  the  decision  of  the  majority  of  the 
court  was  based  on  the  ground  that,  as  the  term  had  expired  at 
the  time  of  the  assignment,  this  was  a  transfer  of  the  interest 
under  an  oral  lease  merely,  and  so  not  within  the  statute  of  32 
Henry  8,  c.  34.  Though  the  assignee  is  ordinarily  entitled  to  the 
compensation  rather  than  the  lessee  himself,  he  cannot  assert  any 
claim  thereto  as  against  the  lessor,  if  the  latter  has  paid  such  com- 
pensation to  the  original  lessee  without  notice  of  the  assignment.' 

The  transfer  by  the  lessee  of  all  his  right,  title,  and  interest  in 
and  to  the  lease,  has  been  held  to  transfer  the  right  to  the  build- 
ings and  the  alternative  right  to  payment  therefor.^i  And  an  as- 
signment of  the  lease  will  pass  the  benefit  of  a  stipulation  for  a 
liln  for  the  value  of  the  improvements.-^^  it  has  been  decided 
that  thou-h  the  lessee  occupies  the  premises  as  a  homestead  and 
consequently  cannot  transfer  his  leasehold  interest  without  the 
joinder  of  his  wife,  he  may,  without  her  joinder,  assign  his  rights 
under  the  lessor's  covenant  to  pay  for  improvements." 

As  upon  an  assignment  of  the  leasehold  interest  the  benefit  of 
the  ac-reement  to  pay  for  improvements  may  pass  to  the  assignee, 
so  upon  a  transfer  of  the  reversion  the  burden  of  the  agreement 
will  pass  to  the  lessor  as  a  covenant  running  with  the  land,  pro- 
vided at  least  "assigns"  are  named  in  the  covenant."^^  Ordinarily 
it  has  been  held  not  to  pass,  so  as  to  entitle  the  lessee  to  compen- 
sation as  against  a  transferee,  when  -  assigns"  are  not  mentioned 
in  the  covenant  or  agreement,^'^  though  in  some  jurisdictions  this 

c«Elliottv.  Johnson.  L.R.  2  Q.B.  t2  Anderson  v.  Ammonett.  77 
-2Q  Tenn.  (9  Lea)  1. 

70  Cronin  v.  Watkins.  1  Tenn.  Ch.  73  Pelan  v.  DeBevard,  13  Iowa,  53. 
119  The  recent  case  of  Smyth  v.  74  That  a  devisee  of  the  landlord 
Stoddard,  203  111.  424,  67  N.  E.  980,  for  life,  who  is  in  receipt  of  the 
96  Am  St  Rep.  314,  ante,  note  33.  rents  and  profits,  is  the  person  sub- 
is  apparently  to  the  effect  that  the  ject  to  the  liability,  see  Mansel  v. 
lessor  has  no  right  to  transfer  the  Norton,  22  Ch.  Div.  7C9. 
reversion  without  reserving  the  im-  75  Grey  v.  Cuthbertson,  4  Doug, 
provements  which  the  lessee  has  a  351;  McClary  v.  Jackson,  13  Ont. 
right,  by  the  terms  of  the  lease,  310;  Etowah  Min.  Co.  v.  Wills  Val- 
either  to  remove  or  claim  compensa-  ley  Min.  &  Mfg.  Co.,  121  Ala.  672,  25 
^jQjj  for.  So.    720;    Hansen    v.   Meyer,    81    111. 

71  California  Annual  Conference  V.  321,  25  Am.  Rep.  282;  Watson  v. 
Seitz  74  Cal.  287,  15  Pac.  839.  See  Gardner,  119  111.  312,  10  N.  E.  19^; 
Tsman  v.  Hanscom.  217  Pa.  133,  66  Id..  18  111.  App.  (18  Bradw.)  386; 
^^1    329^  Coffin  v,  Talman,  8  N.  Y.   (4  Seld.) 


1704 


PAYMENT  FOR  TENANT'S  IMPROVEifENTS. 


§271 


distinction  is  not  recognized,  and  the  transferee  of  the  reversion 
is  held  liable  although  assigns  are  not  nainedJ*  In  perhaps  two 
cases  the  fact  that  the  lessee  is  under  no  obligation  to  make  im- 
provements, but  has  merely  the  ripht  to  make  them,  is  regarded 
as  rendering  the  covenant  to  pay  for  improvements  personal 
merely  to  the  lessor  and  not  binding  on  his  transferee.''^ 

A  covenant  of  this  character  will  not  bind  one  to  whom  the 
land  is  conveyed  after  the  termination  of  the  lease  and  relin- 
quishment of  possession  by  the  lessee,  since  the  covenant  has  tlu-n 
been  broken  and  turned  into  a  right  of  action/^ 

The  heirs  of  the  lessor  stand  in  the  same  position  as  regards 
liability  under  such  a  covenant,  as  do  tlie  transferees  by  convey- 


ance inter  vtvos 


79 


A  covenant  by  the  lessor  to  make  compensation  for  personalty 
brought  on  the  land,  but  not  affixed  thereto,  does  not  burden  his 
transferee,  this  being  in  no  sense  a  covenant  running  with  the 
land.**^ 


4f,5;  In  re  Hensliaw,  37  Misc.  536. 
75  N.  y.  Supp.  1047;  Bream  &  Co.  v. 
Dickereon,  21  Tenn.  (2  Kuniph.) 
126.     See  ante,  §  149  b   (2). 

76Frecerick  v.  Callaban,  40  Iowa, 
311;  Ec&e  v.  Fetzer,  65  Wis.  55,  23 
K.  W.  266. 

In  Schoellkopf  v.  Coatsworth,  166 
N.  Y.  77,  59  N.  E.  710,  where  the 
lea3«  proYided  that  the  lease  should 
be  regarded  as  renewed  for  another 
five  years  unless  the  lessors  notified 
the  lessee,  his  executors,  administra- 
tors or  assigns,  at  least  six  months 
before  the  end  of  the  term,  of  their 
election  to  pay  for  certain  buildings 
to  be  erected  by  the  lessee,  and  the 
transferee  of  the  lessor  gave  such  no- 
tice, and  accordingly  recovered  pos- 
session at  the  end  of  the  term  from 
assignees  of  the  lessee,  it  was  de- 
cided ti,at  the  lesssee's  assignee 
could  recover  against  the  lessor's 
transferee  under  the  provision  as 
to  payment  for  buildings.  There, 
though  the  transferee  was  held 
bound,    the    covenant    did    not    in 


terms  bind  "assigns."  The  decl- 
Klon  is,  however,  in  part,  based  up- 
on the  state  of  the  pleadings. 

In  Bell  V.  Bitner,  33  Ind.  App.  6. 
70  N.  E.  549,  the  lessee  was  not  al- 
lowed to  set  off,  in  an  action  for 
rent  by  the  lessor's  transferees,  a 
claim  on  account  of  a  promise  by 
the  lessor  to  pay  for  improvements, 
the  answer  not  alleging  that  the  de- 
fendant  "has  any  equitable  or  other 
lien  on  the  rents  due  plaintiffs,  nor 
that  there  is  any  personal  liability 
on  the  part  of  plaintiffs  for  the 
amount  claimed  to  be  due  defend- 
ant." 

77  Etowah  Min.  Co.  v.  Wills  Valley 
Min.  &  Mfg.  Co.,  121  Ala.  672,  25  So. 
720;  Gardner  v.  Samuels,  116  Cal. 
84.  47  Pac.  935,  58  Am.  St.  Rep.  135. 

Tf' Coffin  v.  Talman,  8  N.  Y.  (4 
Seld.)  465;  Gardner  v.  Samuels,  116 
Cal.  84,  47  Pac.  935,  58  Am.  St.  Rep. 
135. 

79  Hazlewood  v.  Pennybacker  (Tex. 
Civ.  App.)   50  S.  W.  199. 

80  Etowah  Min.  Co.  v.  Wills  Val- 


I  271  TITLE  TO  IMPROVEMENTS.  1705 

The  tenant  is  entitled  to  the  benefit  of  the  lessor's  covenant  to 
pay  for  improvements,  which  was  in  terms  conditioned  upon  the 
delivery  of  possession  at  the  end  of  the  term  to  the  lessor,  al- 
though the  delivery  of  possession  was  to  the  lessor's  transferee, 
such  delivery  being  in  effect  authorized  by  the  transfer  of  the  re- 
version.^i 

i.  Title  to  improvements.  The  fact  that  the  lessor  covenants 
to  pay  the  lessee  at  the  end  of  the  term  for  improvements  made 
by  the  latter  should  not,  it  seems,  affect  the  title  to  the  improve- 
ments erected  by  him,^^  g^^^j  go  it  occasionally  has  been  decided 
that,  in  view  of  the  character  of  a  building  erected  by  the  les- 
see, for  which  the  lessor  was  to  make  compensation,  it  belonged 
to  the  lessor  immediately  on  its  erection.^^  In  another  case,  how- 
ever, an  agreement  to  pay  for  the  building,  in  connection  with 
other  stipulations,  was  regarded  as  recognizing  the  title  as  being 
in  the  lessee.^^  And  where  the  lease  provided  that  the  tenant 
might  either  remove  the  building  erected  by  him  or  require  the 
landlord  to  take  it  at  a  stipulated  price,  a  notice  by  the  tenant 
to  the  landlord  to  take  the  building  was  regarded  as  vesting  the 
title  to  the  building  in  the  landlord,  the  title  being  thus,  by  im- 
plication, regarded  as  in  the  tenant  till  such  election.^s  So  when 
the  lease  contained  a  covenant  by  the  lessor  to  purchase  the  build- 
ings at  a  price  to  be  fixed  by  appraisers,  it  was  said  that,  upon 
the  expiration  of  the  term,  "by  operation  of  law  they  would  be- 
come the  property  of  the  lessor  without  any  conveyance  or 
transfer. '  '^^ 

ley  Mil).  &  Mfg.  Co.,  121  Ala.  672,  25  51  Conn.  259.     In  Howe's  Cave  Ass'n 

So.   720;   Gorton  v.  Gregory,  3  Best  v.    Houck,    66    Hun,    205,    21    N.    Y. 

&  S.  90.  Supp.    40,  it  was  decided  that  where 

S5  Smyth  v.  Stoddard,  203  111.  424,  the  lease   provided  that,  if  the  les- 

67  N.  B.  980,  96  Am.  St.  Rep.   314,  sor  refused  to  renew  he  should  pay 

ante,  notes   33,  70.  for  the  buildings  then  on  the  prem- 

fi2  Bee,  as  to   the  title  to  fixtures  ises,  and  that  such  payment  should 

annexed  by  the  tenant,  ante,  chap-  pass  title  to  the  buildings,  a  renewal 

ter  XXIII.  did  not  so  pass  title,  or  deprive  the 

B3  Kutter   V.    Smith,   69   U.    S.    (2  lessee   of  his    right   to   remove  the 

"Wall.)    491,   17  Law.  Ed.  830;    Bass  buildings  as  trade  fixtures. 

V.  Metropolitan  "West  Side  El.  R.  Co.  so  Allen   v.    Gates,   73  Vt.   222,   50 

(C.  C.  A.)   82  Fed.  857,  39  L.  R.  A.  Atl.  1092. 

711.  8c.  Hood    V.    Hartshorn,    100   Mass. 

84  Russell  V.  City  of  New   Haven,  117,  1  Am.  Rep.   89. 


1706       PAYMENT  FOR  TENANT'S  IMPROVEMENTS.      §  271 

j.  Valuation  of  improvements.  It  has  in  one  statu  been  de- 
cided that,  in  the  particular  case,  the  lessor's  covenant  to  pay  the 
value  of  tlie  improvements  refers  to  the  value  at  the  time  of  the 
expiration  of  the  tenancy,'*'^  and  such  seems  the  natural  con- 
struction of  a  provision  for  appraisement.  In  another  state  a 
provision  that  the  lessee  should  be  allowed  for  "improvements 
and  betterments"  was  held  to  require  improvements  to  be  paid 
for  at  their  reasonable  cost  at  the  time  at  which  they  were  made.^"* 
The  value  of  repairs  which  the  tenant  was  expressly  required  to 
pay  was  held  to  be  their  value  as  contained  in  the  structure,  and 
not  the  value  of  the  material  if  removed,*^  and  the  same  view 
appears  to  have  been  adopted  as  to  improvements  made  by  the 
tenant,  although  the  lease  provided  for  thoir  appraisement  "with- 
out regard  to  the  situation  or  value  of  the  premises  leased.  """^ 
When  the  contract  is  to  pay  what  the  improvements  are  worth 
at  the  expiration  of  the  lease,  their  oriirinal  cost  and  their  sub- 
sequent deterioration  from  use  and  abuse  are,  it  has  been  decided, 
not  to  be  considered.^^ 

The  amount  found  due  by  appraisers  named  in  accordance  with 
the  terms  of  the  lease  has  been  regarded  as  money  due  on  an 
instrument  of  writing,  within  a  statute  authorizing  the  allow- 
ance of  interest  on  money  so  due.''^  In  one  jurisdiction  it  has 
been  held  that  the  lessee  is  entitled  to  interest  from  the  date  of 
the  determination  of  the  value  of  the  improvements,  even  though 
he  thereafter  wrongfully  retains  possession  of  the  premises.^^ 
There  is  elsewhere,  however,  a  contrary  decision.^^ 

When,  as  is  frequently  the  case,  the  instrument  of  lease  provides 
that  the  value  of  the  improvements  shall  be  determined  by  ap- 
praisers, the  appraisement  thus  made,  by  appraisers  named  in 
accordance  with  the  terms  of  the  lease,  is,  ordinarily  at  least,  bind- 

87  Berry  v.  Van  Winkle,  2  N.  J.  Eq.  oi  Edwards  v.  Van  Patten,  46  Kan. 

(1   H.   W.   Green)    390;    Pintard   v.  509,  26  Pac.  958. 

Irwin,  20  N.  J.  Law   (Spencer)   497.  92  Pearson   v.    Sanderson,    128    111. 

sswisehart  v.  Grose,  71  Ind.  260.  88,    21   N.   E.    200.     Compare   Shool- 

And  see  Ross  v.  Zuntz,  36  La.  Ann,  bred  v.  Elliott,  1  Brev.  (S.  C.)  423. 

888.  93  Conger  v.  Ensler,  85  App.   Dlv. 

soLadd  V.  Hawkes,  41  Or.  247,  68  564,  83  N.  Y.  Supp.  419. 

Pac.  422.  94  Hopkins  v.  Oilman,  47  Wis.  581, 

00  Hopkins  v.  Gilman,  47  Wis.  581,  3  N.  W.  382,  32  Am.  Rep,  781.     See 

3  N.  W.  382,  32  Am.  Rep.  781.  post,  at  note  121. 


§  271  VALUATION  OF  IMPROVEMENTS.  1707 

ing  on  both  parties.^^  The  lease  thus  providing  for  the  deter- 
mination of  the  value  of  the  improvements  by  individuals  acting 
as  appraisers,  the  landlord  cannot  demand  that  the  appraisement 
be  submitted  for  approval  to  the  probate  court,  although  his  in- 
terest in  the  land  is  that  of  a  guardian  merely .^^  If  the  lease 
provides  for  an  appraisement  by  three  persons,  a  determination 
by  a  majority  merely  is  not  binding.^'^ 

Such  a  provision  for  appraisement  has  usually  not  been  re- 
garded as  constituting  a  submission  to  arbitration,'''^  and  conse- 
quently a  notice  to  the  parties,  before  making  the  appraisement, 
has  been  held  to  be  unnecessary .^^  It  has,  however,  occasionally 
been  held  that  it  does  constitute  a  submission  to  arbitration,^'^*^ 
and  in  one  case  it  was  explicitly  decided  that  notice  to  the  par- 
ties was  necessary,  the  appraisement  involving  to  some  extent  a 
construction  of  the  language  of  the  provision.^^i 

If  the  lessor  refuses  to  join  in  the  naming  of  appraisers  as  pro- 
vided by  the  lease,  the  lessee,  it  has  been  decided,  may  sue  to  re- 
cover the  value  of  the  improvements.^®^  But  before  he  can  so  sue 
he  must  have  done  all  in  his  power  to  procure  an  appraisement, 
and  if  one  set  of  ajipraisers  do  not  effectuate  an  appraisement,  he 
must  endeavor  to  ])rocure  others, ^and  whether  he  has  thus  acted 
with  diligence  is  a  question  for  the  jury.'®^  If  the  parties  cannot 
agree  on  appraisers,  or  the  appraisers  cannot  agree  on  a  valua- 
tion, the  lessor,  if  not  in  fault,  may  proceed  in  equity  to  have  the 
value  of  the  improvements  determined,^ °'*  as  may  the  lessee.^^^ 

05  See  Yeatman  v.  Clemens,  6  Mo.  Johns.   (N.  Y.)   405;   Janney  Semple 

App.    210;    Zorkowski    v.    Astor,    13  &   Co.   v.   Goehringer,   52  Minn.  428, 

Misc.   507,  34  N.  Y.  Supp.  948.  54  N.  W.  481.     This  view  is  indicat- 

i<6  Nichols  V.  Sargent,  125  111.  30y,  ed  in  Hood  v.  Hartshorn,  100  Mass. 

17  N.  E.  475,  8  Am.  St.  Rep.  378.  117,  1   Am.  Rep.  89. 

87  Lorenzo   v.   Derry,    26   Hun    (N.  loi  Janney  Semple  &  Co.  v.  Goeh- 

y.)    447.  ringer,  52  Minn.  428,  54  N.  W.  481. 

08  California  Annual  Conference  v.  102  Morton  v.   Weir,  70  N.  Y.  247, 

Seitz,    74    Cal.    287,    15    Pac.    839;  26   Am.    Rep.   583. 

Pearson  v.  Sanderson,  128  111.  88,  21  103  Hood  v.  Hartshorn,  100  Mass. 

N.  E.  200;  Pintard  v.  Irwin,  20  N.  J.  117,   1   Am.   Rep.    89.     See   HoUiday 

Law  (Spencer)  497;  Flint  v.  Pearce,  v.  Marshall,  7  Johns.   (N.  Y.)   211. 

11  R.  I.  576.  10*  Reformed  Protestant  Church  v. 

08  Pearson    v.    Sanderson,    128    111.  Parkhurst,   17    N.   Y.    Super.    Ct.    (4 

88,  21  N.  B.  200.     See  ante,  §  173  d,  Bosw.)    491;    Conger    v.    Ensler,    85 

at  note  234.  App.  Div.  564,  83  N.  Y.  Supp.  419. 

100  Van  Cortlandt  v.  Underhill,  17  105  Bales  v.  Gilbert,   84   Mo.   App. 


1708       PAYMENT  FOR  TENANT'S  IMPROVEMENTS.      §  271 

In  one  case  it  was  dccidotl  tliat,  -when  the  lease  provided  for  the 
appointment  of  one  appraiser  by  each  party,  these  to  appoint  a 
third  in  case  of  disagreement,  the  lessor  might,  if  the  lessee  re- 
fused to  appoint  one  appraiser,  himself  appoint  two,  whose  ap- 
praisement should  be  binding.i*^^  This,  however,  appears  rather 
questionable.^"" 

k.  Possession  of  premises  pending  payment.  Upon  the  ques- 
tion whether,  if  the  landlord  fails  to  pay  for  the  tenant's  improve- 
ments at  the  end  of  the  term  as  agreed,  the  tenant  may  retain 
possession  of  the  premises  until  the  payment  is  made,  the  deci- 
sions are  not  in  accord.  Since  the  right  to  compensation  itself  is 
purely  the  result  of  express  contract,  it  might  seem  that  the  right 
so  to  retain  possession  could  exist  only  by  express  stipulation  to 
that  effect,  and  it  has  been  so  decided  in  several  cases. ^'^^  In 
New  York  it  has  been  decided  that  the  provision  of  a  lease  that 
in  case  the  lessors  did  not  give  six  months'  notice  of  their  elec- 
tion to  take  possession  of  the  premises  at  the  end  of  the  term,  and 
to  pay  for  the  buildings  then  standing  thereon  at  a  value  to  be 
determined  by  appraisers  to  be  appointed,  they  would  renew  the 
lease  for  a  further  term,  did  not  require  payment  for  the  building 
as  a  condition  precedent  to  the  lessee's  obligation  to  relinquish 
possession,^ '^^  and  the  same  view  was  taken  in  that  state  even  when 
the  lease  provided  for  the  lessee's  relinquishment  of  possession  at 
the  end  of  the  term  "upon  the  lessor's  payment  for  improve- 
ments. "^^^     A  right  to  retain  possession  till  payment  for  improve- 

675;    Hug  v.   Van   Burkleo,   58   Mo.  Tenn.     (2    Humph.)     126;     Hite    v. 

202;  White  Stone  Quarry  Co.  v.  Bel-  Parks,    2    Tenn.    Ch.    373;    Swift    v. 

knap  &  D.  Stone  Co.,  13  Ky.  Law  Rep.  Sheehy,  88  Fed.  924.     And  see  cases 

244,    16   S.    W.    354,   17    S.   W.   162;  denying  the  existence  of  a  lien  for 

Hopkins    v.    Gilman,    22    "Wis.    476.  the  value  of  the  improvements,  post, 

See  City  of  Providence  v.  Master  of  note    129. 
St.  John's  Lodge,  2  R.  I.  46.  io9  In    re    Coatsworth,    160    N.    Y. 

106  Conner  V.  Jones,  28  Cal.  59.  114,    54    N.    E.    665.     But    see    the 

107  In  Smith  v.  St.  Philip's  Church,  statement  quoted  from  Van  Beuren 
107  N.  Y.  610,  14  N.  B.  825,  there  v.  Wotherspoon,  164  N.  Y.  368,  57 
nvas  a  provision  in   the  lease  that,  N.  E.  633,  at  note  115,  post. 

if  either   party   failed   to    name   an  noTallman  v.  Coffin,   4  N.  Y.    (4 

appraiser,    the    one    named    by    the  Comst.)     134.     This    would     rather 

other  might  name  one  to  act  with  seem   to   overrule   Van   Rensselaer's 

him.  Heirs  v.  Penniman,  6  Wend.  (N.  Y.) 

108  Speers  v.  Flack,  34  Mo.  101,  84  569,  where  there  was  a  practically 
Aip.  Dec.  74;  Bream  v.  Dickerson,  21  similar  covenant,  and  the  lessee  was 


§  271         POSSESSION  OF  PREMISES  PENDING  PAYMENT.  1709 

ments  was  evidently  not  contemplated  by  a  provision  requiring 
the  lessor  to  pay  the  appraised  value  within  thirty  days  after  ap- 
praisal and  surrender  of  possession,^ ^^  nor  by  a  covenant  for  ap- 
praisement and  payment  of  the  appraised  value  in  one,  two  and 
three  years  after  the  expiration  of  the  term,  the  lease  also  contain- 
ing a  covenant  by  the  lessee  to  relinquish  possession  at  the  end  of 
the  term.112  Even  though  the  lease  expressly  provides  that  the 
lessee  shall  retain  possession  till  compensated  for  improvements, 
the  lessor  is  entitled  to  recover  possession  upon  tendering  the  full 
value  of  the  improvements,  it  has  been  decided,  though  this  is  not 
accepted,  and  he  need  not  proceed  in  equity  to  compel  the  accept- 
ance of  the  tender.113 

By  some  decisions  the  lessee  is  regarded  as  entitled  to  retain 
possession  imtil  the  stipulated  compensation  is  paid,  although 
there  is  no  express  language  giving  him  such  a  right,  on  the  theory, 
apparently,  that  he  has  an  equitable  lien  on  the  premises  for  the 
value  of  his  improvements,  and  that  for  this  reason  equity  will 
protect  his  possession  till  payment  therefor.i^*  In  New  York, 
when  the  lessor's  covenant  was  either  to  pay  the  value  of  the  im- 
provements or  to  grant  a  new  lease,  it  was  said  that  "the  lessee  at 
the  expiration  of  the  term  is  entitled  to  retain  the  possession 
until  the  covenant  shall  be  performed  by  the  lessor.  "^^^  Jq  other 
states,  likewise,  such  alternative  provisions  for  a  renewal  or  pay- 
ment for  improvements  have  been  decided  to  give  the  lessee  the 
right  to  retain  possession  till  such  payment  is  made,*!^  and  it  does 

held   to   be   entitled   to    retain   pos-  Co..  35  Neb.  766,  53  N.  W.  979;  Mul- 

session  till  paid.     This  earlier  case  len    v.   Pugh,   16   Ind.    App.   337,   45 

is,    however,    referred    to    with    ap-  N.  E.  347. 

proval  in  In  re  Coatsworth,  160   N.        us  Van    Beuren    v.    Wotherspoon, 

Y.  114,  54  N.  E.  665.  164  N.  Y.  368,  57  N.  E.  633.     But  see 

111  Bresler  v.  Darmstaetter,  57  In  re  Coatsworth,  160  N.  Y.  114,  54 
Mich.  311,  23  N.  W.  825.  N.  E.   665,  ante,   note  109. 

112  Manigault  v.  Carroll,  1  McCord  iie  Franklin  Land,  Mill  &  Water 
Law   (S.  C.)   91.  Co.  v.  Card,  84  Me.  528,  24  Atl.  960; 

113  Fraer  v.  Washington,  60  C.  C.  Gray  v.  Cornwall,  95  Ky.  566,  26  S. 
A.  194,  125  Fed.  280.  W.  lOlS;   Holsman  v.  Abrams,  9  N. 

114  Franklin  Land,  Mill  &  Water  Y.  Super.  Ct.  (2  Duer)  435;  Mullen 
Co.  V.  Card,  84  Me.  528,  24  Atl.  960;  v.  Pugh,  16  Ind.  App.  337,  45  N.  E. 
Hopkins  v.  Oilman,  22  Wis.  476;  Id.,  347.  In  the  case  first  cited,  it  is 
47  Wis.  581.  3  N.  W.  382,  32  Am.  said  that  "the  very  terms  of  the 
Rep.  781;  Eoke  v.  Fetzer,  65  Wis.  55,  lease  imply"  such  an  agreement. 

26  N.  W.  266;  Haynes  v.  Union  Inv. 


1710       PAYMENT  FOR  TENANT'S  IMPROVEMENTS.      §  271 

not  eloarly  app'^ar  that  the  deeisioTif?  might  not  have  been  the  same 
even  had  there  been  no  alternative  right  of  renewal. 

A  provision  that  the  lessee  shall  give  up  possession  when  the 
value  of  the  improvements  is  paid  to  him  evidently  contemplates 
a  retention  of  possession  till  this  is  done.^^^  Occasionally  the  pro 
vision  is  for  retention  of  possession  till  the  value  of  the  improve- 
ments is  repaid  to  the  les.sce  from  the  rents  and  profits.^ ^^  In  one 
state  it  was  held  that,  even  though  the  lease  expressly  provided 
for  retention  of  posse?;sion  till  payment  of  compensatitm,  t'nis  did 
not  enable  the  lessor  to  defer  such  payment  indefinitely,  allow- 
ing the  lessee  to  retain  possession,  and  that  it  was  proper  for 
equity  to  order  a  sale  under  the  lien  for  the  value  of  the  improve- 
ments.i^^ 

If  the  lessee  retains  possession  after  the  term,  on  account  of 
nonpayment  for  improvements,  and  this  is  recognized  as  rightful, 
either  by  reason  of  the  provisions  of  the  lease  or  otherwise,  he  is, 
it  has  been  decided,  in  the  position  of  a  mortgagee  in  possession, 
and  so  liable  for  the  rents  and  profits  of  the  premises,^  20  -while  he 
is  entitled,  it  has  been  decided,  to  interest  on  his  claim  for  com- 
pensation, computed  from  the  time  at  which  this  is  ascertained.^21 
By  other  cases  the  tenant  holding  over  for  this  cause  is  not  re- 
garded as  a  mortgagee  in  possession,  but  as  holding  under  the 
lease,  and  so  liable  for  rent  at  the  rate  named  in  the  lease  and 
for  no  more. ^-2 

117  Moshassuck      Encampment      v.  In  Hopkins  v.  Gilman,  47  Wis.   581, 

Arnold  &  Maine,  25  R.  I.  65,  54  Atl.  3  N.  W.  382,  32  Am.  Rep.  781,  It  is 

771;   Douglaston  Realty  Co.  v.  Hess,  said  that  "under  the  circumstances, 

124   App.   Div.   508,   108   N.   Y.  Supp.  we  are  disposed  to  treat  the  plain- 

1036.     But  see  Tallraan  v.  Coffin,  4  tiff  like  a  mortgagee  in   possession 

N.  Y.  (4  Comst.)  134,  ante,  note  110.  after    condition    broken,    liable    for 

lis  Batchelder  v.   Dean,   16  N.   H.  the    rent   and   the   payment   of   the 

265.  taxes    stipulated    in    the    lease,    but 

119  Gray  v.  Cornwall,  95  Ky.  566,  that  he  is  not  entitled  to  interest  on 
26  S.  W.  1018.  the  value  of  his  improvements." 

120  Scruggs  V.  Memphis  &  C.  R.  i-i  Scruggs  v.  Memphis  &  C.  R. 
Co.,  108  U.  S.  368,  27  Law.  Ed.  756,  Co.,  108  U.  S.  368,  27  Law.  Ed.  756. 
approved  in  Franklin  Land,  Mill  &  But  see  Hopkins  v.  Gilman,  47  Wis. 
Water  Co.  v.  Card,  84  Me.  528,  24  581,  3  N.  W.  382,  32  Am.  Rep.  781, 
Atl.  960.  And  see  State  v.  Pass-  quoted  in  last  preceding  note,  and 
more,  61  Ark.  363,  33  S.  W.  214;  also  notes  92-94,  ante. 
Moshapsuck  Encampment  v.  Arnold  122  Van  Beuren  v.  Wotherspoon, 
&  Maine,   25   R.    I.   65,   54   AU.   771.  164  N.  Y.   368,   57  N.  E.   633;    Hols- 


§  271  LIEN.  1711 

If  the  retention  of  possession  is  due  to  the  fault  of  the  tenant, 
as  when  he  refuses  to  join  in  the  appraisement  of  the  improve- 
ments in  accordance  with  the  terms  of  the  lease,  he  is  then,  it  has 
been  decided,  liable  for  the  value  of  the  use  and  occupation,i23 
and  he  should,  it  seems,  be  subject  to  the  same  liabilities,  such  as 
that  for  double  value,  as  in  any  case  of  wrongful  holding  over.i24 
It  has  also  been  decided  that,  for  his  occupation  pending  negotia- 
tions for  a  renewal,  he  can  be  charged  only  in  the  amount  of  the 
rent  named  in  the  lease. ^  24a 

1.  Enforcement  of  payment — Lien.  In  case  of  breach  by  the 
lessor  of  an  agreement  of  this  character,  the  lessee  may  no  doubt 
bring  an  action  at  law  for  damages.^  25  j^  \^r^^  been  said,  how- 
ever, that  "cases  of  this  sort  are  proper  matters  for  the  considera- 
tion of  courts  of  equity,  where  specific  performance  may  be  re- 
quired, or  the  rights  of  the  parties  may  otherwise  be  determined 
as  equitable  principles  may  require. "^26  ^jj(j  equity  obviously  has 
jurisdiction  of  a  proceeding  to  enforce  a  lien  for  the  value  of  the 
improvements,  conceding  that  such  a  lien  exists.^  27 

Though  there  are  a  number  of  cases  to  the  effect  that  the  land- 
lord has  a  lien  upon  the  premises  for  the  value  of  the  improve- 
ments,^28  there  are  also  decisions  to  the  contrary.129     ^he  exist- 

man  v.  Abrams,  9  N.  Y.  Super.  Ct.  Canal    Elevator    Co.    v.    Brown,    36 

(2  Duer)    435.  Ohio  St.  660. 

123  Conger  v.  Ensler,  85  App.  Ulv.  i2<!  Franklin   Land,   Mill   &  Water 

564,  83  N.  Y.  Supp.  419.  Co.  v.  Card,  84  Me.  528,  24  Atl.  960. 

12-t  See  ante,  chapter  XXI.  127  See  Conover  v.  Smith,  17  N.  J. 

124a  Conger  v.  Ensler,  85  App.  Dlv.  Eq.  (2  C.  E.  Green)  51,  86  Am.  Dec. 

564,  83  N.  Y.  Supp.  419.  247.     And  post,  notes  138,  130-133. 

125  See  California  Annual  Confer-  128  Berrie  v.   Woods,  12  Ont.  693; 

ence  v.   Seitz,    74   Cal.   287,   15    Pac.  Bresler    v.    Darmstaetter,    57    Mich. 

839;    Pearson  v.  Sanderson,   128  111.  311,  23  N.  W.  825;  Copper  v.  Wells, 

88.  21  N.  E.  200;  Frederick  v.  Calla-  1   N.   J.  Eq.    (Saxton)    10;    Berry  v. 

han,  40  Iowa,  311;   Edwards  v.  Van  Van  Winkle,  2   N.  J.  Eq.    (1   H.  W. 

Patten,    46   Kan.    509,    26    Pac.    958;  Green)  390;  Conover  v.  Smith,  17  N. 

Duff  V.  Snider,  54  Miss.  245;  Hood  v.  J.  Eq.    (2  C.  E.  Green)    51,  86  Am. 

Hartshorn,    100    Mass.    117,    1    Am.  Dec.    247;     Franklin    Land,    Mill    & 

Rep.    89;    Butler  v.   Manny,    52   Mo.  Water  Co.   v.   Card,   84   Me.    528,   24 

497;   Morton  v.  Weir,  70  N.  Y.  247,  Atl.  960;  Spielmann  v.  Kliest,  36  N. 

26  Am.  Rep.  583;  Lametti  v.  Ander-  J.   Eq.   199;    Hopkins  v.  Gilman,   22 

son,  6  Cow.   (N.  Y.)  302;  Gorman  v.  Wis.  476;   Id.,  47  Wis.  581,  3  N.  W. 

Bellamy,  82  N.  C.  496;   Cosgrave  v.  382;   Ecke  v.  Fetzer,  65  Wis.  55,  26 

Hammill,-  173  Pa.  207,  33  Atl.  1045;  N.  W.  979;  Gray  v.  Cornwall,  95  Ky. 


1712 


PAYMENT  FOR  TENANT'S  IMPROVEMENTS. 


§  271 


ence  of  such  a  lien  has  been  asserted  upon  the  theory  that  it  is 
in  effect  a  vendor's  lien  for  the  price  of  the  improvements.i^o 

It  has  been  decided  that  such  a  lien,  though  otherwise  nonex- 
istent, is  created  by  a  provision  that  at  the  expiration  of  the  term 
the  lessor  shall  pay  the  appraist-d  value  of  the  improvements,  and 
that  he  shall  Lecorao  the  owner  and  entitled  to  the  possession 
thereof  "upon  payment  to  the  lessees  of  said  sum."i3i  And  where 
the  lease  and  the  covenant  to  pay  for  improvements  were  by 
trustees,  who  expressly  made  themselves  liable  only  in  their  trust 


566,  26  S.  W.  1018.  In  Scruggs  v. 
Memphis  &  C.  R.  R.  Co..  lOS  U.  S.  368. 
27  Law.  Ed.  756.  it  is  strited  that  the 
Supreme  Court  of  Mississippi  recog- 
nized the  existence  of  a  lien.  Deci- 
sions to  the  effect  that  the  tenant 
may  retain  possession  until  pay- 
ment is  made  (ante.  §  271  k)  in 
effect  give  a  lien. 

129  The  Confiscation  Cases.  1 
Woods,  221,  6  Fed.  C^.  No.  3,097; 
Swift  V.  Sheehy,  88  Fed.  924;  Gard- 
ner v.  Samuels.  116  Cal.  84.  47  Pac. 
935,  58  Am.  St.  Rep.  135;  Speers  v. 
Flack,  34  Mo.  101,  84  Am.  Dec.  74; 
New  York  Dyeing  &  Print.  Estab- 
lishment V.  DeWestenberg,  46  Hun 
(N.  Y.)  281;  Wh'tlock  v.  Duffield,  2 
DickerRon,  21  Tenn.  (2  Humph.) 
126;  An<ierson  v.  Ammonett,  77 
Tenn.  (9  Lea)  1;  Hite  v.  Parks,  2 
Tcnn.  Ch.  373;  Phillips  v.  Reynolds, 
20  Wash.  374,  55  Pac.  316,  72  Am. 
St.  Rep.  107. 

A  sale  of  the  improvements  by 
the  lessee  to  the  lessor  subsequent 
to  the  making  of  the  lease  has  been 
held  not  to  give  the  lessee  a  vendor's 
lien  on  the  premises  for  the  price 
of  the  improvements.  Mitchell  v. 
Printup,  48  Ga.  455. 

Where  the  tenant  made  improve- 
ments under  an  agreement  that  they 
should  operate  as  a  payment  of 
rent  in  advance,  it  was  held  that  he 


had  no  lien  for  their  value  on  his 
wrongful  eviction  by  the  lessor. 
Beck  V.  Birdsall.  19  Kan.  550.  But 
in  Brockway  v.  Thomas,  36  Ark.  18, 
it  was  held  that  a  tenant  under  an 
invalid  oral  lease  who  so  makes  im- 
provements in  payment  of  rent,  can- 
not be  expelled  without  being  com- 
pensated for  the  improvements. 

1311  "The  principle  upon  which  re- 
lief is  given  In  such  cases  seems  to 
be  this,  that  Inasmuch  as  a  valuable 
addition  is  made  to  the  estate  of  the 
lessor,  by  his  authority  and  under 
his  promise  that  he  will  make  com- 
pensation therefor  (which  addition 
must,  by  force  of  law.  pass  to  the 
lessor  on  the  expiration  of  the  term), 
it  is  just  that  the  sum  he  has  stip- 
ulated to  pay  should  be  regarded  as 
the  purchase  money  of  the  addition, 
and  that  the  lessee  should  have  a 
lien  on  the  demised  premises  there- 
for, similar  to  that  which  the  vendor 
of  land  has  for  unpaid  purchase 
money.  Van  Fleet,  V.  C.  In  Spiel- 
mann  v.  Kliest,  36  N.  J.  Eq.  199. 
The  assumption,  however,  in  the 
statement  quoted,  that  the  improve- 
ment must  necessarily  pass  to  the 
lessor.  Is  unfounded,  as  it  may  con- 
sist of  a  fixture  removable  by  the 
tenant.     See  ante,  §  240. 

131  Swift  V.  Sheehy,  88  Fed.  924. 


o  271  LIEN.  .  171S 

capacity,  the  claim  for  the  value  of  the  improvements  was  re- 
garded as  a  lien  on  the  premises  leased,  these  being  a  part  of  the 
trust  fund,  and  there  being  no  liability  enforcible  at  law.^^s  An 
agreement  by  the  landlord  that,  in  view  of  his  inability  to  pay 
for  improvements,  as  agreed,  the  tenant  sliould  collect  the  rents 
on  the  premises  in  his  own  interest,  was  held  to  be  in  eft'ect  an  as- 
signment of  the  rents  and  profits  as  security,  creating  an  equitable 
lien  on  the  premises  for  the  value  of  the  improvements.i33 

Conceding  the  existence  of  the  lien,  the  record  of  the  instru- 
ment of  lease,  expressly  providing  for  payment  for  improvements, 
has  been  regarded  as  notice  of  the  lien  as  against  a  purchaser 
from  the  lessor.^^^ 

132  Fowler  v.  Mutual  Life  Ins.  Co.,  of  rents  and  profits  due.  injuries  to 
28  Hun  (N  Y.)  195.  See  Robinson  the  building,  and  repairs  thereto. 
V.  Ketteltas,  4  Edw.  Ch.  (N.  Y.)  67.  see   Allen   v.   Gates.   74   Vt.   376,   5^ 

133  Allen  V.    Gates,  73  Vt.   222,   50  Atl.  963. 

Atl.   1092.     For   a   subsequent    deci-        i;i  Spielmann  v.  Kliest,   36   N.  J. 
sion,    upon    an    accounting    between    Eq.    199. 
the  parties,  determining  the  amount 


ill.  and  Ten.  108. 


CHAPTER  XXVIII. 

SUMMARY  PROCEEDINGS. 

272.  General  considerations. 

273.  By  and  against  whom  proceedings  maintainable. 

a.  By  landlord  against  tenant. 

(1)  Necessity  of  relation  of  tenancy. 

(2)  Character  of  tenancy. 

(3)  Validity  of  lease. 

b.  By  person  entitled  to  possession. 

c.  By  licensor  against  licensee. 

d.  By  vendor  against  purchaser. 

e.  By  grantee   against  grantor 

t.  By  mortgagee  against  mortgagor. 

g.  By  foreclosure  purchaser  against  mortgagor. 

h.  By  joint  lessor  or  lessors. 

i.  By  personal  representative. 

J.  By  guardian. 

k.  By  receiver. 

1.  By  agent  or  attorney. 

m.  Effect  of  transfer  of  reversion. 

n.  Effect  of  subsequent  lease. 

o.    Against  persons   claiming  under   lessee — Assignees   and   sub- 
tenants. 

p.     Against  corporation. 

S74.     Grounds  for  proceeding. 

a.  Holding  over  by  tenant. 

(1)  After  expiration  of  tenancy. 

(2)  After  surrender. 

(3)  Notice  to  quit  as  prerequisite. 

(a)  Distinguished  from  notice  terminating  ten- 

ancy. 

(b)  Statutory  requirements. 

(c)  Time  and  length  of  notice. 

(d)  Form  of  notice. 

(e)  Person  to  give  notice. 

(f)  Service  of  notice. 

(g)  Waiver  of  notice. 

b.  Breach  of  condition. 


SUMMARY  PROCEEDINGS.  1715 

C.     Illegal  use  of  premises. 
d.     Nonpayment  of  rent. 

(1)  Statutory  provisions. 

(2)  Applicability  of  the  statutes. 

(3)  Demand  for  rent  as  prerequisite. 

(4)  Notice  to  quit  as  prerequisite. 

(a)  Statutory  provisions. 

(b)  Form  of  notice. 

(c)  Person  to  give  notice. 

(d)  Waiver  of  requirement. 

(e)  Service  of  notice. 

(f)  Waiver  of  notice  given. 

(5)  Counterclaim  as  defense. 

(6)  Waiver  of  right  to  maintain  proceeding. 

(7)  Payment  or  tender  of  rent— Redemption. 

e.  Breach  of  express  stipulation  other  than  for  rent. 

f.  Assignment  or  subletting. 

g.  Bankruptcy. 

275.  Statutes  of  limitation. 

276.  Equitable  defenses. 

277.  Title  to  premises. 

278.  Complaint,  petition  or  affidavit. 

a.  General  considerations. 

b.  Showing  as  to  tenancy. 

c.  Interest  of  petitioner. 

d.  Defendant's  possession. 

e.  Petitioner's  agency  for  landlord. 

f.  Designation  of  subtenants. 

g.  Description  of  premises. 

h.     Previous  demand  or  notice. 
1.     Right  to  possession. 
j.     Nonpayment  of  rent, 
k.     Amendment. 

279.  Answer  or  plea. 

280.  Summons  and  return. 

281.  Adjournment  of  the  proceeding. 

282.  Findings  of  fact. 

283.  Judgment  or  order. 

a.  In  default  of  appearance. 

b.  For  rent  or  damages. 

284.  Appeal  and  certiorari. 

285.  Warrant  of  dispossession. 

286.  Conclusiveness  of  judgment. 

287.  Effect  of  proceeding  as  terminating  tenancy. 

288.  Injunction  against  proceeding. 

289.  Liability  for  wrongful  institution  of  proceeding. 


171G  SUMMARY  PROCEEDINGS.  §272 

§  272.     General  considerations. 

In  most  jurisdictions  there  are  statutes  providing  that  a  lessor, 
or  his  successor  in  interest,  may,  as  aji:ainst  a  person  who  entered 
on  the  land  as  his  tenant,  or  as  against  one  claiming  under  such 
person,  recover  the  possession  of  the  premises  by  a  proceeding 
of  a  summary  character,  without  the  necessity  of  bringing  an 
action  of  ejectment.  The  proceedings  authorized  by  these  stat- 
utes may  be  conveniently  referred  to  as  "summary  proceedings." 
By  some  of  the  statutes  they  are  so  designated,^  while  a  number 
of  the  statutes  give  them  no  specific  desiirnation-^  In  perhaps 
a  majority  of  the  states  the  statutory  provisions  authorizing  pro- 
ceedings of  this  character  by  a  landlord  against  his  tenant  are 
found  in  connection  with  provisions  authorizing  summary  pro- 
ceedings to  recover  land  by  one  who  has  been  forcibly  expelled 
or  excluded  therefrom  by  a  stranger,  they  both  being  under  the 
head  of  "forcible  entry  and  detainer, "^  the  tenant's  retention  of 

1  See  California  Code  Civ.  Proc.  &  Tenant."  §  25;  .SToufTi  Ccrohna  Civ. 
pt.  3,  c.  4;  Connecticut  Gen.  St.  1902,  Code  1902,  §  2423;  Vermont,  Pub. 
c.    76    (Summary    process);    Massa-  St.  1906,  §  1870. 

chtisetts    Rev.    Laws    1902,    c.     181       s  See   Alabama   Code    1907,   c.   89; 

(Summary    process);     Michigan,    3  Arlcansas,    Kirby's    Dig.    St.    1904,   c. 

Comp.  Laws  1897,  §  11,  164;  Montana  70;    Colorado,   Mills'   Ann.   St.    1891. 

Code  Civ.   Proc.   pt.   3,   tit.   3,   c.   4;  c.  53;   District  of  Columbia  Code,  } 

New  York  Code  Civ.  Proc.  c.  17,  tit.  20;    Idaho   Code   Civ.   Proc.   §   3976; 

2;   North  Carolina  Revisal  1905,     c.  Illinois,  Hurd's  Rev.  St.  1905,  c.  57; 

46,   subd.    5    (Summary  ejectment);  Iowa  Code  1897,  tit.  21,  c.  3;  Kansas 

Virfifinia  Code  1904,  c.  123  (Summary  Gen.   St.   1905,   c.   81,   art.    13;    A'en- 

remedy      for     unlawful      detainer);  lucky  Civ.  Code  Prac.  tit.  10,  c.  8; 

West     Virginia     Code     1906,     c.     89  Maine  Rev.  St.  1903,  c.  96;  Minnesota 

(Summary  remedy  for  unlawful  de-  Rev.    Laws    1905,    c.    76;    Nebraska 

tainer).  Code  Civ.  Proc.  tit.  30,  c.  10;   North 

2  See  Artsrono  Rev.  St.  1901,  §  2693;  Dakota,  Justices'  Code,  c.  3,  art.  6; 
Florida  Gen.  St.  1906,  §  2227;  Ohio  Rev.  St.  1906,  pt.  3,  tit.  3,  c.  9; 
Georgia  Code  1895,  §  4813;  Indiana,  Oklahoma  Rev.  St.  1903,  c.  67,  art. 
Burns'  Ann.  St.  1901,  §  7106;  Mary-  13;  Oregon,  Bell.  &  C.  Codes,  tit.  43. 
land  Pub.  Gen.  Laws  1904,  art.  53,  §  c.  18;  South  Dakota,  Justices'  Code, 
1;  Mississippi  Code  1906,  §  2885;  art.  5;  Tennessee,  Shannon's  Code 
Missouri  Rev.  St.  1899,  §  4131;  Nev-  1896,  pt.  3,  tit.  2.  c.  4;  Texas  Rev, 
ada  Comp.  Laws  1900,  §  3841;  New  St.  1895,  tit.  49;  Utah  Code  Civ.  Proc. 
Hampshire  Rev.  St.  1901,  c.  246,  §  c.  64;  V^ashington,  Ball.  Ann.  Codes 
7;  New  Jersey,  2  Gen.  St.  p.  1918,  §  &  St.  tit.  31,  c.  2;  Wisconsin  Rev. 
12;  p.  1922,  §  30;  Pennsylvania.  Pep-  St.  1898,  c.  145;  Wyoming  Rev.  St. 
per  &  Lewis'  Dig.  Laws,  "Landlord  Div.  3,  tit.  11,  c.  19. 


§  272  GENERAi^  CONSIDERATIONS.  1717 

possession  being  frequently  stated  to  constitute  "unlawful  de- 
tainer."-* Any  difference,  however,  in  the  titles  applied  to  pro- 
ceedings of  this  character  has  no  relation  to  any  difference  in  the 
proceedings  themselves. 

Even  though  the  proceeding  is  known  as  one  of  "forcible  de- 
tainer" in  the  particular  jurisdiction,  the  wrongful  holding  need 
not  be  by  force,  it  is  said,  in  order  to  sustain  the  proceeding,^  or, 
as  the  same  idea  is  otherwise  expressed,  the  tenant  is  regarded 
as  holding  by  constructive  force.^  Were  actual  force,  other  than 
that  involved  in  the  mere  phj'-sical  retention  of  possession,  re- 
garded as  a  prerequisite  to  the  proceeding,  it  would  never  lie,  it 
is  evident,  unless  the  person  entitled  had  endeavored  to  take  pos- 
session and  had  been  forcibly  resisted.  So  far  as  it  might,  in  any 
jurisdiction,  be  regarded  as  essential  to  a  proceeding  of  unlawful 
detainer  that  the  plaintiff"  shall  show  a  prior  possession,  this  re- 
quirement, it  is  said,  is  satislied  by  the  prior  possession  of  the 
tenant  under  the  lease,  this  being  legally  the  possession  of  his 
landlord,''' 

Statutes  conferring  a  remedy  of  this  character,  it  has  been  said, 
are  to  be  construed  liberally,  as  being  remedial  in  character.^  On 
the  other  hand,  it  has  been  said  that  the  proceedings,  being  purely 
statutory,  are  to  be  conducted  in  strict  accordance  with  the  law.^ 

The  statutes  providing  for  summary  proceedings  by  the  land- 
lord to  recover  possession  of  the  premises  do  not  preclude  him 

*See  Alatama  Code  1907,  §  4263;  e  Hislop  v.  Moldenhauer,  21  Or.  208, 

Arkansas,   Kirby's    Dig.   St.    §    3G30;  27  Pac.   1052;    Trousdale  v.   Darnell, 

California  Code   Civ.   Proc.   §   1161;  14  Tenn.   (6  Yerg.)   431. 

Colorado,    Mills'    Ann.    St.    1891,    §  "  Nicrosi  v.  Phillipi,  91  Ala.  299,  8 

1973;   Idaho  Code  Civ.   Proc.  1901,  §  So.  561. 

3976;  A^ew  Af exico  Comp.  Laws  1897,  s  Lynde   v.    Noble,    20    Johns.    (N. 

§  3345;    Tennessee,  Shannon's  Code,  Y.)  80;  Birdsall  v.  Phillips,  17  Wend. 

§    5093;    Utah   Comp.    Laws    1908,    §  (N.  Y.)    4C4. 

3575;    Virginia    Code    1904,    §    2716;  » Miner   v.    Barling,   32    Barb.    (N. 

West  Tirpinia  Code  1906,  c.  89,  §  1;  Y.)    540;    Farrington  v.   Morgan,   20 

1898,  §  3538;  Washington,  Ball.  Ann.  Wend.  (N.  Y.)  207,  32  Am.  Dec.  530-; 

Codes  &  St.  1897,  §  5527;  Wisconsin  McMulIin  v.  McCreary,  54  Pa.  230,  93 

Rev.  St.  1898,  §  3358.  Am.   Dec.   697;    Davis  v.   Davis,   115 

5  Mason  v.  Finch,  2  111.  (1  Scam.)  Pa.  261,  7  Atl.  746;  Burns  v.  Nash,  23 

495;   Wheeler  v.  Reitz,  92   Ind.   379;  111.  App.  552;   French  v.  Wilier,  12') 

Gluck  V.  Elkan,  36  Minn.  80,  30  N.  111.  611,  18  N.  E.  811,  2  L.  R.  A.  71T, 

W.   446.  9  Am.  St.  Rep.  651. 


1718  SUMMARY  PROCEEDINGS.  §  273 

from  adopting  for  this  purpose  the  action  of  ejectment  or  the 
statutory  form  of  action  corresponding  thereto.^*^ 

It  has  been  held  that  a  wharf  or  pier,  reclaimed  from  tidewater 
by  an  embankment  or  by  rai.sing  the  bottom  with  stone  or  earth, 
was  a  "tenement"  within  a  statute  authorizing  the  proceeding.i^ 

That  personal  chattels  were  included  in  the  lease  does  not  af- 
fect the  landlord's  right  to  maintain  a  summary  proceeding  to 
recover  the  land.^^ 

A  statutory  provision  that,  in  all  actions  before  a  justice,  each 
party  shall  bring  forward  all  demands  which  may  be  considered, 
provided  that,  after  consolidation,  they  do  not  exceed  a  sum 
named,  has  been  held  to  have  no  application  to  summary  proceed- 
ings, and  hence  not  to  preclude  two  simultaneous  proceedings  by 
the  same  landlord  against  the  same  tenant  to  obtain  possession 
of  distinct  tracts. ^^ 

§  273.     By  and  against  whom  proceedings  maintainable. 

a.  By  landlord  against  tenant — (1)  Necessity  of  relation  of 
tenancy.  It  has  been  frequently  stated  that  the  relation  of  land- 
lord and  tenant  must  exist  between  the  parties  to  the  proceed- 
ing.^'*   This  statement  should,  however,  it  seems,  be  taken  subject 

10  See  Juneman  v.  Franklin,  67  (Ind.)  222;  Blair  v.  Porter,  12  Ind. 
Tex.  411,  3  S.  W.  562.  App.  296.  38  N.  B.  874,  40  N.  E.  81; 

11  People  V.  Kelsey,  14  Abb.  Pr.  Colored  Homestead  &  Bldg.  Ass'n  v. 
(N.  Y.)    372.  38  Barb.  209.  Harvey.   23    Ky.    Law   Rep.    1009,   64 

i^Swigley  v.  Jones,  1  City  Ct.  R.  S.  W.  676;  Powers  v.  Sutherland,  62 
(N.  Y.)  127;  Armstrong  v.  Cum-  Ky.  (1  Duv.)  151;  Goldsberry  v. 
mlngs,  58  How.  Pr.  (N.  Y.)  331,  20  Bishop,  63  Ky.  (2  Duv.)  143;  Stock- 
Hun.  313.  bridge  v.  Nute,  20  N.  H.  271;   Gray 

13  Schumann  Piano  Co.  v.  Mark,  v.  Reynolds,  67  N.  J.  Law,  169.  50 
208  111.  282,  70  N.  E.  226.  Atl.  670;    Schreiber  v.  Goldsmith.  35 

14  Willis  V.  Eastern  Trust  Co.,  169  Misc.  45.  70  N.  Y.  Supp.  236;  Dodln 
U.  S.  295,  42  Law.  Ed.  752;  McCauley  v.  Dodin,  32  Misc.  208,  65  N.  Y.  Supp. 
V.  Hazlewood,  8  C.  C.  A.  330,  59  Fed.  851;  Hughes  v.  Mason,  84  N.  C.  472; 
877;  Bradley  v.  Hume,  18  Ark.  284;  Steel  v.  Thompson,  3  Pen.  &  W. 
Mason  v  Delancey,  44  Ark.  444;  Pico  (Pa.)  34;  Gies  v.  Storz  Brew.  Co., 
V.  Cuyas,  48  Cal.  639;  Walls  v.  Pres-  75  Neb.  698,  106  N.  W.  775;  Seattle 
ton,  28  Cal.  224;  Keller  v.  Klo3er,  Operating  Co.  v.  Cavanaugh,  6  Wash. 
3  Colo.  132;  Jennings  v.  Webb,  20  325,  33  Pac.  356;  Hunter  v.  Maanum, 
D.  C.  317;  Allread  v.  Harris,  75  Ga.  78  Wis.  656,  48  N.  W.  51,  23  Am.  St. 
687:  Watson  v.  Toliver,  103  Ga.  123,  Rep.   443. 

29  S.  E.  614;  Hovey  v.  Blanchard,  13  The  occasional  statement,  or  stat- 
N.  H.  145;  Avery  v.  Smith,  8  Blackf.    utory  provision,  that  the  proceeding 


§  273  BY  AND  AGAINST  WHOM  MAINTAINABLE.  1719 

to  some  qualification.  In  the  first  place,  the  question  whether  a 
summary  proceeding  can  be  brought  by  one  who  does  not  stand 
in  the  relation  of  landlord  to  the  person  in  possession  of  the  land, 
in  order  to  recover  possession  thereof,  depends  entirely  upon  the 
provisions  of  the  statute.  In  many,  perhaps  in  most,  of  the  states, 
a  summary  proceeding,  similar  to  tliat  maintainable  against  a 
tenant  by  his  landlord,  will  lie  in  favor  of  one  who  has  been  for- 
cibly deprived  by  a  stranger  of  the  possession  of  land,  this  being 
what  is  ordinarily  known  as  a  proceeding  of  "forcible  entry  and 
detainer,"  and  in  some  states,  by  express  provision  of  statute, 
such  a  proceeding  will  lie,  under  special  circumstances,  even  in 
the  absence  of  force,  in  favor  of  the  owner  of  land  against  one 
who  entered  otherwise  than  as  tenant. ^^  The  statement  referred 
to,  indeed,  would  seem  to  amount  to  little  more  than  an  assertion 
that  a  statutory  provision  which,  by  express  language  or  by  in- 
ference, authorizes  a  summary  proceeding  by  a  landlord  against 
his  tenant,  does  not  authorize  such  a  proceeding  when  that  rela- 
tion is  nonexistent.  A  question  obviously  might  arise  as  to 
whether  a  particular  clause  of  the  statute  is  to  be  construed  as 
authorizing  the  proceeding  by  a  landlord  only,  but  somewhat 
singularly,  in  making  this  statement,  the  courts  do  not  ordinarily 
discuss  the  specific  language  of  the  statute,  but  assert  this  rather 
as  a  principle  underlying  all  proceedings  of  this  character. 

The  statutes  specifically  authorizing  such  a  proceeding  against 
a  tenant  under  a  lease  do  not  always,  on  their  face,  bear  out  the 
statement  that  the  relation  of  landlord  and  tenant  must  exist.^^ 
While  those  of  a  number  of  states  refer  to  the  right  of  the  ''lessor" 
or  "landlord"  to  maintain  the  proceeding  against  a  "tenant, "^'^ 

lies  only  in  case  there  is  a  lease,  is,  foreclosure.     See      Illinois,      Kurd's 

it  is  obvious,   equivalent  merely  to  Rev.  St.  1905,  c.  57,  §  2;  Iowa  Code 

the   statement   that  the   relation   of  1897,   §   4208;    New   York  Code  Civ. 

landlord   and   tenant  must  exist,  or  Proc.  §  2232;   Ohio  Rev.  St.  1906,  § 

must  have  existed,  between  the  par-  6600. 

ties.     See   Edmondson   v.   White,   19       le  It  is  occasionally  stated  that  un- 

Ga.  534;  Wheeler  v.  Wheeler,  77  Vt.  der  a  particular  statute  the  relation 

177,  59  Atl.  842.  is  not  necessary.     See  Hightower  v. 

15  As  when  it  is  authorized  against  Fitzpatrick's     Heirs,    42    Ala.     497; 

one  who  enters  under  a  contract  of  Hanna  v.  Countryman,  5  Ind.  272. 
purchase   and    holds   over   after    de-       it  See    Arizona    Rev.    St.    1901,    § 

fault,  or  against  one  retaining  pos-  2693;    Connecticut    Gen.    St.    1902,    § 

session  after  a  sale  at  execution  or  1078    ("Lessor  or  owner");   District 


1720  SUMMARY  PROCEEDINGS.  §  273 

others,  while  in  terms  making  a  "tenant"  or  "lessee"  subject  to 
the  proceeding,  do  not  specifically  state  that  the  lessor  or  land- 
lord is  the  proper  person  to  maintain  the  proceeding,^*'  it  being 
perhaps  open  to  inference  in  such  case  that  the  proper  person  to 
maintain  the  proceeding  is  the  person  entitled  to  possession,  as 
in  the  ordinary  case  of  a  forcible  entry  or  det-ainer.^^  Occa- 
sionally the  statute  expressly  names  the  person  entitled  to  pos- 
session as  the  one  to  maintain  the  proceeding  against  a  tenant.^o 
Even  conceding  that  one  entitled  to  land  which  another  wrong- 
fully withholds  from  him  is  properly  to  be  regarded  as  the  land- 
lord of  the  latter,  if  the  latter 's  original  entry  was  rightful  and 
as  tenant,2i  it  is  to  be  observed  that  in  a  number  of  cases  a  right 

of    Columbia    Code    1901.    §    12:j5;  es'  Code,  §  44;  Tennessee,  Shannon's 

Georgia   Code    1895,    §    4813    ("Own-  Code  1896.  §  5093;  Washington,  Ball, 

er");  Indiana.  Burns'  Ann.  St.  1901,  Ann.  Codes  &  St.  1897,  §  5527;   Wis- 

§    7106;    Maryland   Pub.   Gen.   Laws  consin  Rev.  St.  1898,  §  3358;   Wyom- 

1904,  art.  53,  §   1:   Mississippi  Code  ing  Rev.  St.  1899,  §  4486. 
1906,  §§  2557,  2558;  Missouri  Rev.  St.       lo  But   the  statutes   of  California, 

1899,   §§   4116,   4131;    Nevada  Comp.  Colorado,  Florida.  Montana,  and  Wis- 

Laws  1900,  §  3825;   Neio  Hampshire  consin.  in  providing  for  the  proceed- 

Pub.  St.  1901,  c.  246,  §  7  ("Owner  or  ing   in    case    the   tenant   holds    over 

lessor");  New  Jersey,  2  Gen.  St.  pp.  "without     the     permission     of     the 

1916,   1918,   §§   7,   8,   12;    New  York  landlord,"    raise    perhaps    a    strong 

Code  Civ.  Proc.  §  2235;   North  Car-  Inference    that   the   landlord    Is    the 

olina  Revisal  1905,  §  2002;  Pennsyl-  one  to  maintain   the  proceeding. 
rania,   Pepper  &  Lewis'   Dig.   Laws,       20  See  Alabama  Code  1907,  §  4263; 

"^'Landlord  &  Tenant,"  §§  25,  28.  34;  Arkansas,    Kirby's    Dig.    St.    1904,    § 

Soiith   Carolina   Civ.   Code   1902,   §§  3630;   Illinois,  Hurds'  Rev.  St.  1905, 

2421-2423;   Utah  Comp.  Laws  1907,  §  c  57,  §  2;   Kentucky  Civ.  Code  Prac. 

3575;    Virginia  Code   1904,    §§    2719,  §   454    (Person   aggrieved");    Massa- 

2786.  chusetts   Rev.   Laws   1902,   c.   181,   § 

18  See   California   Code   Civ.   Proc.  1;     Michigan     Comp.     Laws     1897, 

§    1161;     Colorado,    Mills'    Ann.    St.  §  11,164;  Minnesota  Rev.  Laws  1905, 

1891,  §   1793;    Florida  Gen.  St.  1906,  §  4038;  Texas  Rev.  St.  1895,  art.  2519 

§  2227;  Idaho  Code  Civ.  Proc.  §  3976;  ("Party  aggrieved")  ;    Vermont  Pub. 

lotca    Code    1897,    §    4208;     Kansas  St.  1906,  §  1870;  Virginia  Code  1904, 

Gen.  St.  1905,  §  5841;  Montana  Rev.  §  2716;   West  Virginia  Code  1906,  § 

Codes  1907,  §  7271;  Nebraska  Comp.  3382. 

St.  1905,  §  7525;  Neic  Mexico  Comp.       21  That  he  is  not,  see  ante,  §  15  c. 

Laws    1897,    §    3345;    North    Dakota  at  notes  568-574.     "The  action  must 

Rev.  Codes  1905,  §   8406:    Ohio  Rev.  be   based   on    the   conventional    rela- 

St.  1906.  §  6600;  Oklahoma  Rev.  St.  tion  of  landlord  and  tenant,  not  that 

1903,    §    5087;     Oregon,    Bell.    &    C.  it    must    exist    when    the    action    is 

Cedes,  §  5755;  South  Dakota,  Justic-  brought,  for  in  the  case  of  holding 


",  273  BY  AND  AGAINST  WHOM  MAINTAINABLE.  iT'Zi 

of  recovery  in  summary  proceedings  against  one  who  was  not  a 
tenant  of  the  person  bringing  the  proceeding  has  been  recognized, 
thou-h  without  any  suggestion  that  this  involves  an  exception 
to  a  general  rule  that  the  relation  of  landlord  and  tenant  is  neces- 
sary. In  the  case,  hereafter  referred  to,^^  of  a  proceeding  by  one 
who  is  entitled  to  possession,  as  having  a  lease  to  take  effect  m 
possession  upon  the  expiration  of  a  previous  lease,  against  one 
holding  under  the  previous  lease,  the  second  lessee  is  clearly  not 
the  landlord  of  the  first  lessee,  but  he  has  a  mere  interesse  ter- 
mini.^^  In  the  case  likewise  of  a  proceeding  by  a  landlord  to  re- 
cover possession  from  one  claiming  under  his  tenant,  a  subten- 
ant,24  the  relation  of  landlord  and  tenant  does  not  exist  between 

the  parties. 

There  are  some  other  cases  in  which  a  right  to  maintain  a  pro- 
ceeding under  the  statute  giving  the  right  to  a  landlord  has  been 
recognized,  although,  it  would  seem,  the   plaintiff  was   not   the 
landlord  of  the  defendant,  or  indeed  of  any  person.     In  one  case, 
for  instance,  it  was  held  that  a  mortgagee  was  entitled  to  main- 
tain the  proceeding  against  one  who  entered  as  tenant  under  a 
lease  made   after  the  mortgage,^^   and  in  others  such   a  right 
was  recognized  in  a  purchaser  at  a  sale  under  a  mortgage  or 
deed  of  trust,  as  against  one  who  entered  under  such  a  subsequent 
lease.2«     While  a  purchaser  at  a  sale,  under  a  mortgage  or  other 
lien,  subsequent  to  the  lease,  evidently  becomes  the  landlord  in 
plaJe  of  the  former  owner,  to  the  same  extent  as  if  a  voluntary 
conveyance  had  been  made  to  him,^^  it  is  difficult  to  see  how  one 
claiming  under  a  mortgage  or  other  lien  prior  to  the  lease  can 
be  regarded  as  in  any  sense  the  landlord  of  the  lessee.     He  enters 
under  a  title  paramount  to  that  of  the  lessor,  and  is,  as  regards 
the  lessee,  in  the  same  position  as  if  he  had  received  an  absolute 

over  it  has  ceased  to  exist  by  the  26  ish  v.  Morgan.  48  Ark.  413,  3  S. 
termination  of  the  tenancy,  but  It  W.  440;  Green  v.  Missouri  Pac.  R. 
must  have  existed."  Gilfillan,  C.  J.,  Co.,  82  Mo.  653;  Stewart  v.  Miles,  Ififi 
in  Judd  V.  Arnold,  31  Minn.  430,  18  Mo.  174,  65  S.  W.  754;  Waples  v. 
j^    W    151  Jones,  62  Mo.  440. 

'22  See  post,  at  notes  115-117.  27  See  ante.  §  146  e.     In   Allen  v. 

23Seeante.  §37.  Shannon,    74    Ind.    164.    where    the 

24  See  post   §  273    o,  and  also  quo-   right  of  the  purchaser  to  maintain 
tation  ante,  note  21.  the   proceeding  was   recognized,   the 

25  Goodnow  V.  Pope,  31  Misc.  475.    mortgage  wa&  apparently  thus  sub- 
64  N.  Y.  Supp.  394.  sequent  to  the  lease. 


1722  SUMMARY  PROCEEDINGS.  §  273 

conveyance  at  the  time  at  which  his  lien  was  created.^s  The 
cases  above  referred  to  may  accordingly  be  regarded  as  adjudi- 
cations not  in  accord  with  the  statement  that  the  proceeding 
must  be  instituted  by  one  in  the  relation  of  landlord  to  the  de- 
fendant.29-31 

In  two  cases  it  has  been  decided  that  a  statute  giving  the  per- 
son entitled  to  **the  reversion  or  remainder"  the  right  to  main- 
tain the  proceeding  authorized  a  proceeding  by  a  remainderman 
against  one  holding  under  a  lease  made  by  the  life  tenant,  since 
deceased.32  Jq  such  a  case  there  is  no  relation  of  landlord  and 
tenant. 

(2)  Character  of  tenancy.  The  character  of  the  tenancy  un- 
der which  the  defendant  to  the  proceeding  holds  is,  usually  at 
least,  immaterial.  The  statutes  ordinarily  use  language  applica- 
ble to  any  class  of  tenancy,  as  when  they  authorize  proceedings 
against  a  tenant  or  lessce,^^  or  against  a  person  holding  over 
after  the  end  of  his  tenancy.''^  And  sometimes  the  various  chisses 
of   tenancy    are   named."*^      Occasionally    the    statute    expressly 

28  See  ante,  §  73.  Civ.  Code  Proc.  §  451;   Maine  Rev. 

29-31  But  the  decisions  are  based  on  St.  1903,  c.  96,  §  1;  Maryland  Code 
the  theory  that  the  relation  does  Pub.  Gen.  Laws  1904,  art.  53,  §  1; 
exist  in  such  case.  Massachusetts    Rev.    Laws    1902,    c. 

82Stinson  v.  Gosset,  4  Ala.  170;  181,  §  1;  Missouri  Rev.  St.  1899,  §§ 
Peck  V.  Peck,  35  Conn.  390.  But  that  4113,  4116;  Montana  Rev.  Codes 
the  persons  entitled  after  the  expira-  1907,  §  7271;  New  Hampshire  Pub. 
tion  of  an  estate  by  curtesy  cannot  St.  1901,  c.  246,  §  7;  Neio  Mexico 
maintain  the  proceeding  against  a  Comp.  Laws  1897,  §  3345;  Neio 
lessee  of  the  tenant  by  curtesy,  for  York  Code  Civ.  Proc.  §  2231;  North. 
want  of  privity,  see  Wolfe  v.  Ange-  Carolina  Revisal  1905,  §  2001;  North 
vine,  57  Miss.  767;  and  that  a  re-  Dakota  Rev.  Codes  1905,  §  8406; 
mainderman  cannot  maintain  the  Pennsylvania,  Pepper  &  Lewis'  Dig. 
proceeding  against  the  lessee  of  the  Laws,  "Landlord  &  Tenant,"  §  25; 
life  tenant  even  though  the  statute  South  Carolina  Civ.  Code  1902,  § 
authorizes  it  by  the  person  entitled  2421;  Tennessee,  Shannon's  Code 
to  possession,  see  Whitney  v.  Dart,  1896,  §  5093;  Utah  Comp.  Laws  1907, 
117  Mass.  153,  post  note  58.  §  3575;   Virginia  Code  1904,  §  2719; 


^3  Arizona  Rev.  St.  1901,  §  2693 
California  Code  Civ.  Proc.  §  1161 
Idaho  Code  Civ.  Proc.  1901,  §  3976 


Washington,  Ball.  Ann.  Codes  &  St. 

§  5527;   West  Virginia  Code  1906,  § 

3332. 

Illinois,  Hurd's  Rev.  St.  1905,  c.  57,       34  District  of  Columbia  Code  1>901, 
§  2;  Indiana,  Burns'  Ann.  St.  1901,  §    §    20. 

7106;   loioa  Code  1897,  §  4208;   Kan-       ss  Colorado,    Mills'    Ann.    St.    1891. 
sas  Gen.  St.  1905,  §  5841;  Kentucky   §  1973;  Florida  Gen.  St.  1906,  §  2227; 


J  273  BY  AND  AGAINST  WHOM  MAINTAINABLE.  1723 

names  a  "tenant  at  will"  as  a  proper  subject  for  the  proceed- 
ing,36  but  on  the  other  hand  some  statutes  use  language  not  well 
ad°a'pted  to  the  case  of  a  tenancy  at  will,  in  providing  that  the 
proceeding  may  be  maintained  against  a  tenant  holding  over 
after  the  time  or  the  term  for  which  the  premises  were  let,37  or 
when  the  lease  terminates  by  lapse  of  timers  or  by  its  own  stipu- 

1  RtlOHS  ^ 

The  statutes  occasionally  provide  for  the  maintenance  of  the 
proceeding  against  a  "tenant  at  sufferance. "^^  Since  a  tenant 
at  sufferance  is  ordinarily^i  a  tenant  for  years  or  at  will  wrong- 
fully holding  over,  such  a  provision  would  seem  to  be  approxi- 
mately included  in  the  provisions  for  the  maintenance  of  the  pro- 
ceeding against  tenants  holding  over. 

A  few  of  the  statutes  make  specific  provision  for  the  mainte- 
nance  of  the  proceeding  against  a  periodic  tenant,^!"^  and  when 
the  proceeding  is  authorized  against  a  tenant  or  lessee  without 
reference  to  a  particular  character  of  tenancy,  a  periodic  tenant 
is  evidently  within  the  terms  of  the  statute.  When,  however, 
several  classes  of  tenancies  are  named,  without  naming  a  periodic 
tenancv,  a  question  might  arise  as  to  whether  such  a  tenancy  is 
to  be  regarded  as  within  the  scope  of  the  statute.     It  has  been 

Mississippi  Code  1906.  §  2885;   New   Rev.    St.    1903,   §    5087;    Texas  Rev. 
Jersey  2  Gen.  St.  p.  1922,  §  30;  Penn-   St.   1895,  art.   2519;    Wyoming  Rev. 
svJvania,  Pepper  &  Lewis'  Dig.  Laws,  St.   1899.   §   4486. 
"Landlord  &  Tenant."  §  34;  Wtscon-       ss  Connecticut     Gen.    St.    1902.     § 
sin  Rev.  St.  1898,  §  3358.  1078. 

z<^  California    Code     Civ.    Proc.    §       39  Vermont  Pub.  St.  §  1870. 
1161-  Colorado,  Mills'  Ann.  St.  1891,       ^o  Colorado,   Mill's   Ann.   St.    1891. 
8  1973-  Kentnclcy  Civ.  Code  Proc.  §    §    1973;    Florida    Gen.    St.    1906.    §§ 
451;    Minnesota   Rev.    Laws   1905,   §   2227.    1751;     Georgia    Code    1895 
4038;  Pennsylvania,  Pepper  &  Lewis'   4813;   MicMgan  Coxnp.  Laws  1897    § 
Die    Laws    "Landlord  &  Tenant,"   §    11164;  Mississippi  Code  19QQ,  %  2SS5 
f',- sZn  Carolina  Civ.  Code  1902.    New  Jersey,  2  Gen    St  1902        3; 
8  94V  TexasReY  St   1895,  art.  2521;    New  York  Code  Civ.   Proc.   §   2231. 
1^1  clp     Laws     1907,    I     3575.    Texas  Rev.  St.  1S95,  art.  2521;  W.. 
And  citations  in  last  note.  consin  Rev.  St^  1898,  §  3358. 

37  Arl^ansas,  Kirby's  Dig.  St.  1904,       "  See  ante.  §  1^  a. 
5   3630-    Georrjia  Code  1895,  §  4813;        ^^^  Maryland  Code  Pub.  Gen.  Laws 
MieMgan  Comp.  Laws  1897.  §  11164;    1904,  art.  53,  §  6;  Utah  Comp    Laws 
Sa   Comp    Laws    1900,    §    3825;     1907,  §  3.575;  W.7H«.^on,  Ball.  Ann. 
Ohio  Rev.  St.  1906,  §  6600;  Oklahoma   Codes  &  St.  §  5o27   (2). 


1724  SUMMARY  PROCEEDINGS.  §  273 

deeiflod  in  one  state  that  a  provision  for  the  maintennncc  of  the 
proceeding  against  a  tenant  at  will  authorizes  it  against  a  tenant 
from  year  to  year,**  and  a  statute  authorizing  the  proceeding 
** where  lands  are  leased  for  one  or  more  years  or  at  will"  has 
been  construed  as  including  a  lease  from  month  to  month  or  for 
a  term  less  than  a  year.'*^ 

A  statute  authorizing  a  proceeding  against  a  tenant  for  one  or 
more  years  has  been  held  to  authorize  it  against  a  tenant  for  a 
term  less  than  a  year.'*'* 

It  is  sufficiently  obvious  that  a  statute  in  terms  applicable 
when  the  relation  of  landlord  and  tenant  exists  is  not  excluded 
by  the  fact  that  the  tenant  holds  under  a  lease  for  life.*'^ 

In  a  number  of  cases  it  is  asserted  that  not  only  must  the  re- 
lation of  landlord  and  tenant  exist,  but  that  it  must  be  the  "con- 
ventional" relation  of  landlord  and  tenant,  that  is,  it  must  be 
created  by  agreement."*®  This  statement  involves  an  assumption 
that  the  relation  may  arise  without  agreement,  "by  operation  of 
law,"  an  assumption  the  correctness  of  which  is,  as  has  been  be- 
fore indicated,  open  to  most  serious  question.*^-  ^^  The  eases  in 
which  this  asserted  rule  has  been  actually  applied  have  usually 
been  cases  in  which  the  parties  were  regarded,  or  might  have 
been  regarded,  as  standing  in  another  relation,  as  that  of  mort- 
gagor and  mortgagee,*^  master  and  servant,^^  or  licensor  and 

42  Prouty  V.  Prouty,  5  How.  Pr.  413,  45  N.  W.  .324,  this  rule  was  as- 
(N.  Y.)  81;  Wright  v.  Mosher,  1*3  serted  and  applied  so  as  to  preclude 
How.  Ft.  (N.  Y.)  454.  In  Park  v.  a  proceeding  against  persons  who 
Castle,  19  How.  Pr.  (N.  Y.)  29,  he  is  had  taken  possession  of  their  son's 
regarded  as  a  tenant  "for  one  or  property  under  an  agreement  that 
more  years,"  and  so  within  the  stat-  they  might  live  there  during  their 
^j^g  lives.     It  is  not  stated  what  the  re- 

43  Miller  v.  Johnson,  6  D.  C.  51.         lation  was,  if  not   that  of  landlord 

44  Miller  v.  Johnson,   6   D.   C.   51;    ^"^  tenant,  and  whatever  it  was,  it 

Shaffer  v.  Sutton,  5  Bin.   (Pa.)   228.   ^^""'^    ^°^°^   ^o    have    been    strictly 

Compare    the    construction    of    the   "conventional."     See,    also,    Maxham 

^     „  ^      .   T.      ^   r.     .  T>^.   in    V-  Stewart,  133  Wis.  525,  113  N.  W. 

English  act.  Doe  d.  Carter  v.  Roe,  10 

Mees.  &  W.   670.  '  47,  4.  See  ante,  §  17. 

45FOSS  v.  Stanton,   76  Vt.   365,  57  40  Steele  v.  Bond,  28  Minn.   267,  9 

■A^t^-  9-*2-  N.    W.    772;     Evertson   v.    Sutton,    5 

4G  Pico  V.  Cuyas,  48  Cal.  639;  Sims  Wend.  (N.  Y.)  281,  21  Am.  Dec.  217; 

V.  Humphrey,  4  Denio   (N.  Y.)   185;  Hunter  v.  Maanum,  78  Y/is.  656,  48 

Judd  V.  Arnold,  31  Minn.  430,  18  N.  N.  W.  51,  23  Am.  St.  Rep.  443. 

W.   151.     In   Buel   v.    Buel,   76   Wis.  so  people   v.   Annis,   45   Barb.    (N. 


§  273  BY  AND  AGAINST  WHOM   MAINTAINABLE.  1725 

lieensee,^^  or  as  standing  in  no  legal  relation  whatever  to  one 
another.^2 

It  has  been  decided  to  be  immaterial  whether  the  tenant  was 
or  was  not  in  possession  before  the  making  of  the  lease.^^  There 
is  evidently  no  reason  why  such  a  consideration  should  be  ma- 
terial. 

(3)  Validity  of  lease.  That  the  lease  was  for  some  reason  in- 
valid or  illegal,  and  so  not  enforcible,  does  not  ordinarily  exclude 
the  summary  proceeding  to  recover  possession-^**  In  one  case, 
however,  where  the  lease  was  invalid  because  made  by  a  married 
woman  without  proper  formalities,  it  was  held  that  she  could  not 
recover  possession  by  such  a  proceeding.'^^  n  would  seem  that, 
however  invalid  the  actual  lease  might  be  in  a  particular  case, 
the  person  purporting  to  enter  thereunder  should,  as  having  en- 
tered by  permission  of  the  lessor,  be  regarded  as  his  tenant,  the 
invalidity  of  the  lease  operating  only  to  preclude  the  tenant  from 

Y.)  304;  Russell  v.  Russell,  32  How.  trespasser,  and  not  a  tenant  of  the 

Pr.  (N.  Y.)  400.  owner  in  any  sense. 

51  Such  was  apparently  the  rela-  ^>^  Willis  v.  Harrell,  118  Ga.  906, 
tion  which  was  under  consideration  45  S.  E.  794. 

in   Matthews   v.   Matthews,   49   Hun,       s*  Toby  v.  Schultz,  51  111.  App.  487 

346,   2  N.   Y.   Supp.   121,   where  the  (lease  for  immoral  purposes);   Bru- 

owner    of   land    had    requested    per-  baker    v.    Poage,    17    Ky.    (1    T.    B. 

sons  to  come  to  live  with   him,  he  Mon.)  123  (oral  lease  within  statute 

to  board   with   them,  and   this   was  of  frauds) ;  Harrison  v.  Marshall,  7 

done.     If  any  tenancy  existed  in  this  Ky.  (4  Bibb)   524  (ditto);  Clarice  v. 

case,  it  was  clearly  "conventional,"  as  Barnes,   76   N.  Y.   301,  32  Am.  Rep. 

being  based  on  agreement.     The  de-  306    (agricultural    lease    for    prohib- 

cision    that    a    summary    proceeding  Ited  period);  Murat  v.  Micand  (Tex, 

will  not  lie  under  such  circumstan-  Civ.  App.)    25   S.  W.  312    (lease  for 

ces  is  followed  in  Schreiber  v.  Gold-  immoral     purposes).     So     the     fact 

smith,  35   Misc.   45,  70  N.  Y.   Supp.  that  the  lessor  was  guilty  of  fraud 

236.  ^^  procuring  the  lessee  to  accept  the 

52  In  Benjamin  v.  Benjamin.  5  N.  ^^^se  was  held  to  be  no  defense. 
Y.  (1  Seld.)  383,  it  was  held  that  Simons  v.  Marshall,  3  G.  Greene 
the  "conventional  relation"  did  not  ^^«^^>   ^^2.     In  Smelling  v.  Valley. 

,          X,                  ,              4.  X  1 ,  103  Mich.  580,  61  N.  W.  878,  the  pro- 
arise  where  the   owner's  agent  told  ^.                '          ,               ,     x  -  ij^^ 
J     .                  .           .^^  ceedmg  was   based   on   the  nonpay- 
a  person  already  m  possession   with-  .      .  j.^           .         ,    .. 

.          ,        ,          .  ment  of  the  rent,  and   it  was  held 

out    permission,    that   he   might   re-  ^^^^  .^  ^^^  ^^  ^^^^^^^  ^^^^  ^^^  ^^^^^ 

main  on  certain  terms,  and  the  lat-  ^^^    jj^^^^^    „^^^^    ^^^    ^^^^^^^^    ^^ 

ter  did  not  accept  the  proposition,  frauds,  the  lessee  having  taken  pos- 

al though  he  remained.     Such  a  per-  session. 

son  would  seem  to  have  been  a  mere  ss  Keller  v.  Klopfer,  3  Colo.  132, 


1726  SUMMARY  PROCEEDINGS.  §  273 

asserting  a  right  to  continue  possession  by  force  thereof,  and  sev- 
eral of  the  decisions  first  above  cited  are  to  this  effect.-'"'^ 

b.  By  pGrson  entitled  to  possession.  As  above  stat^d,"*"^  the 
statute  not  infrequently  provides  that  the  proceeding  shall  be 
instituted  by  the  person  entitled  to  possession.  In  Massachusetts, 
where  the  statute  in  terms  so  provides,  it  has  been  held  that  one 
claiming  under  a  conveyance  by  which  a  life  estate  is  reserved 
to  the  grantor  cannot  recover  against  a  lessee  of  such  life  ten- 
ant, but  that  the  defendant  must  have  entered  under  some  per- 
son with  whom  the  plaintiff  is  in  privity-^^  This  statute  has  also 
been  there  held  not  to  authorize  a  proceeding  by  a  stranger,  claim- 
ing title  paramount  to  that  of  the  lessor,  merely  because  the 
person  in  possession  entered  as  lessce.^^  But  it  does,  it  has  been 
decided,  authorize  a  proceeding  against  a  tenant  at  will  by  one 
to  whom  the  landlord  had  leased  the  premises  for  years  before 
undertaking  to  create  the  tenancy  at  will.''''  It  has  also  been 
stated,  in  that  jurisdiction,  that  when  the  term  of  a  lessee  ex- 
pires, the  proceeding  may  be  maintained  by  the  lessor  against  a 
sublessee  holding  over.^^ 

c.  By  licensor  against  licensee.  A  mere  licensee  of  the  owner, 
it  is  evident,  does  not  enter  under  a  lease,  and  is  not  within  a 
statute  subjecting  a  lessee  or  tenant  to  a  summary  proceeding,^^ 
though  a  licensee  of  a  tenant,  may,  it  seems,  be  subject  to  re- 
moval by  virtue  of  a  proceeding  by  the  landlord,  as  holding  un- 
der the  tenant.'''^  A  servant  also  cannot  be  proceeded  against 
as  a  tenant  by  his  master  in  order  to  efl'ect  his  exclusion  from  the 
premises,^^  and  this  applies  to  one  who  is  in  possession  as  a  mere 

56  Robertson   v.   Birdie,   107  N.  Y.       es  See  post,  at  note  137. 

Supp.  75,  is  perhaps  opposed  to  this  64  McQuade  v.   Emmons,   38  N.    J. 

view.  Law,  397;   Jennings  v.  McCarthy,  16 

57  See    ante,   at  note   20.  n.  Y.  Supp.  161;  Haywood  v.  Miller, 

58  Whitney  v.  Dart,  117  Mass.  153.  3  Hill  (N.  Y.)  90.     But  Morris  Canal 

59  Green  v.  Tourtellott,  65  Mass.  ^.^  ^  Mitchell,  31  N.  J.  Law,  99. 
(11  Cush.)   227.  seems   to  be  contra.     And   the  stat- 

60  Hart  V.  Bouton,  152  Mass.   440,  ^^^   occasionally   provides   expressly 

25  N.  E.  714.  en    TVT  oc    ^or    ^    proceeding    by    an    employer 

61  Howard    v.    Mernam,    59    Mass.  .     ,     ^.  ,  „ 

h  t   fifi^  against    his     employee.       See    New 

62Henrv  v   Perrv,  110  Ga.  630.  36  ^«^^  ^ode  Civ.  Proc.  §  2231:   South 

S.  E.  87;  People  v.  Cushman,  1  Hun  Carolinxi  Civ.  Code  1902,  §  243;   Tir- 

(N.  Y.)   73;  Wheeler  v.  Wheeler,  77  dinia  Code  1904,  §  2716. 
Vt  177,  59  Atl.  842   (semble). 


§  273  BY  AND  AGAINST  WHOM   MAINTAINABLE.  1727 

"  cropper,  "^^  though  if  he  is  actually  a  tenant  the  fact  that  rent 
is  paid  by  a  division  of  the  crops  does  not  exclude  the  proceed- 
ing.^ 

d.  By  vendor  against  purchaser.  The  courts  have  almost  in- 
variably held  that  a  purchaser  of  land,  who  enters  into  possession 
of  the  land  by  permission  of  the  vendor,  before  receiving  a  con- 
veyance of  the  legal  title,  is  not  a  tenant  of  the  vendor,  so  as  to 
authorize  a  summary  proceeding  by  the  latter  to  regain  possession 
upon  default  by  such  purchaser  in  the  performance  of  his  con- 
tract,^'^  and  this  has  been  decided  to  be  so  although  it  is  expressly 
agreed  at  the  time  of  sale  that  the  purchaser  shall  hold  as  tenant 
of  the  vendor,<5s  or  that  he  shall  so  hold  after  default,  with  a  lia- 
bility to  expulsion  by  summary  proceedings.^^     A  different  view 

65Robson  V.  Cofield,  113  Ga.  1153,  Neb.  671,  24  N.  W.  339;  People  v. 
39  S.  E.  472;  Gray  v.  Reynolds,  67  Bigelow,  11  How.  Pr.  (N.  Y.)  84; 
N.  J.  Law,  169,  50  Atl.  670;  Oakley  McCorabs  v.  Wallace,  66  N.  C. 
V.  Schoonmaker,  15  Wend.  (N.  Y.)  481;  Johnson  v.  Hauser,  82  N. 
226.  See  Russell  v.  Russell,  32  How.  C.  375;  Chicago,  B.  &  Q.  R.  Co.  v. 
Pr.  (N.  Y.)  400.  But  in  Wood  v.  Skupa,  16  Neb.  341,  20  N.  W.  393; 
Garrison,  23  Ky.  Law  Rep.  295,  62  Carlisle  v.  Prior,  48  S.  C.  183,  26  S. 
S.  W.  728,  it  is  assumed  that  the  E.  244;  Buel  v.  Buel,  76  Wis.  413,  45 
proceeding  lies  against  a  mere  crop-  N.  W.  324;  Menominee  River  Lum- 
per, ber  Co.  v.  Philbrook,  78  Wis.  142,  47 

G6  Jones  V.  Durrer,  96  Cal.  95,  30  N.  W.  188;  Majham  v.  Stewart,  133 
Pac.  1027   (semble).  Wis.    525,    113   N.    W.    972.     Contra, 

It  was  held  In  Oakley  v.  Schoon-  Dobson  v.  Culpepper,  23  Grat.  (Va.) 
maker,  15  Wend.  (N.  Y.)  226,  that  352.  In  Anderson  v.  Prindle,  23 
the  proceeding  did  not  lie  on  account  Wend.  (N.  Y.)  616,  it  was  held  that 
of  the  nonpayment  of  crop  rent,  one  holding  under  a  contract  for  a 
when  the  statute  authorized  the  pro-  lease  was  liable  to  the  proceeding  as 
ceeding  on  account  of  the  nonpay-  a  tenant  at  will  or  sufferance  upon 
ment  of  rent  only  in  case  of  in-  his  refusal  to  accept  a  lease.  It 
suflacient  goods  to  satisfy  a  dis-  seems  somewhat  difEcult  to  distin- 
tress,  since  such  a  rent  could  not  be  guish  between  the  position  of  one 
collected   by   distress.  in  possession  under  a  contract  for  a 

6T  Mason  v.  Delancy,  44  Ark.  444  f   lease  and  one  in  possession  under  a 
Keller  v.  Klopfer,  3  Colo.  132;  Brown   contract  for  a  conveyance  in  fee. 
V.  Persons,  48  Ga.  60;  Allread  v.  Har-       ss  Davis  v.  Hemenway,  27  Vt.  589; 
ris,   75   Ga.    687;    Griffith   v.   Collins,    Diggle  v.  Boulden,  48  Wis.  477.  4  N. 
116  Ga.  420,  42  S.  E.  743;   Dakin  v.    W.  678,  33  Am.  Rep.  817. 
Allen,  62  Mass.   (8  Cush.)   33;  Lyon       eg  Burkhart    v.    Tucker,    27    Misc. 
V.  Cunningham,  136  Mass.  532;  Kier-   724,  59  N.  Y.  Supp.  711;    Hughes  v. 
nan  v.  Linnehan,  151  Mass.  543,  24    Mason,  84  N.  C.  472. 
N.   E.    907;    Dawson   v.   Dawson,   17 


1728  Summary  proceedings.  §  273 

has,  however,  been  asserted  in  regard  to  the  effect  of  a  provision 
for  a  tenancy  in  case  of  default."*^  It  would  seem  clear  that  the 
parties  may  at  any  time  entirely  terminate  the  relation  of  vendor 
and  purchaser,  and  enter  upon  the  relation  of  landlord  and  ten- 
ant, so  as  to  authorize  the  proceedingJ^ 

The  fact  that  a  lease  contains  an  agreement  looking  to  the  pos- 
sible purchase  of  the  premises  by  the  lessee  does  not  prevent  the 
maintenance  of  a  sr.mmary  proceeding  against  him."^ 

e.  By  grantee  against  grantor.  A  grantor  in  fee  who  is,  by 
agreement,  to  retain  posi5es;s;iou  for  a  specified  time  after  the  con- 
veyance, has  been  regarded  as  a  tenant  of  the  grantee,  and  so 
subject  to  a  summary  proceeding  if  he  retains  possession  beyond 
that  tiraeJ^  A  contrary  view  has,  however,  been  asserted.^' 
One  who  retains  possession,  after  making  a  conveyance,  without 
any  right  thereto,  would  seem  not  to  be  a  tenant  of  the  grantee 
for  any  purpose,^^  nor  in  the  position  of  one  who  has  entered 
under  a  lease,  so  as  to  be  liable  to  a  summary  proceeding  by  the 
granteeJ^*     There  are  decisions,  however,  that  he  is  so  liable,"*^ 

70  ish  V.  Morgan,  48  Ark.  413,  3  S.  over  have  been  held  not  to  authorize 
W.  440;  Patterson  v.  Folmar,  125  it  against  one  who,  after  making  a 
Ala.  130,  28  So.  450:  Raynor  v.  Hag-  lease,  wrongfully  excludes  the  les- 
gard,  18  Mich.  72,  100  Am.  Dec.  146.  see   from    possession.     Goodwlne   v. 

71  It  is  so  decided  in  Riley  v.  Jor-  Barnett,  2  Ind.  App.  16,  28  N.  E.  115; 
dan,  75  N.  C.  180.  But  it  was  held  Knimvpide  v.  Schroeder,  56  Iowa, 
otherwise  where  the  vendee,  after  1'30,  9  N.  W.  107;  Freeborn  v.  La 
default  by  him,  agreed  to  hold  at  a  Londe,  118  Mich.  66,  77  N.  W.  269. 
certain  rent,  the  rent  payments  to  There  appears  to  be  no  more  reason 
be  applied  on  the  purchase  price,  for  regarding  a  grantor  in  fee,  who 
Hughes  V.  Mason,  84  N.  C.  472.  wrongfully  retains  possession,  as  a 
Compare  ante.  §  43  b,  c.  tenant  of  the  grantee,  and  as   such 

72  Norton  v.  Sturla,  83  Cal.  559,  23  subject  to  the  proceeding,  than  for 
Pac.  527;  Middlebury  College  v.  Law-  so  regarding  a  grantor  for  years,  that 
ton,  23  Vt.  688;  Brauchle  v.  Nothhel-  is,  a  lessor. 

fer,  107  Wis.  457,  83  N.  W.  653.  See  One  who  claims  the  present  right 
ante,  §  257.  of    possession    under    a    conveyance 

73  Prichard  v.  Tabor,  104  Ga.  64,  30  from  the  complainant,  by  which 
S.  E.  415.  That  he  is  properly  a  conveyance,  however,  a  life  estate 
tenant  of  the  grantee,  see  ante,  §  44.   was  reserved   in   favor  of  the  com- 

74  Sims  V.  Humphrey,  4  Denio  (N.  plainn.nt,  is  not  subject  to  expulsion 
Y.)    185.  by   such    a   proceeding,    as    being   a 

75  See  ante,  §  44.  tenant   of  the  complainant.     Sharpe 
75a  The      statutes      authorizing     a    v.  Mathews,  123  Ga.  794,  51  S.  E.  706. 

proceeding  against  a  tenant  holding       76  it   is    so   decided    in   Pitkin    v. 


§  273  BY  AND  AGAINST  WHOM  MAINTAINABLE.  1729 

it  being  held  in  one  case  that  he  is  so  liable  as  being  a  tenant  at 
sufferance  of  the  granteeJ''' 

f.  By  raortgag-ee  against  mortgagor.  The  decisions  are  in 
substantial  unison  to  the  effect  that  a  mortgagor,  though  retain- 
ing possession  by  agreement,  is  not  the  tenant  of  the  mortgagee, 
in  such  a  sense  as  to  authorize  a  summary  proceeding  against 
him  to  recover  possession  upon  his  default."^  The  fact  even  that 
there  is  actually  a  formal  lease  has  been  regarded  as  not  author- 
izing the  proceeding,  if  the  lease  is  merely  part  of  a  transaction 
intended  to  secure  the  repayment  of  money,'^  as  when  the  bor- 
rower conveys  by  absolute  deed  to  the  lender  and  the  latter  makes 
a  lease  to  the  former  at  a  rent  equal  to  the  interest  on  the  loan, 
with  a  covenant  to  convey  the  premises  to  the  borrower  on  pay- 
ment of  a  sum  equal  to  the  amount  of  the  loan.s"  But  in  any 
jurisdictions  where  such  a  conveyance  and  lease  back  is  a  recog- 
nized mode  of  securing  the  repayment  of  a  loan,  the  lessor  would 
presumably  be  regarded  as  entitled  to  the  same  remedies  to  re- 

Burch,  48  Vt.  521;  Bennett  v.  Robin-  creditor  should  occupy  the  debtor's 

son,    27   Mich.   26.     And   see   dictum  land  for  one  year  and  until  the  debt 

in  McComts  v.  Wallace,  66  N.  C.  481.  was   paid,   the   relation   of  landlord 

T7  Bennett   v.    Robinson,   27    Mich,  and  tenant  was  held  to  be  created, 

26.  so   that  the   debtor,   on  paying   the 

78  Willis  V.  Eastern  Trust  &  B.  Co.,  debt,  could  maintain  the  proceeding. 

169  U.  S.  295,  42  Law.  Ed.  752;  Neck-  Hunt  v.  Comstock,  15  Wend.  (N.  Y.) 

lace  V,  West,   33  Ark.   682;    Reed  v.  665. 

Elwell,  46  Me.  270;  Lamed  V.  Clarke,  to  Roach  v.  Cosine,  9  Wend.  (N. 
62  Mass.  (8  Gush.)  29;  Hastings  v.  y.)  227;  Greer  v.  Wilfcar,  72  N.  C. 
Pratt,  62  Mass.  (8  Gush.)  121;  Evert-  59^.  cavig  y.  Kemenway,  27  Vt.  589; 
son  V.  Sutton,  5  Wend.  (N.  Y.)  281,  piato  v.  Roe,  14  Wis.  453;  Ragan  v. 
21  Am.  Dec.  217;  Roach  v.  Cosine,  8  Simpson,  27  Wis.  355;  Nightingale  v. 
Wend.  (N.  Y.)  228;  McCombs  v.  Wal-  Barens,  47  Vv^is.  389,  2  N.  W.  767. 
lace,  66  N.  C.  481;  Davis  v.  Hemen-  gut  see  Dougherty  v.  Thompson,  7 
way,  27  Vt.  589;  Nightingale  v.  Bar-  Blackf.  (Ind.)  277,  contra.  In  Pea- 
ens,  47  Wis.  389,  2  N.  W.  767;  Hun-  j,ie  y.  Hewlett,  76  N.  Y.  574,  it  was 
ter  V.  Maanum,  78  Wis.  656,  48  N.  decided  that  the  proceeding  would 
W.  51.  23  Am.  St.  Rep.  443.  The  not  lie  when  the  absolute  deed  and 
view  that  the  mortgagor  in  posses-  lease  back  were  cloaks  for  usury.  It 
sion  by  the  mortgagee's  consent  is  jg  not  stated  whether.  In  the  ab- 
not  the  latter's  tenant  is  considered  sence  of  usury,  the  proceeding  would 
ante,  §  45  a.  In  Hunt  v.  Comstock,  have  been  maintainable. 
15  Wend.  (N.  Y.)  665,  30  Am.  Dec.  so  Steele  v.  Bond,  28  Minn.,  267,  9 
82,    it   having   been   agreed    that   a  n.  W.  772. 

E.  and  Ten.  109. 


1730  SUMMARY  PROCEEDINGS.  §  273 

cover  possession  as  in  the  case  of  a  lease  not  made  for  such  a 
purpose. '^"^" 

g.  By  foreclosure  purchaser  against  mortgagor.  A  mortgagor 
who  refuses  to  yield  possession  in  favor  of  a  purchaser  of  the 
premises  at  foreclosure  sale  is,  it  would  seem  clear,  not  subject  to 
a  summary  proceeding  by  the  latter  as  being  a  tenant  or  lessee 
under  him,  and  it  has  been  so  decided.^^  There  is,  however,  at 
least  one  decision  that  the  mortgagor  so  retaining  possession 
is  liable  to  the  proceeding  as  a  "tenant  at  sufferance, "^2  and 
occasionally  such  proceeding  might  be  upheld  against  him  by 
reason  of  an  express  provision  in  the  mortgage  that  he  should 
be  a  tenant  of  the  purehr.ser.^^ 

h.  By  joint  lessor  or  lessors.  The  fact  that  the  owners  in 
severalty  of  separate  tracts  of  land  joined  in  a  lease  which  in- 
cluded both  tracts  does  not,  it  has  been  held,  prevent  either  owner 
from  maintaining  a  proceeding  to  recover  his  tract.^*  And  it 
has  been  held  that,  by  analogy  to  the  rule  which  authorizes  a 
joint  owner  to  maintain  ejeetment,^^  one  of  two  joint  lessors  may 
maintain  the  proceeding  in  behalf  of  all  and  recover  possession  of 

8oa  See  ante,  §  45  d,  at  note  92.         trust   deed,  when   in  such   deed  the 

81  Necklace  v.  West.  33  Ark.  682;  latter  acknowledged  himself  the  ten- 
McCombs  V.  Wallace,  66  N.  C.  481.         ant   of    the    trustees,   and    expressly 

That  it  does   not  lie  in  favor   of  authorized  such  a  proceeding  against 

the    purchaser    against   one    in    pos-  him  on  behalf  of  the  purchaser, 

session    under    the    mortgagor,    see  An     execution     debtor     does     not 

Goodgion  V.   Latimer,  26  S.   C.   208,  stand   in   the   relation   of   tenant   to 

2  S.  E.  1.     But  that  it  does  lie  in  his  the  purchaser  at  execution  sale,  so 

favor  against  one   holding  under  a  as  to  be  subject  to  such  a  proceed- 

lease  by   the  mortgagor  subsequent  ing  on  the  part  of  the  latter  under  a 

to  the  mortgage,   see  the  Arkansas  statute       authorizing       proceedings 

and  Missouri  cases  cited  ante,  note  against  a  tenant.     Cummings  v.  Kil- 

26.  Patrick,  23  Miss.   106.     But  he  may 

82  Kinsley  v.  Ames,  43  Mass.  (2  of  course  be  made  subject  to  such  a 
Mete.)   29.  proceeding  by  express  statute.     See 

83  See  Griffith  v.  Brackman,  97  Spraker  v.  Cook,  16  N.  Y.  567. 
Tenn.  387,  37  S.  W.  273,  49  L.  R.  A.  s*  New  York  &  N.  J.  Tel.  Co.  v.  De 
338;  Hamilton  Bldg.  &  Loan  Ass'n  Gray,  65  N.  J.  Law,  156,  46  Atl.  651. 
V.  Patton,  105  Tenn.  407,  58  S.  W.  That  they  might  sue  jointly  in  such 
482.  And  see  ante,  §  47.  In  Chapin:  case,  see  Oakes  v.  Munroe,  62  Mass. 
V.    Billings,    91    111.    539,    it   is    held  (8    Cush.)    282. 

that  a  proceeding  of  forcible  entry       ss  See     Adams,     Ejectment,     210; 
and  detainer  may  be  brought  by  the   Freeman,  Cotenancy,  §§  339,  340. 
purchaser  against  the  maker  of  the 


.  273  BY  AND  AGAINST  WHOM  MAINTAINABLE3.  1731 

the  whole  premises.^«  Two  joint  owners  of  the  land  who  made 
to  one  person  separate  leases  of  their  undivided  interests,  at  dit- 
ferent  times  and  on  different  terms,  and  who,  on  expiration  ot 
the  leases,  made  separate  demands  for  possession,  cannot,  it  has 
been  held,  join  in  a  proeeedinc^  for  possession.^^ 

i  By  personal  representative.  The  person  entitled  to  posses- 
sion of  the  land  as  against  the  tenant,  upon  the  death  of  a  land- 
lord, is  in  most  jurisdictions  the  heir  or  devisee,  though  m  some 
the  personal  representative  is  given  the  possession  for  the  pur- 
pose  of  settling  the  estate.  Consequently  the  personal  represen- 
tative is,  it  seems,  in  most  jurisdictions,  not  entitled  to  maintam 
the  proceeding's  if  the  reversion  is  of  a  freehold  nature.  Oc- 
casionally a  proceeding  by  him  has  been  sustamed.sa 

A  proceeding  by  the  devisee  and  the  personal  representative, 
jointly,  has  been  supported  in  a  case  where  the  lease  by  testator 
covered  both  his  freehold  and  leasehold  property .»<> 

An  executor  who  has  himself  made  the  lease  under  a  statutory 
power  has  been  regarded  as  entitled  to  maintain  the  proceed- 

i'  By  guardian.  A  proceeding  by  a  guardian  of  an  infant  en- 
titled to  the  property  has  been  sustained,^^  as  has  one  by  a  "con- 

scMullone  v  Klein.  55  N.  J.  Law.  ««  See  Sweeney  v.  Mines,  31  Mo. 
479  7  Atl  Io2;  Rabe  v.  Fyler,  18  240.  In  Moody  v.  Ronaldson.  8 
Miss  (10  Smedes  &  M.)  440.  48  Am.  Ga.  652.  it  is  said  that  smce  the 
Dec  763-  Mason  v.  Bascom.  42  Ky.  statute  authorizes  a  maintenance  of 
nB  Mon)  269.  38  Am.  Dec.  186.  the  proceeding  by  the  owner,  his 
are  to  the  effect  that  the  grantee  of  agent  or  attorney,  it  in  effect  au- 
anvmdvided  interest  may  maintain  thorizes  it  by  his  administrator, 
the  proceeding.  But  King  v.  Dicker-  since  the  latter  is  the  legal  owner 
man  77  Mass  (11  Gray)  480.  seems  for  the  purpose  of  paying  debts  and 
"'  distributing  the  estate. 

The  "widow  of  the  lessor,  entitled  Occasionally  the  statute  authorizes 
to  dower  though  this  had  not  been  the  "legal  representative  of  the 
tZ^ea    has    been   held   to   be   en-   landlord   or  person  entitled   to  pos- 

itled  to' institute  the  proceeding  on  session  to  file  the  co^painj..  Se^ 
her  own  behalf  and  on  behalf  of  the  M^ss^ss^pp^  Code  190  ,  §  2886  New 
>,oir«  nf  the  lessor    whose  guardian   Jerscij,  2  Gen.  St.  p.  1918.  §  18,  New 

sh    was     MO  dy  V  Seaman.  46  Mich.   Yor,  Code  Civ.  Proc.  §   2235.     This 

74    Tn    W    711  probably   includes  the  personal   rep- 

87  ware  v.  Warwick.  48  Ala.  295.     resentative. 
8s  That  he  is  not  so  entitled,   see       -  People  v.  Dudley.  58  N  Y.  323. 

Carlisle  v    Prior.  48  S.  C.  183,  26  S.       e^  Spear  v.  Lomax.  42  Ala.  576. 

Carlisle  V.  rii  ^^  ^^   Gallagher  v.   David   Steven- 

E.  244. 


1732  SUMMARY  PROCEEDINGS.  §  273 

Bcrvator,"  who  has  hy  statute  charge  of  and  power  to  manage 
tlie  estate  of  the  ward.°3 

k.  By  receiver.  It  has  been  decided  that  a  receiver,  appointed 
under  the  general  equity  power  of  the  court,  to  lease  propeiiy 
and  collect  rents,  during  the  pendency  of  an  action,  has  no  power 
to  institute  the  proceeding  in  his  own  name  against  one  holding 
under  a  lease  from  one  of  the  parties.^^ 

1,  By  agent  or  attorney.  A  number  of  the  statutes  provide 
that  the  complaint  of  affidavit  by  which  the  summary  proceeding 
is  commenced  may  be  made  by  the  landlord  or  owner,  "or  his 
agent"  or  "his  attorney. "^^  Whether  this  would  ordinarily  be 
construed  to  mean  that  the  proceeding  may  be  instituted  in  the 
name  of  the  agent  or  attorney  does  not  clearly  appear.  In  one 
state  it  has  been  decided  that  it  may  be  so  instituted.^^' 

m.  Effect  of  transfer  of  reversion.  Some  of  the  statutes  ex- 
pressly give  to  one  claiming  under  the  lessor  as  assignee  or  trans- 
feree the  same  right  to  maintain  the  proceeding  as  has  the  lessor 
himself.  But  apart  from  any  such  express  provision,  it  would 
seem  clear  that  if  the  statute  gives  the  right  to  the  "landlord"  or 
to  the  person  "entitled  to  possession,"  one  to  whom  the  reversion 
has  passed,  either  by  voluntary  act  or  by  act  of  the  law,  may  main- 
son  Brew.  Co.,  13  Misc.  40,  34  N.  Y.  the  "conventional"  relation  of  land- 
Snpp.  94,  it  is  held  that  a  guardian  lord  and  tenant  arose,  enabling  the 
who  made  the  lease  may  maintain  infant  to  maintain  the  proceeding, 
the  proceeding.  In  People  v.  Inger-  9*  King  v.  Cutts,  24  Wis.  627. 
soil,  20  Hun  (N.  Y.)  316,  58  How.  ^^  Georgia  Code  1895,  §  4813  (See 
Pr.  351,  it  is  held  that,  though  the  Johnson  v.  Thrower,  117  Ga.  1007,  44 
lease  was  made  by  the  guardian,  the  S.  E.  846) ;  Indiana,  Bums'  Ann.  St. 
ward  may  maintain  the  proceeding  1901,  §  7106;  Michigan  Comp.  Laws 
after  attaining  his  majority.  See,  1897,  §  11165;  Mississippi  Code  1906, 
also,  Moody  v.  Seaman,  46  Mich.  74.  §  2886;  New  Jersey,  2  Gen.  St.  p. 
8  N.  W.  711,  ante,  note  86.  1918,  §  18;  New  York  Code  Civ.  Proc. 

03  Palmer  v.  Cheeseboro,  55  Conn.  §  2235;  North  Carolina  Revisal  1905, 
114,  10  Atl.  508,  3  Am.  St.  Rep.  40.  §  2002;  South  Carolina  Civ.  Code 
In  Dorschel  v.  Burkly,  18  Misc.  240,  3  902,  §  243;  Texas  Rev.  St.  1895,  art. 
41  N.  Y.  Supp.  389,  it  was  held  that  2523;  Wisconsin  Rev.  St.  1898,  § 
where  the  guardian  of  an  infant  re-   3362. 

mainderman,  after  the  life  tenant's       se  Case  v.  Porterfield,  54  App.  Div. 
death,  permitted  a  tenant  of  the  lat-    109,  66  N.   Y.  Supp.  337;   Powers  v. 
ter  to  remain  in  possession,  paying    De   0,    64    App.   Div.   373,    72   N.   Y. 
rent,    until    the    infant's    majority,    Supp.  103. 
and  the  latter  then  demanded  rent. 


§  273  BY  AND  AGAINST  WHOM  MAINTAINABLE.  1733 

tain  the  proceeding,  since  he  is  the  "landlord"  as  well  as  the 
person  ' '  entitled  to  possession. "  That  such  transferee  may  main- 
tain the  proceeding  has  been  generally  recognized,^^  but  there 
are  in  some  jurisdictions  decisions  that  he  cannot  do  so  in  the 
absence  of  a  statute  expressly  so  providing,  this  view  being  based 
mainly  on  the  theory  that  otherwise  an  inquiry  into  title  would 
be  involved,98  in  violation  of  the  express  provision  of  the  stat- 
ute.99  In  one  decision,  in  which  this  view  is  asserted,  it  is  stated 
that  the  proceeding  is  properly  brought  in  the  name  of  the  lessor 
for  the  use  of  his  transferee.^00 

So  far  as,  in  any  jurisdiction,  an  attornment  might  be  neces- 
sary in  order  to  make  a  transferee  of  the  reversion  the  landlord 
of  the  tenant,  he  would  not,  in  the  absence  of  attornment,  be  able 

07  Bradley  v.  Hume,   18  Ark.  284;    assign);    Barton  v.  Learned    26  Vt 
Brockway  v.  Thomas,   36  Ark.   518;    192,    62   Am.    Dec.    364;    McKeon   v 
Johnscn  V.  West,  41  Ark.  535;   Mor-    King,    9    Pa.    213     (execution    pur* 
row  V.   Sawyer,  82  Ga.  226,  8   S.  E.   chaser);    Capital  Brew.  Co.  v    Cros- 
51;    Prichard   v.  Tabor,   104   Ga.   64,    bie,  22  Wash.  269,  60  Pac.  652-  Bar- 
30  S.  E.  415;   Willis  v.  Harrell,  118    ton  v.  Learned,  26  Vt    192    62  Am 
Ga.  306,  45  S.  E.  794;  Dudley  v.  Lee,    Dec.    364;    Foss    v.    Stanton,   76   Vt. 
39  111.  339;   Herndon  v.  Bascom,  39    365,  57  Atl.  942 
Ky.    (8    Dana)    113;    Thomason    v.       That  the  hei^r  of  tHe  lessor  may 
McLaughlin  (Ind.  T.)  103  S.  W.  595;    maintain  the  proceeding  see  Kellum 
Sacket    V.    Wheaton,    34    Mass.    (17    v.  Balkum,   93  Ala.   317,  9  So    463- 
Pick.)   103    (grantee  of  lessor's  dev-    Compton  v.  Ivey,  59  Ind.  352-  Turly 
Isee);   Marsters  v.  Cling.  163  Mass.   v.   Foster,   9  Ky.'   (2  A.   K    Marsh) 
477.   40    N.    E.    763    (execution   pur-   204;   Roberts  v.  McPherson,  62  N   J 
chaser) ;    Smith   v.   Kaiser,   17   Neb.   Law.   165.  40  Atl.  630 
184.  22  N.  W.  368;  McGuffie  v.  Carter,       In  May  v.  Kendall    8  Phila    (Pa  ) 
42  Mich.  497.  4  N.  W.  211;  Alworth    244,  it  was  held  that' where  the  stat 
V.   Gordon,   81  Minn.    445,   84   N.   W.    ute   authorized  a  proceeding  by  the 
454;  Watson  v.  Idler,  54  N.  J.  Law.   lessor   "or  his  heirs  or  assigns"  a 
467,24  Atl.  554;  Binder  T.Azzaro,  74    residuary    devisee    could    not    m'ain- 
N.   J.   Law,    328,   65  Atl.   849;    Rabe   tain  it.     A  different  view  might  well 
V.  Fyler,  18  Miss.  (10  Smedes  &  M.)    have  been  adopted,  it  would  seem 
440,    48    Am.    Dec.    763;    Birdsall   v.       «8  Dwine   v.    Brown    35   Ala     596- 
Phillips,  17  Wend.  (N.  Y.)  464;  Lang   Reay  v.  Cotter,  29  Cal    168-  Picot  v' 
v.   Everling,   3   Misc.   530.   23   N.   Y.   Masterson,    12    Mo.    303;    Youngs   v' 
Snpp.    329     (purchaser    at    foreclos-   Freeman,    15    N.    J.    Law    (3    J     S 
ure);     Griffin    v.    Barton,    22     Misc.    Green)   30. 
228,  49  N.  Y.   Supp.  10-21;    Wetterer       99  See  post,  note   393 
v.  Soubirous,  22  Ml?c.  739,  49  N.  Y.        100  Cooper  v.  Gambill,'l46  Ala   184 
Supp.    1043;     Duff    v.    Fitzw?.ter,    54    40  So.   827. 
Pa.  224,  93  Am.  Dec.  691  (assign  of  * 


1734  SUMMARY  PROCEEDINGS.  §  27 J 

to  proceed  as  landlord,  unless  the  statute  contains  a  provision  ex- 
pressly conferring  the  right  upon  the  transferee.^ "^^  But,  as  be- 
fore stated,  the  requirement  as  to  attornment  is  abrotrated  in 
most,  if  not  all,  jurisdictions,' "^  and  that  no  attornment  is  neces- 
sary, in  order  to  enable  the  transferee  to  maintain  the  proceed- 
ing, has  been  expressly  decided.^^^ 

One  to  whom  the  equitable  title  only  to  the  reversion  has  been 
transferred,  as  for  instance,  one  holding  a  bond  for  title  from 
the  lessor,  or  a  contract  for  a  conveyance,  cannot  bring  the  pro- 
ceeding,'''-*  unless  at  least  there  is  an  express  stipulation  giving 
him  the  right  of  possession.  But  it  has  been  decided  that  where 
one  having  merely  an  equitable  title  made  a  lease,  and  subse- 
quently transferred  all  his  rights  and  title  in  the  land,  the  trans- 
feree could  maintain  the  proceeding.^^^ 

It  has  been  decided  that,  under  a  statute  giving  the  remedy  to 
the  assigns  of  the  lessor,  the  grantee  of  the  reversion  in  part  of 
the  leased  premises  may  bring  the  proceeding  to  recover  posses- 
sion of  such  part,^^^  but  in  another  jurisdiction  there  is  perhaps 
a  decision  to  the  contrary. ^o?  n  }^as  also  been  decided  that  the 
grantee  of  an  undivided  interest  in  the  land  may  maintain  the 
proceeding,  the  possession  so  recovered  by  him  to  be  regarded 
as  in  behalf  of  himself  and  the  other  joint  owners.^*^?     But  an 

101  That   no   attornment   Is   neces-  Sinclair,   52  Mo.   327.     In   McMurtry 

sary   if  a   proceeding  by  the   trans-  v.  Adams,  66  Ky.    (3  Bush)    70,  the 

feree  is  expressly  authorized  by  the  right  of  one  who  obtained  the  title 

statute,    see    Thomasson    v.    Wilson,  of    the    lessor    by    decretal    sale    to 

146   111.   384,   34   N.   E.   432;    Ray   v.  maintain   the     proceeding     was     in 

Blackman,   120  Mo.  App.   497,  97   S.  terms    based    on    the    fact    that    the 

W.  212.  tenant   had   attorned   to   him. 

112  See  ante,  §  146  f.  io4  Sullivan   v.  Enders,  33  Ky.    (3 

103  Marsters    v.    Cling,    163    Mass.  Dana)  66;  Harrison  v.  Middleton,  11 

477,  40  N.  E.  763;  Wetterer  v.  Soubir-  Grat.   (Va.)   527. 

ous,   22   Misc.    739,   49   N.    Y.    Supp.  los  Goodlet   v.   Cleaveland,   51   Ky. 

1043;  Tilford  v.  Fleming,  64  Pa.  300.  (12  B.  Mon.)  430. 

But   in    Duke   v.    Compton,    49    Mo.  loe  De  Coursey  v.  Guarantee  Trust 

App.  304,  it   is  stated  that  the  pro-  Co.,  81   Pa.  217. 

ceeding  does   not   lie  in   favor  of  a  107  Abeel  v.  Hubbell,   52  Mich.  37, 

transferee,   unless  expressly  author-  17  N.  W.  231,  50  Am.  Rep.  240. 

ized   by   statute,   in   the   absence   of  los  Rabe    v.    Fyler,    18    Miss.    (10 

attornment,    and     there    is    a    sug-  Smedes  &  M.)  440,  48  Am.  Dec.  763; 

gestion    to    the    elfect    that    attorn-  Mason  v.  Bascom,  42  Ky.  (3  B.  Mon.) 

ment     is     necessary     in     Gunn     v.  269. 


§  273  BY  AND  AGAINST  WHOM  MAINTAINABLE.  1735 

apparently  contrary  decision  is  found  in  another  jurisdiction.^*''' 
Since,  after  the  transfer  by  the  lessor  of  the  reversion,  he  ceases 
to  be  landlord  and  so  ceases  to  have  any  right  to  the  possession 
upon  the  termination  of  the  tenancy,  it  would  seem  to  follow  that 
he  has  no  longer  any  right  to  maintain  the  proceeding,  and  it  has 
been  so  decided.^!*'  So  long,  however,  as  he  retains  the  legal 
title,  though  he  has  parted  with  the  equitable  interest,  he  is  the 
person  to  maintain  such  proceeding.^  Occasionally  it  has  been 
decided  that  the  lessor  may  maintain  it  even  after  transferring 
the  reversion.^  12 

One  to  whom  the  lessor  has  transferred  merely  the  rent  alone,i^' 
as  when  he  in  terms  transfers  the  "lease, "^^^  has  no  right  to 
maintain  the  proceeding,  he  not  having  thereby  acquired  any  in- 
terest in  the  reversion  or  any  right  to  possession. 

n.     Effect  of  subsequent  lease.     In  case  the  owner  of  the  re- 

109  King  V.  Dickerman,  77  Ky.  (11  lowed  in  Tucker  v.  McClenney,  103 
Gray)    480.  Mo.  App.   318,  77   S.  W.  151,  wliere 

110  Purdy  V.  Rakestraw,  13  111.  it  was  stipulated  by  the  deed  of  con- 
App.  (13  Bradw.)  480;  McGuffie  v.  veyance  that  the  right  of  possession 
Carter,  42  Mich.  497,  4  N.  "W.  211;  should  remain  in  the  lessor  until 
Pentz  V.  Kuester,  41  Mo.  447;  Boyd  he  recovered  the  actual  possession. 
V.  Sametz,  17  Misc.  728,  40  N.  Y.  A  different  view  is  taken  in  Boyd  v. 
Supp.  1070.  In  Holliday  v.  Chism,  Sametz,  17  Misc.  728,  40  N.  Y.  Supp. 
25  Ind.  App.  1,  57  N.  E.  563,  the  1070;  and  Holliday  v.  Chism,  25  Ind. 
denial  of  the  right  of  the  grantor  to  App.  1,  57  N.  E.  563,  as  to  the  effect 
maintain  the  proceeding  is  based  on  of  a  covenant  to  put  the  grantee  in 
the  statutory  provisions  that  every  possession.  In  Cooper  v.  Gambill, 
action  must  be  prosecuted  in  the  146  Ala.  184,  40  So.  827,  it  is  said 
name  of  the  real  party  in  interest,  that  the  proceeding  could  not  be 
and  that  any  person  entitled  to  re-  maintained  by  "the  purchaser,"  who 
cover  possession  of  land  may  do  so  was  apparently  also  the  legal  gran- 
In  his  own  name.  In  this  case  the  tee,  but  that  It  was  proper  for  the 
grantor  had  agreed  that  he  would  lessor  to  institute  the  suit  for  the 
obtain  the  possession  for  the  gran-  use  of  the  purchaser,  the  real  party 
tee.  in   interest. 

111  Miller  v.  Levi,  44  N.  Y.  492;  us  Kelly  v.  Smith,  41  N.  Y.  St. 
Harrison     v.     Middleton,     11     Grat.    Rep.  020,  16  N.  Y.  Supp.  521. 

(Va.)    527.  ii4Markin    v.    Vv'hitaker,    26    Ind. 

112  See  White  v.  Bailey,  14  Conn.  App.  211,  58  N.  B.  542.  But  see 
271,  to  this  effect,  and  it  is  so  de-  Drew  v.  Mosbarger,  104  111.  App. 
cided  in  Logan  v.  Woolwine,  56  Mo.  635,  where  the  assignment  of  the 
App.  453,  on  the  ground  that  the  "lease"  appears  to  be  regarded  as 
lessor  had  agreed  to  put  his  grantee  making  the  assignee  the  landlord  for 
In  possession.     The  latter  case  is  fol-  this  purpose.     Compare  ante,  §  146  b. 


1736  SUMMARY  PROCEEDINGS.  §  273 

version  makes  a  lease  to  commence  in  possession  upon  the  ter- 
mination of  the  former  lease,  such  second  lessee,  it  has  been  usu- 
ally considered,  may,  as  being  entitled  to  possession,  maintain  the 
proceeding  against  the  first  lessee,  in  case  the  latter  holds  over 
his  term.''^  Such  second  lessee,  it  has  occasionally  been  said,  is 
an  "assignee"  within  the  meaning  of  a  statute  giving  the  benefit 
of  the  proceeding  to  the  "assignee"  of  the  lessor.^ ^^  In  some 
cases,  however,  the  right  of  the  second  lessee  to  maintain  the 
proceeding  has  been  denied.^ ^'^ 

The  lessor  has  sometimes  been  regarded  as  retaining,  in  such 
case,  the  right  to  maintain  the  proceeding,  the  first  lessee  being 
thus  apparently  subject  to  a  proceeding  by  either  the  lessor  or 
the  second  lessee,"*  and  occasionally  this  right  in  the  lessor  has 

115  Field  V.  Herrick,  101  111.  HO;  James  Hanley  Brew.  Co.,  23  R.  I.  343, 
Webb  V.  Hyman,  40  111.  App.  335;  50  Atl.  392  (ejectment);  Twiss  v. 
Ball  V.  Chadwick,  46  111.  28;  Gazzolo  Boehmer,  39  Or.  359,  65  Pac.  18  (sem- 
V.  Chambers,  73  111.  75;  Beidler  v.  ble).  See  King  v.  Reynolds,  67  Ala. 
Fish,   14   111.   App.    (14    Bradw.)    29;    229,  42  Am.  Rep.  107. 

Boyce     v.     Graham,     91     Ind.     420;        nsGoelet  v.  Roe,   14   Misc.   28,  35 

Burton  v.  Rohi'beck,  30  Minn.  393,  15  N.  Y.  Supp.  145;   Davidson  v.  Ham- 

N.    W.    678;    Russo   v.   Yuzolino,   19  merstein,  28  Misc.  529,  59  N.  Y.  Supp. 

Misc.  28,  42  N.  Y.  Supp.  482;  Harris  563;   Imbert  v.  Hallock,  23  How.  Pr. 

V.  Halverson,  23  Wash.  779,  63  Pac.  (N.    Y.)     456;     Vatuone    v.    Canno- 

549.     See  Rieger  v.  Welles.  110  Mo.  bio,   4   Cal.   App.   422.    88    Pac.   374: 

App.  166,  84  S.  W.  1136.     In  Capital  Gelston    v.    Sigmund,    27    Md.    345; 

Brew.  Co.  v.  Crosbie,  22  Wash.  269,  Hammond    v.    Jones,    41    Ind.    App. 

60   Pac.   652,  this   view  is  based   on  32,    83    N.    E.    257.       In    Yosemite 

the    statutory    provision    that   every  Valley   Com'rs   v.    Barnard,   98    Cal. 

action    shall    be    prosecuted    In    the  199,  32  Pac.  CS2,  it  is  decided  that  it 

name  of  the  real  party  in  interest.  is  no  defense  to  a  proceeding  by  the 

116  Kelly  V.  Clancy,  15  Mo.  App.  lessor  that  he  has  made  a  subse- 
519;  Gardner  v.  Keteltas,  3  Hill  (N.  quent  lease,  for  the  reason  that  this 
Y.)  330,  38  Am.  Dec.  637;  Ball  v.  would  involve  the  assertion  of  an 
Chadwick,  46  111.  28;  V/hite  v.  Arth-  outstanding  title  as  a  defense.  There 
urs,  24  Pa.  96.  is,   however,   in    such   case,   no   out- 

117  Hardy  v.  Ketchum,  14  C.  C.  A.  standing  title  paramount  to  that 
398,  67  Fed.  282;   Imbart  v.  Hallock,  created  by  the  original  lease. 

23  How.  Pr.    (N.  Y.)    456;    Rothman        In  Mngeon  v.  Alkire,  41  Colo.  338, 

V.  Kosower,  48  Misc.   538,  96  N.  Y.  92  Pac.  720,  it  is  said,  quotinjj  Thom- 

Supp.  268;   Spalding  v.  Hall,  6  D.  C.  asson  v.  Wilson,  146  III.  384,  34  N.  E. 

123    (though   statute    gave   right   of  432,  that  in  such  case  the  landlord 

action    to    person    "entitled    to    the  may  sue  for  unlawful  detainer  and 

premises") ;    Hammond  v.  Jones,   41  the  second  lessee  for  forcible  entry. 

Ind.  App.  32,  83  N.  E.  257;  Maher  v.  In  the  Illinois  case  the  facts  were  en- 


§  273  BY  AND  AGAINST  WHOM  MAINTAINABLE.  1737 

been  based  upon  the  fact  that  he  is  under  an  obligation  to  put 
the  second  lessee  in  possession.^^^  In  other  cases  the  right  of 
the  second  lessee  to  maintain  the  proceeding  has  been  regarded 
as  excluding  a  proceeding  by  the  lessor.^^o 

On  the  same  principle  as  that  on  which  a  subsequent  lessee 
has  been  allowed  to  maintain  the  proceeding,  it  has  been  upheld 
in  favor  of  a  lessee  for  years  against  a  prior  tenant  at  will,  whose 
tenancy  has  been  terminated,  either  by  the  making  of  the  lease 
for  years,  or  otherwise.^  ^^ 

One  to  whom  property  is  leased  subject  to  an  existing  lease, 
that  is,  one  to  whom  a  "concurrent  lease "^22  jg  made,  being  a 
transferee  of  the  reversion,  would  ordinarily  have  the  right  to 
institute  the  proceeding.i^za 

0.  Against  persons  claiming  under  lessee — Assignees  and  sub- 
tenants. The  language  of  the  statutes  is,  almost  invariably,  it 
would  seem,  sufficient  to  support  a  proceeding  against  one  who  is 
in  possession  as  an  assignee  of  the  lease,  they  sometimes  in  terms 
authorizing  proceedings  against  a  tenant,i23  which  such  assignee 

tirely  different,  there  being  but  one  lessee  cannot  maintain  tlie  proceed- 
lease,  and  a  forcible  entry  by  a  ing  without  first  notifying  the  ten- 
stranger  on  the  tenant  thereunder.  ant  at  will  of  such  lease.  Furlong 
110  Vincent  v.  Defield,  98  Mich.  84,  v.  Leary,  62  Mass.  (8  Gush.)  409. 
56  N.  W.  1104,  distinguished  in  But  aliter  when  the  landlord  has 
Lewis  V.  Brandle,  107  Mich.  7,  64  previously  terminated  the  tenancy 
N.  W.  734;  Logan  v.  Wool  wine,  5G  at  will,  under  the  statute,  for  non- 
Mo.  App.  453;  Schreiner  v.  Stanton,  payment  of  rent.  Hildreth  v.  Gon- 
26  Wash.  563,  67  Pac.  219.  ant,  51   Mass.    (10  Mete.)    298.     One 

120  Allen  v.  Webster,  56  111.  393;  to  whom  two  out  of  three  tenants  in 
Beidler  v.  Fish,  14  111.  App.  (14  common  have  made  such  a  lease  for 
Bradw.)  29.  In  L'Hussier  v.  Zallee.  5'ears  has  been  regarded  as  entitled 
24  Mo.  13,  it  is  decided  that  the  les-  to  maintain  the  proceeding  against 
sor  cannot  recover  possession  unless  the  prior  tenant  at  will.  Grundy  v. 
the  first  lessee  has  elected  to  hold  Martin,  143  Mass.  279,  9  N.  E.  647. 
the  lessor  in  damages  for  nondeliv-       122  See  ante,  §  146  d. 

ery   of   possession.  122a  Hendrickson     v.     Beeson,     21 

121  Hayden  v.  Ahearn,  75  Mass.  (9  Neb.  61,  31  N.  W.  266;  McDonald  v. 
Gray)  438;  Alexander  v.  Carew,  95  Hanlon,  79  Cal.  442,  21  Pac.  861. 
Mass.  (13  Allen)  70;  Gasey  v.  King,  The  decision  in  Schlaich  v.  Blum,  42 
98  Mass.  503;  Barton  v.  Learned,  26  Misc.  225,  85  N.  Y.  Supp.  335,  ap- 
Vt.  192,  62  Am.  Dec.  364.  pears  to  be  to  the  effect  that  in  such 

It   has   been    decided    that   if   the   ^    c^^se    the    original    lessor    cannot 
tenancy  at  will  is  terminated  by  the   maintain  the  proceeding, 
making  of  the  subsequent  lease,  the        i^z  Arizona  Rev.  St.  1901,  §  2693; 


1738  SUMMARY  PROCEEDINGS. 


§  273 


clearly  is,  and  sometimes  authorizing  proceedings  against  per- 
sons holding  "under"  the  lease,^-*  and  sometimes  against  the 
person  in  possession.^ 25  Occasionally  "assigns"  are  specifically 
mentioned.i2c  Even  though  a  particular  statute  authorizes  pro- 
ceedings against  a  "lessee"  only/ 27  ^bis  will  presumably  be  con- 
strued as  authorizing  proceedings  against  an  assignee  of  the  les- 
see, immediate  or  remote. 

The  assignee  of  a  tenant  at  will,  who  has  taken  possession  by 
reason  of  the  assignment,  has  been  rt'garded  as  a  person  holding 
under  the  lessee  within  the  statute,  though  the  assignment  is 
nugatory  as  against  the  landlord.^ 28 

The  widow  of  a  tenant  in  possession  has  been  regarded  as 
prima  facie  his  assignee  and  so  subject  to  expulsion  by  a  pro- 
ceeding of  this  character.' 29     And  the  widow  and  heirs  of  the 

California  Code  Civ.  Proc.  §  1161;  III.  App.  134;  Hasbrouck  v.  Stokes, 
Colorado,  Mill's  Ann.  St.  §  1973;  Dis-  13  N.  Y.  Supp.  333. 
trict  of  Cohimhia  Code  1901,  §§  20,  ^"^^  Maryland  Code  Pub.  Gen.  Laws 
1225;  Florida  Gen.  St.  1906,  §  2227;  1904,  art.  53,  §  1  (Tenant  or  person 
Georgia  Code  1S95,  §  4813;  Indiana,  actually  in  possession);  Missouri 
Burns'  Ann.  St.  1901,  §  7106;  Kansas  Rev.  St.  1899,  §  3321  (Any  person 
Gen.  St.  1905,  §  5S41;  Kentucky  Civ.  continuing  in  possession);  Hew 
Code  Prac.  §  452;  Maine  Rev.  St.  Hampshire  Pub.  St.  1901,  c.  246,  §  7 
1903,  c.  96,  §  1  (Tenant  holding  un-  (Lessee  or  occupant);  Texas  Rev. 
der  written  lease) ;  Montana  Rev.  St.  1895,  art.  2519  (Any  person  hold- 
Codes,  §   7271;   Nebraska  Comp.   St.  ing  over  term). 

1905,  §  7525;  Nevada  Comp.  Laws  120  Flo-riria  Gen.  St.  1906,  §  2227; 
1900,  §  3825;  New  Mexico  Comp.  Mississippi  Code  1906,  §  2885;  Neto 
Laws    1897,    §    3345;    Ohio   Rev.    St.  Jersey,  2  Gen.  St.  p.  1922,  §  30;  New 

1906,  §  G600;  Oklahoma  Rev.  St.  York  Code  Civ.  Proc.  §  2231;  North 
1903,  §  5087;  Pennsylvania,  Pepper  Carolina  Revisal  1905,  §  2002;  Ten- 
&  Lewis'  Dig.  Laws,  "Landlord  &  nessee,  Shannon's  Code  1896,  §  5093. 
Tenant,"  §§  25,  28;  South  Carolina  127  e.  g.,  Iowa  Code  1897,  §  4208; 
Civ.  Code  1902,  §  2421.  Pennsylvania,  Pepper  &  Lewis'  Dig. 

124  Arkansas,  Kirby's  Dig.  St.  1904,  Laws,  "Landlord  &  Tenant,  §  34.     So 

§  3630;   Connecticut  Gen.  St.  1902,  §  North    Dakota    (Rev.   Codes   1905,    § 

1082;  Illinois,  Kurd's  Rev.  St.  1905,  8406)    and   South  Dakota    (Justices' 

c.  57,  §  2;  Massachusetts  Rev.  Laws  Code.  §  44)  authorize  the  proceeding 

1902,   c.    181,    §    1;    Michigan   Comp.  only  against  a  lessee  who  in  person 

Laws  1897,  §  11164;  Minnesota  Rev.  or  by  subtenant  holds  over. 
Laws  1905,  §  4038.  128  Hart  v.  Bouton,  152  Mass.  440, 

That     the      proceeding     will      He  25  N.  E.  714. 
against     the     lessee's     assignee     for       129  Michenfelder     v.     Gunther,     66 

creditors,  see  Reynolds  v.  Fuller,  64  How.  Pr.    (N.  Y.)   464. 


§  273  BY  AND  AGAINST  WHOM  MAINTAINABLE.  1739 

tenant  have  been  regarded  as  within  the  operation  of  such  a 
statute.130 

One  holding  under  a  sublease  is,  it  seems  clear,  included  in  the 
description  of  "tenants,"  or  of  persons  holding  "under"  the  les- 
see, as  well  as  of  persons  "in  possession. "^^i  j^^  occasionally 
the  language  of  the  statute  specifies  subtenants  as  persons  who 
may  be  expelled  by  proceedings  of  this  charaeter.i^s 

One  who  obtains  possession  by  collusion  with  the  tenant  or  sub- 
tenant, although  he  asserts  a  right  of  possession  under  a  title 
adverse  to  that  of  the  lessor,  is  subject  to  expulsion  by  such  pro- 
ceedings, since  he  is,  as  regards  the  lessor,  in  no  better  position 
than  a  subtenant.^  ^3  13 ^t  q^q  -^j^q  enters  during  the  tenancy, 
without  any  privity  with  the  tenant,  cannot  be  ousted  by  the 
landlord  as  if  he  had  entered  under  the  tenant,^ ^^  even  though 
he  declares  to  the  landlord  that  he  did  so  enter.^^s  There  may, 
however,  be  a  local  statute  under  which  proceedings  may  be  in- 
stituted against  him  by  the  landlord  after  the  end  of  the  ten- 
ancy .^^^ 

A  licensee  of  a  tenant  is  liable  to  be  proceeded  against  by  the 
landlord,  it  appears,  to  the  same  extent  as  a  subtenant. ^^7 

i3oBrubaker  v.  Poage,  17   Ky.    (1  Shannon's    Code   1S96,    §    5093.     See 

B.  Mon.)    123;    Fogle  v.  Chaney,  51  Reed  v.  Hawley,  45  111.  40;  Blachford 

Ky.    (12  B.  Mon.)    138.  v.    Frenzer,    44    Neb.    829,   62   N.   W. 

131  See  Giddens  v.  Boiling,  92  Ala.  1101;  Ward  v.  Burgher,  90  Hun,  540, 
586,  9    So.   274;    Winkler  v.   Massen-  S5  N.  Y.  Supp.  961. 

gill,  66  Ark.  145,  49  S.  W.  494;  Haase  isa  Giddens  v.  Boiling,  92  Ala.  586, 

V.   Schickner,   29    Ky.   Law   Rep.    87,  9  So.  274;  Winkler  v.  Massengill,  66 

92  S.  W.  949;  Fogle  v.  Chaney,  51  Ky.  Ark.  145,  49  S.  W.  494;    Ballance  v. 

(12  B.  Mon.)   138;   Elms  v.  Randall,  Fortier,   8    111.    (3   Gilm.)    291;    Doty 

32    Ky.    (2    Dana)    100;    Stewart    v.  v.    Burdick,    83    111.    43;    Stewart    v. 

Miles,  166  Mo.  174,  65  S.  W.  754;  Bird  Miles,   166   Mo.    174,    65    S.    W.    754; 

V.  Fannon,  40  Tenn.  (3  Head)  12.  Russell   v.   Van   Fleet,   24   Ky.  Law 

132  California    Code    Civ.    Proc.    5  Rep.  232,  68  S.  W.  396. 

1161  (When  tenant  continues  in  pos-  134  Colt    v.    Eves,    12    Conn.    243; 

session  in  person  or  by  subtenant) ;  Blackman  v.  Welsh,  44  Mo.  41. 

Florida  Gen.  St.  1906,  §  2227;  Idaho  iss  People   v.   Hovey,   4    Lans.    (N. 

Code  Civ.  Proc.   §    3974;    Mississippi  Y.)   86. 

Code    1906,    §    2885;    Montana    Rev.  i36  See  Thomasson  v.  Wilson,  146 

Codes,  §  7271;  New  Jersey,  2  Gen.  St.  111.  384,  34  N.  E.  432. 

p.  1922,  §   30;   Neio  York  Code  Civ.  137  See  Stewart  v.   Miles,   166    Mo. 

Proc.    §    2231;    Islorth    Dakota    Rev.  174,   65   S.  W.  754;    and  cases  cited 

Codes   1905,    §    840G;    South   Dakota,  post,  note  140. 

Justices'     Code,     §     44;     Tennessee, 


1740  SUMMARY  PROCEEDINGS.  §  273 

There  are  several  decisions  to  the  efTect  that,  in  order  that 
the  proceeding  be  effective  as  against  a  subtenant,  so  as  to  .ius- 
tify  his  expulsion  thereunder,  he  must  be  a  party  to  the  pro- 
ceeding,^38  unless  the  sublease  was  made  to  him  pendente  lite.^^^ 
Such  a  rule  does  not  apply  to  persons  who  are  not,  technically 
speaking,  in  possession  of  the  premises,  but  arc  there  merely  as 
members  of  the  tenant's  family,  or  as  guests  or  servants,  and 
they  may  be  expelled  under  the  process  issued  on  the  judgment 
in  the  proceeding,  although  not  parties  thereto.^'**^     Conceding 

13S  Leindecker  v.  Waldron,  52   111.  dence  that  he  had  leased  to  one  only 

283;    MoFes   v.   Loomls,   55   111.  App.  and  that  the  latter  had  subleased  to 

342;    Bagley  v.   Sternberg,   34  Minn,  the  others. 

470,  26  N.  W.  602;  Hill  v.  Stocking,  That    the    original    lessee    wrong- 

6  Hill  (N.  Y.)  314,  41  Am.  Dec.  748;  fully  holding  over  cannot  defend  on 

Sims  v.  Humphrey,  4  Denio  (N.  Y.)  the    ground    that   he   has    subleased 

185;  Stirliweather  v.  Seeley,  45  Barb,  parts  of  the  land  and  that  the  sub- 

(N.  Y.)  1G4;  Croft  v.  King,  1  City  Ct.  lessees  are  not  parties,  see  Tucker  v. 

R.  (N.  Y.)  157,  8  Daly,  265.     On  the  McClenney,  103  Mo.  App.  318,  77  S. 

other  hand,  in   Stewart  v.   Jackson,  W.  151. 

181  Pa.  549,  37  Atl.  518,  it  is  as-  i3»  Lelndecker  v.  Waldron,  52  111. 
serted  that  a  subtenant  can  be  eject-  283;  Bagley  v.  Sternberg,  34  Minn, 
ed  on  a  judgment  against  the  ten-  470,  26  N.  W.  602. 
ant  under  whom  he  claims.  And  That  a  receiver  is  appointed  In  a 
it  is  so  decided  in  Synod  of  Toronto  suit  to  fcrcniose  a  mortgage  on  the 
v.  P^lsken,  29  Ont.  738.  In  Dan  forth  leasehold  does  not  affect  the  validity 
v.  Stratton,  77  Me.  200,  it  was  held  of  a  subsequent  judgment  in  a  sum- 
that  one  in  possession  as  cestui  que  mary  proceeding  previously  institut- 
trust,  the  tenant  being  trustee,  could  ed,  though  no  notice  is  served  on 
be  removed  under  an  order  of  resti-  the  receiver.  Woodward  v.  Wina- 
tution  against  the  tenant,  and  this  hill,  14  Wash.  394,  44  Pac.  860. 
also,  perhaps,  involves  a  view  con-  "o  Bagley  v.  Sternberg,  34  Minn, 
trary  to  that  stated  in  the  text,  since  470,  26  N.  W.  602;  Ennis  v.  Lamb, 
a  cestui  que  trust  in  possession  is  f re-  10  111.  App.  (10  Bradw.)  447;  Croft 
quently  to  be  regarded  as  a  ten-  v.  King,  1  City  Ct.  R.  (N.  Y.)  157, 
ant  of  the  trustee  (ante,  §  42).  8  Daly,  265.     In  Miller  v.  White.  80 

It  was  held,  under  the  New  York  111.  580,  it  was  held  that  one  who  was 

statute,  that  a  person  claiming  pos-  living  on  the  premises  with  the  les- 

session  as  subtenant  could  intervene  see,  apparently  as  a  member  of  his 

and  answer.     Kiernan  v.  Cashin,  92  household,  could  not  assert  that  she 

N.  Y.  Supp.  255.  should  have  been  a  party  to  the  pro- 

In  Butterfield  v.  Kirtley,  114  Iowa,  ceeding    as    being    a    sublessee,    the 
520,   87  N.  W.   407,  it  was  in  effect  landlord  having  no  means  of  know- 
decided  that,  though  the  complainant  ing  of  the  sublease,  which,  if  It  ex- 
alleged  a  lease  to  all  the  defendants,  isted  at  all,  was  absolutely  secret. 
he  could  recover  against  all  on  evi- 


§  273  BY  AND  AGAINST  WHOM  MAINTAINABLE.  l'74l 

that  a  subtenant  is  a  necessary  party,  a  principal  tenant  who  is 
not  the  original  lessee,  that  is,  one  to  whom  the  leasehold  has 
been  assigned,  is  a  fortiori  not  affected  by  the  proceeding,  if  not 
a  party  thereto.^^* 

The  question  whether  the  original  lessee  is  a  necessary  party 
when  he  is  not  in  possession,  or  entitled  to  possession,  he  having 
made  a  sublease  to  another,  has  apparently  not  been  decided,^*^ 
but  that  he  is  a  proper  codefendant  along  with  his  subtenant  has 
been  explicitly  decided  in  one  or  two  cases,^^^  and  assumed  in 
others,^'*^  and  it  is  no  doubt  the  usual  practice  to  make  him  a 
party  to  the  proceeding,  although  he  has  subleased.  If  the  sum- 
mons is  directed  to  the  lessee  as  well  as  to  the  subtenant,  it  should, 
it  has  been  said,  be  served  on  botli.^^^  One  who  has  assigned 
the  leasehold  and  relinquished  possession  to  his  assignee  is,  it 
seems,  not  a  necessary,  nor,  indeed,  a  proper,  party.^^^ 

Since  the  proceeding  involves  only  the  question  whether  the 
defendant's  right  of  possession  under  the  lease  has  come  to  an  end, 

141  An  assignee  not  in  possession  statute.  In  Emerick  v.  Tavener,  9 
has  been  regarded  as  not  a  neces-  Grat.  (Va.)  220,  58  Am.  Dec.  217,  a  de- 
sary  party  (Malioney  v.  Hoffman,  r^H  cision  to  this  effect  is  based  on  the 
Misc.  217,  109  N.  Y.  Supp.  13;  Ruben-  rule  recognized  at  common  law  in 
stein  V.  Rosenthal,  50  Misc.  313,  98  ejectment  proceedings  (AdamF, 
N.  Y.  Supp.  681.  See  Park  Laundry  Ejectment,  130,  23^;  Roe  v.  Wiggs,  2 
Co.  V.  Sassone,  108  N.  Y.  Supp.  725),  Bos.  &  P.  [N.  R.]  330;  Pleasant  v. 
and  a  mortgagee  of  the  leasehold  has  Benson,  14  East,  234),  which  was 
been  similarly  regarded  (Ruben-  based  on  the  ground  that  the  land- 
stein  V.  Rosenthal,  50  Misc.  313,  98  lord  should  be  able  to  subject  the 
N.  Y.  Supp.  681).  original   tenant  to  the  costs  of  the 

1*2  In  Rehm  v.  Halverson,  197  111.  proceeding  for  possession  in  case  he 
378,  64  N.  E.  388,  it  was  held  that  sublets  to  a  pauper, 
the  lessee  having  made  a  surrender  i**  Leindecker  v.  Waldron,  52  Til. 
of  his  interest,  he  was  not  a  neces-  283;  Judd  v.  Arnold,  31  Minn.  430, 
sary  party  to  a  proceeding  to  expel  18  N.  W.  151;  Middlebury  College 
his  lessee,  the  subtenant,  although  v.  Lawton,  23  Vt.  688;  Iburg  v.  Fitch, 
the  statute  expressly  authorizes  the  57  Cal.  189;  Pardee  v.  Gray,  66  Cal. 
joinder  of  such  parties  as  defend-  524,  6  Pac.  389.  See  post,  at  notes 
ants.  163,   164. 

143  It  is  so  asserted  without  discus-  145  Matter  of  Glenn,  1  How.  Pr. 
Bion  in  Fletcher  v.  Fletcher,  123  Ga.    (N.  Y.)   213. 

470,  51  S.  E.  418.     In  Espen  v.  Hinch-       i46  See  Ben  Lomond   Wine  Co.   v, 
liffe,  131  111.  468,  23  N.  E.  592,  it  is    Sladky,  141  Cal,  619,  75  Pac.  332. 
Bo  decided,  on  a  construction  of  the 


1742  SUMMARY  PROCEEDINGS.  §  27'1 

persons  under  whom  the  alleged  tenant  may  claim  possession, 
as  having  a  paramount  title,  are  not  proper  parties  defendant.^*^ 
p.  Against  corporation.  A  statute  authorizing  a  proceeding 
against  "any  person"  has  been  held  to  authorize  it  against  a 
municipal  corporation.' ^^  And  it  has  been  held  that  the  fact  that 
the  statute  provides  fcr  personal  service  on  the  tcnint,  or  for 
substituted  service  in  case  of  absence  from  his  "residence,"  does 
not  preclude  a  proceeding  against  a  corporation,  public  or  pri- 
vate.149 

§  274.     Grounds  for  proceeding. 

a.  Holding  over  by  tenant — (1)  After  expiration  of  tenancy. 
Under  the  statutes  of  most  jurisdictions  a  summary  proceeding 
lies  in  case  one  who  entered  under  a  lease  wrongfully  remains  in 
possession  after  the  expiration  of  the  term  or  tenancy.  If  he  re- 
mains by  permission  of  the  person  under  whom  he  previously 
held,  under  an  extension  or  renewal  of  the  lease,  his  possession 
is  obviously  rightful,  and  the  proceeding  will  not  lie.^^"^  He  may 
also  show  in  defense  that  he  holds  under  a  third  person  to  whom 
a  lease  was  made  to  commence   at  the  expiration   of  his   own 

The  acceptance  by  the  landlord  of  rent  accruing  subsequently 
to  the  expiration  of  the  original  term  would  ordinarily  show,  as 
against  him,  an  extension  of  the  tenancy  as  a  periodic  holding,!^:^ 
and  preclude  the  maintenance  of  the  proceeding,  but  no  such  in- 

1*7  Grizzard  V.  Roberts,  110  Ga.  41,        ibo  Uridas   v.   Morrell,   25   Ca.   31; 

35  S.  E.  291.  Sloat   v.   Ror.ndtree,    87   Ga.    470,    13 

148  Rains  v.  City  of  Oshkosh,  14  s.  E.  637;  Hamline  v.  Engle,  14  Ind. 
Wis.  372.  App.  685,  42  N.  E.  760,  43  N.  E.  463; 

149  Facts  Pub.  Co.  V.  Felton,  52  N.  jy^d  v.  Arnold,  31  Minn.  430,  18  N 

J.  Law,  161,   19  Atl.   123;    Brown  v.  w    -,ri      -pT^ot    +>,,•=,    rv,o      v       v 

'  w.    151.     That   this   may   be   shown 

City    of    New    York,    66    N.    Y.    385.  ,,„,^  ,  ^      •  ,  ..      ,. 

■^  .  ^  .  under  a  general  denial,  see  Hamline 

That  the  proceeding  may  be  main-  „    ^     ,      ,.   .   ^     . 

,   .      ,  .     ,  .V,-  ^-  Engle,  14  Ind.  App.  685,  42  N    E. 

tamed    against   a    quasi    public    cor-  ..„    %. 

poration  engaged  in  supplying  elec  ''''    ''   ^-    ^-   ''^-     ^ut    Ferine   v. 

tricity,  see  Bodwell  Water  Power  Co.  ^'^^^'    ^6   Cal.   446,    6   Pac.    84,   Is 

V.  Old  Town  Elec.  Co.,  96  Me.  117,  51  <^o°tra. 

Atl.  802.     And  that  it  may  be  main-  ^"  Dickson    v.    Lehnen,    37    Fed. 

tained  against  a  city  is  assumed  in  319. 

City   of   Bay   St.   Louis   v.   Hancock  102  See  ante,  §  210  a. 

County,  80  Miss.  364,  32   So.  54. 


§  274 


HOLDING  OVER  BY  TENANT.  1743 


ference  is  to  be  drawn,  it  has  been  decided,  from  the  acceptance 
of  rent  for  the  time  during  which  the  tenant  may  retain  possession 
by  reason  of  his  having  given  a  bond  for  appeal  from  a  judgment 
of  dispossession,! 53  or  by  reason  of  an  injunction  against  the  en- 
forcement of  such  judgment.!^* 

The  proceeding  cannot  be  maintained,  as  against  a  tenant  hold- 
ing over,  if  the  tenant  relinquishes  possession  after  the  tenancy 
has  come  to  an  end,  and  thereafter  wrongfully  resumes  posses- 
sion.is^ 

The  burden  is  on  the  plaintiff  to  show  the  character  of  the 
tenancy  as  originally  created,  and  that  it  has  come  to  an  end.^^® 
After  he  does  this,  it  is  for  the  defendant  to  show  that,  by  reason 
of  a  renewal  or  otherwise,  he  has  a  right  to  continue  in  possession 
after  the  expiration  of  the  original  tenancy. ^^"^ 

It  has  been  decided  in  one  state  that  a  mere  covenant  to  renew, 
even  though  a  renewal  has  been  requested  by  the  tenant  and  re- 
fused, does  not  give  the  tenant  any  right  or  interest  in  the  prem- 
ises beyond  the  term,  which  will  constitute  a  defense  to  a  pro- 
ceeding to  recover  possession.^^**  But  a  different  view  has  been 
taken  in  states  where  equitable  defenses  are  allowed,!^^  as  it  w^ould 
be,  presumably,  in  states  where  the  courts  show  a  tendency  to 
regard  such  a  covenant  as  in  itself  effecting  a  renewal  or  exten- 
sion of  the  lease.160  jj^  Illinois  it  has  been  held  that  the  lessor's 
refusal  to  sign  a  renewal  lease,  in  accordance  with  his  covenant 
to  renew,  constitutes  a  defense  to  a  proceeding  brought  under  a 
statute  allowing  the  proceeding  against  a  lessee  who  holds  posses- 
sion "without  right"  after  termination  of  the  tenancy.^^^ 

That  the  lease  provides  that  the  landlord  shall,  at  the  expira- 

153  Hopkins  v.  Holland,  84  Md.  84,  is?  Brown  v.  Keller,  32  111.  151,  83 
35  Atl.  11.  Am.   Dec.   258;    Jefferson  v.   Ummel- 

154  Curd  V.  Farrar,  47  Iowa,  504,  mann,  56  Mo.  App.  440;  Weinhand- 
29  Am.  Rep.  492.  ler   v.    Eastern   Brew.   Co.,   46    Misc. 

155  Harrington  v.  Watson,  11  Or.  584,  92  N.  Y.  Supp.  792;  Lutz  v. 
143,  3  Pac.  173,  50  Am.  Rep.  465.  See  Wainwright,  193  Pa.  541,  44  Atl.  565. 
Walls  V.  Preston,  28  Gal.  224.  iss  piatt   v.   Cutler,   75   Conn.   183, 

156  Miller   v.    Lowe,    14    Ann.    Cas.  52    Atl.    819. 

343,   86  N.   Y.   Supp.   16;    Gossett  v.  i59  See  post,   note  385. 

Fox,  90  N.  Y.  Supp.  477;  Weinhauer  iso  See  ante,  §  218,  at  note  4. 

V.  Eastern  Brew.  Co.,  85  N.  Y.  Supp.  lei  Holt  v.  Nixon,  73  C.  C.  A.  268, 

354;   Seidel  v.  Sperry,  26  Pa.  Super.  141   Fed.   952. 

Ct.   649. 


1744  SUMMARY  PROCEEDINGS.  §  274 

tion  of  the  term,  either  buy  or  allow  the  removal  of  the  tenant's 
property,  has  been  held  not  to  extend  the  time  of  the  expiration 
of  the  term  for  this  purpose.^  ^2 

It  has  been  decided  to  be  no  defense  to  a  proceeding  to  recover 
possession  after  the  expiration  of  the  term  that  the  lessee,  without 
the  lessor's  consent,  sublet  parts  of  the  premises  to  third  persons, 
who  were  not  made  parties  to  the  proceeding.^'^  But  it  has  been 
held  that  a  tenant  is  not  liable  to  a  judgment  against  him  in  such 
a  proceeding  if,  after  the  expiration  of  the  terra,  he  puts  a  stran- 
ger in  possession,  there  being  no  concerted  action  between  them  to 
wrongfully  withhold  the  property  from  the  Inndlord.^^"* 

In  one  state  the  statute  provides  for  a  proceeding  against  a 
tenant  holding  over  only  if  there  was  a  "certain"  rent  re- 
f^erved,^"^  and  there  have  been  several  decisions  as  to  what  con- 
stitutes certainty  for  this  purpose.^'^^ 

The  expiration  of  the  tenancy  by  reason  of  a  special  limitation 
will  justify  the  institution  of  a  proceeding  of  tliis  character  to 
recover  possession,^'^^  but,  by  the  weight  of  authority,  the  breach 
of  a  condition  subsequent  does  not  terminate  the  tenancy,  so  as  to 
bring  the  ease  within  the  operation  of  the  statute.^ ^^ 

(2)  After  surrender.  There  are  a  number  of  cases  in  which  it 
appears  to  have  been  assumed  that  a  statute,  authorizing  the 
proceeding  against  a  tenant  after  the  expiration  of  his  term,  au- 
thorizes it  in  case  of  the  destruction  of  his  term  by  a  surrender 
made  by  him  to  the  landlord.^^^'^^^ 

ic2Bodwell  Water  Power  Co.  v.  ises.  Shaffer  v.  Sutton,  5  Bin.  (Pa.) 
Old  Town  Elec.  Co.,  96  Me.  117,  51  228.  In  another  casp  it  was  held 
Atl.  802.  that  an  agreement  to  render  services 

103  Tucker  v.  McClenney,  103  Mo.  as  "foresinger  and  organist"  did  not 
App.  318,  77  S.  W.  151.  constitute  an  agreement  for  a  "eer- 

ie* St.  Louis  Brew.  Ass'n  v.  Nieder-  tain"  rent.  Hohly  v.  German  Re- 
lueeke,  102  Mo.  App.  303,  76  S.  W.  formed  Soc,  2  Pa.  293.  A  demise 
645.  "at  the  yearly   rent  of  the  interest 

165  Pennsylvania  Act  March  21,  and  taxes  accruing  thereon"  did  not 
1772.  See  Blashford  v.  Duncan,  2  reserve  a  certain  rent,  it  not  being 
Serg.  &  R.  (Pa.)  480;  McGee  v.  Fes-  stated  what  the  interest  was  to  ba 
sler,  1  Pa.  126;  Graver  v.  Fehr,  89  calculated  on.  Davis  v.  Davis,  115 
Pa.  460.  Pa.  261.  7  Atl.  746. 

166  It  was  held  that  rent  was  cer-        lev  See  post,  at  note  217. 
tain  within   the  act   though   it  was       les  See  post,  at  note  216. 
payable  in  "taxes  and  daubing  and       16^1T0  Kower  v.  Gluck,  33  Cal.  401; 
chinking"   the   house   on   the   prem-   Elliott   v.   Round   Mountain    Coal   & 


§  274  HOLDING  OVER  BY  TENANT.  1745 

(3)  Notice  to  quit  as  prerequisite — (a)  Distinguished  from 
notice  terminating  tenancy.  The  statute  frequently  requires 
a  notice  to  quit  or  a  demand  for  possession  as  a  prerequisite  to  a 
proceeding  to  recover  possession  against  a  tenant  holding  over. 
Such  a  notice  to  quit,  constituting  a  prerequisite  to  a  proceeding 
of  this  character,  is  to  be  distinguished  from  that  which  is  neces- 
sary, at  common  law,  to  terminate  a  periodic  tenancy,^ '^^  or, 
under  the  statutes  of  a  number  of  states,  to  terminate  a  tenancy 
at  will.^'^2  In  gome  states,  however,  the  statutes  fail  to  make 
this  distinction,  providing  as  a  prerequisite  to  a  summary  pro- 
ceeding against  a  periodic  tenant  or  a  tenant  at  will,  as  distinct 
from  a  tenant  for  a  term,  that  a  notice  to  quit  of  a  certain  length 
of  time  shall  be  given.^'^^  That  is,  in  naming  the  prerequisites  to 
a  summary  proceeding  against  one  who  holds  oxer  after  the  ter- 
mination of  his  tenancy,  they  include  a  statement  of  the  notic<j 
necessary  in  order  to  terminate  the  tenancy,  and  the  questioii 
might  arise  whether  such  a  provision  as  to  notice  applies  in  case 
the  landlord,  instead  of  bringing  a  summary  proceeding  to  ob- 
tain possession,  brings  an  action  of  ejectment.  The  distinction 
referred  to,  between  the  notice  necessary  to  terminate  the  tenancy 
and  that  to  lay  a  foundation  for  the  summary  proceeding,  has 
ordinarily,  however,  been  fully  recognized  by  the  courts,  and  it 
has  been  expressly  decided  that  the  giving  of  a  notice  of  the 
former  class  does  not  dispense  with  the  necessity  of  one  of  the 
latter  class.^'^^     In  one  state,  however,  the  notice  terminating  tho 

Iron    Co.,    108   Ala.    640,   18    So.    689  ton,  28  Cal.  224.     And  see  Rehm  v. 
("Cancellation  of  lease"  by  mutual  Halverson,  197  111.  378,  64  N.  E.  388, 
consent) ;   Clator  v.  Otto,  38  W.  Va.  ante,  note  142. 
89,  18  S.  E.  378;  Mundy  v.  Warner,  61  i^i  See  ante,  §  196  c. 
N.  J.  Law,  395,  39  Atl.  697;   McClel-  1^2  See   ante,   §   196   b. 
land  V.  Wiggins,   109  Iowa,   673,   81  ^^^  New   York   Laws    1889,   c.    357 
N.  W.  156.     Compare  Doe  d.  Tindal  (See  ante,  §  196  c,  note  54);   Utah 
V.  Roe,  2  Bam.  &  Adol.  922.  Comp.    Laws    1907,    §    3575    (Fifteen 
After  the  tenant  has  relinquished  days'  notice  in  case  of  periodic  ten- 
possession,  which  is  accepted  by  the  ancy,  five   days   in   case  of  tenancy 
landlord,   a   surrender   by   operation  at    will) ;     Washington,    Ball.    Ann. 
of  law  being  thus  effected,  and  the  Codes   &   St.   §    5527    (Twenty   days- 
relation  of  landlord  and  tenant  be-  notice  in  case  of  periodic  tenancy), 
ing    thereby    terminated,    the    pro-  And  see  Maine  Rev.  St.  1903,  c.  96. 
ceeding  will  not  lie  against  the  ten-  §  2. 

ant  because  he   thereafter  re-enters  174  McDevitt   v.   Lambert,   80   Ala. 

without  permission.     Walls  v.  Pres-  536,  2  So.  438;   Ross  v.  Gray  Eagle 

L.  and  Ten.  110.  t 


1746  SUMMARY  PROCEEDINGS.  §  274 

tenancy  is  rofrarded  as  a  sufficient  compliance  with  the  statute 
requiring  a  demand  for  possession  as  a  prerequisite  to  a  summary 
proceeding.i'^^ 

A  requirement  of  a  notice  of  a  certain  time  in  order  to  ter- 
minate a  tenancy  by  reason  of  a  default  by  the  tenant  has  no  ap- 
plication when  the  tenancy  is  terminated  by  reason  of  the  lessor's 
sale  of  the  property,  in  accordance  with  a  stipulation  of  the  lease 
that  upon  a  sale  the  lessee  will  relinquish  possession. ^'^^ 

(b)  Statutory  requirements.  The  statutes  of  a  number  of 
states  omit  any  requirement  of  a  notice  to  quit  or  demand  for 
possession  as  a  prerequisite  to  a  proceeding  to  recover  possession 
on  the  termination  of  the  tenancy,^^'  and,  in  the  absence  of  any 
such  statutory  requirement,  none  is  recognized  by  the  courts.^ '^^ 

Coal  Co.   (Ala.)   46  So.  564;  King  v.  its  McKlssick    v.    Ashby,    98    Cal. 

Connolly,    51    Cal.    181;     Martin    v.  422,  33  Pac.  729;  Earl  Orchard  Co.  v. 

Splivals,  56  Cal.  28;  Button  v.  Colby,  Fava,    138    Cal.    76,    70    Pac.    1073; 

35  Me.  505.  Harrison     v.     Marshall,     7     Ky.     (4 

ITS  Morris  Canal  &  Banking  Co.  v.  Bibb.)    524;    Andrews    v.    Erwin,   25 

Mitchell,  31  N.  J.  Law,  99;  Wartman  Ky.   Law  Rep.   1791,   78   S.   W.   902; 

V.   Richards,   54  N.  J.  Law,  525,   24  Webb  v.  Heyman,  40  111.  App.  335; 

Atl.  576;  Quldort  v.  Bullitt,  60  N.  J.  Young  v.  Smith,  28  Mo.  65,  75  Am. 

Law,  119,  36  Atl.  881.  Dec.  109;   Leahy  v.  Lubman,  67  Mo. 

In  Wolfer  v.  Hurst,  47  Or.  156,  80  App.  191;  Hollis  v.  Pool,  44  Mass.  (3 
Pac.  419,  82  Pac.  20,  it  was  held  that,  Mete.)  350;  McFarland  v.  Chase,  73 
in  view  of  other  statutes  bearing  on  Mass.  (7  Gray)  462;  Bierkenkamp  v. 
the  matter,  the  notice  to  quit  named  Bicrkenkamp,  88  Mo.  App.  445;  Ray 
in  a  statutory  provision  declaring  v.  Blackman,  120  Mo.  App.  497,  97 
that  "a  continuance  in  possession  S.  W.  212;  Moore  v.  Smith,  56  N.  J. 
after  notice  to  quit  at  the  expiration  Law,  446,  29  Atl.  159;  Young  v. 
of  the  time  limited  in  a  lease  shall  Smith,  28  Mo.  65,  75  Am.  Dec.  109; 
constitute  an  unlawful  holding  by  Hendrick  v.  Cannon,  5  Tex.  248; 
force"  was  required  as  a  means  of  Morris  v.  Healy  Lumber  Co.,  33 
terminating  the  tenancy,  and  not  as  Wash.  451,  74  Pac.  662. 
a  part  of  the  procedure  for  forcible  If  the  statute  authorizes  a  pro- 
detainer,  ceeding  only   upon   the   tenant's   re- 

1T6  Buhman    v.    Nickels    &   Brown  fusal    to    deliver    possession,    a    de- 

Bros.,  1  Cal.  App.  266,  82  Pac.  85.  mand    is    evidently    necessary.     See 

1T7  The  necessity  for  this  purpose  Allison    v.    Thompson,    11    Ky.     (1 

of  a  demand  or  notice  is  expressly  Litt.)    31;   Ewing  v.  Bowling,  9  Ky. 

dispensed    with    by    some    statutes.  (2  A.  K.  Marsh.)   35;   Den  d.  Puelps 

See  niinois.  Kurd's  Rev.  St.  1905,  c.  v.  Long,  31  N.  C.  (9  Ired.  Law)  226; 

80,   §   7    (When  tenancy  terminated  Shepherd   v.   Thompson,   65   Ky.    (2 

by  notice);  Ma-ineReY.  St.  1903,  §§  1,  Bush)    176.     But  the  assertion  of  a 

2;    Tennessee,  Shannon's  Code  1896,  claim  to  hold  adversely  to  the  land- 

§  5100.  lord  was  regarded  as  suflBcient  evl- 


.  274  HOLDING  OVER  BY  TENANT.  1747 

Some  statutes  require  a  demand  of  possession,  without  naming 
any  number  of  days/'^  and  others  require  a  notice  to  quit  of  a 
certain  number  of  days.^^^^ 

(c)  Time  and  length  of  notice.  Occasionally  the  statutes 
have  been  construed  as  requiring  that  the  notice  to  quit,  necessary 
as  a  prerequisite  to  a  summary  proceeding  against  a  tenant  hold- 
ing over,  be  given  after  the  end  of  the  term,i»i  it  being  said  in  one 
case  that  no  one  should  be  put  in  the  wrong  by  a  demand  which 
another  had  no  right  to  make,  of  a  thing  which  he  had  no  right  to 
receive  or  possess.i82     other  statutes,  requiring  a  notice  to  quit 

dence  of  such  refusal.  Hoskins  v.  served  three  days  before  proceeding 
Helm,  14  Ky.  (4  Litt.)  309,  14  Am.  commenced);  Oklahoma  ReT.  St. 
j)gc.  133.  1903,  §  5089   (Notice  to  leave  served 

Though  no  notice  is  necessary,  the  three  days  before  proceeding  corn- 
landlord  cannot,  it  seems,  notify  menced) ;  Oregon,  Bell.  &  C.  Codes, 
the  tenant  to  leave  on  a  certain  day.  §  5755  (Notice  to  quit  served 
and  bring  the  proceeding  without  ten  days  before  proceeding  com- 
waiting  till  the  expiration  of  that  menced,  or  ninety  days  in  case  of 
day.  Decker  v.  McManus,  101  Mass.  agricultural  tenancy) ;  Pennsyl- 
g3  vania,   Pepper  &  Lewis'   Dig.  Laws, 

1T9  Alabama    Code    1907,    §    4263;    "Landlord    &    Tenant,"     §§     25,     28 
Arkansas,   Kirby's   Dig.    St.   1904,    §    (Three  months'  notice  of  intention 
3630;    Georgia   Code    1895,    §    4813;    to  resume  possession) ;  South  Dako- 
Sout'h    Carolina    Civ.    Code    1902,    §    ta,     Justices'     Code,     §     44     (Three 
2423;  Teira.s  Rev.  St.  1895,  arts.  2519,    days'    notice    to    quit);     Wisconsin 
2521.'    See  Durie  v.   McLish,  2   Ind.    Rev.   St.  1898,   §   3358    (Three   days' 
T   610,  53  S.  W.  437,  so  construing  a   notice   to    deliver    possession) ;    Wy- 
particular  statute  in  this  respect.       oming  Rev.  St.  1899,  §  4487   (Notice 
ISO  Connecticut    Gen.    St.    1902,    §§    to    leave    served    three    days   before 
1078,   1079    (Notice   of  at   least   ten    proceeding  commenced), 
days'  before    end    of    lease    or   time       isi  Rogers  v.  Hackett,  49  Cal.  121; 
named  for  quitting,  unless  waived  in   Miller  v.  Lampson,  66  Conn.  432,  34 
lease);     Iowa     Code    1897,     §     420S    AU.  79;  Prickett  v.  Ritter,  16  111.  96; 
(Three  days'  notice  in  writing.     See    Doran  v.  Gillespie,  54  111.  366;  Clapp 
Kellogg  V.  Groves,  53  Iowa,  95.  5  N.    v.  Paine,  18  Me.  264. 
W.    517);    Kansas   Gen.   St.    1905,    §       i82  Prickett   v.    Ritter,   16    111.    96. 
5843     (Notice    to    quit    to    be    given   But   such   a   statement  is   evidently 
three  days  before  commencement  of   out  of  harmony  with  the  common- 
proceeding) ;     Maryland    Code    Pub.    law    requirement    of   notice    to    ter- 
Gen.   Laws   1904,   art.   53,   §   1;    Ne-   minate  a  periodic  tenancy.     The  ten- 
l>raska  Comp.  St.  1905,  §  7529  (Notice  ant  is  not,  as  a  matter  of  fact,  put 
to  quit  to  be  given  three   days  be-   in  the  wrong  by  the  demand  or  no- 
fore  proceeding  commenced);  North   tice  in  either  cnse.    He  puts  himself 
Dakota    Rev.    Codes    1905,     §    8407    in  the  wrong.     The   demand   is   fof 
(Three  days'  notice  to  quit);    Ohio   delivery     of     the     possession     only 
Rev.  St.  1906,  §  6602  (Notice  to  leave 


1748  SUMMARY  PROCEEDINGS.  §  274 

as  a  prerequisite  to  the  proceeding,  have  been  regarded  as  satis- 
fied by  a  notice  given  before  the  expiration  of  the  term,i»3  ^his 
view  being  in  one  case  based  on  the  theory  that  the  legislature 
cannot  be  presumed  to  have  intended  to  make  any  change  in  the 
common-law  notice  to  quit;^^^  while  in  another  case  it  is  said  that 
the  object  of  the  statute  is  to  provide  merely  for  notification  to 
the  tenant  of  the  expiration  of  the  lease  and  the  landlord's  de- 
mand for  possession,  so  that  he  may  have  the  time  named  for 

the  running  of  the  notice  in  which  to  make  preparations  to  va- 
cate.^^^ 

In  at  least  two  states  the  statute  expressly  requires  the  landlord, 
in  order  to  be  able  to  maintain  the  proceeding  against  one  hold- 
ing over  after  the  term,  to  have  given  a  notice  to  quit  a  pre- 
scribed period  before  the  end  of  the  term."^*'  And  under  such  a 
provision  the  notice  must,  it  has  been  held,  require  the  tenant  to 
leave  at  the  end  of  the  term.^s^ 

The  fact  that  the  notice  given  is  longer  than  th?t  named  in  the 
statute  is  immaterial,i88  but  a  notice  given  before  the  end  of  the 
term  and  requiring  the  tenant  to  leave  fortlnvith  has  been  held 
insufficient,  it  not  apprising  the  tenant  of  the  grounds  of  the 
landlord's  claim  to  possession.^8»  The  fact  that  the  notice  in 
terms  required  the  tenant  to  quit  within  a  period  less  than  that 

when  the  person  making  it  becomes  again   and    repossess   such    demised 

entitled  to  the  possession.  premises,       having       given       three 

183  Townly  v.  Rutan,  20  N.  J.  Law.  months'  notice  of  such  intention  to 
604;  Drain  v.  Jacks,  77  Iowa,  629,  42  his  lessee,"  etc.).     See  Rich  v.  Key- 
N.  W.  460;    Hawley  v.  Robeson,  14  ser,  54  Pa.  86,  93  Am.  Dec.  675. 
Neb.  435,  16  N.  W.  438;   Leutzey  v.        is?  Borough     of     Phoenixville     v. 
Herchelrode,  20  Ohio  St.  334.  Walters,  29  Wkly.  Notes  Cas.   (Pa.) 

184  Hazeltine  v.  Colburn,  31  N.  H.  483.  If  the  notice  in  terms  so  re- 
466.  quires,   the   fact   that   a   mistake   Is 

185  McLain  v.  Calkins,  77  Iowa,  made  in  naming  the  date  of  the  end 
468,  42  N.  W.  373.  of   the  term    has  been   regarded   as 

186  Maryland  Code  Pub.  Gen.  Laws  immaterial.  Wenger  v.  Raymond, 
1904,  art.  53,  §  1  (Where  the  lessor  104  Pa.  33;  Jalass  v.  Young,  3  Pa. 
or  his  assigns  "shall  give  notice  in  Super.  Ct.  422,  40  Wkly.  Notes  Cas. 
writing   one   month    before    the    ex-  41. 

piration    of   said    term");    PennsyJ-  iss  Shuver     v.      Klinkenberg,     67 

rania.  Pepper  &  Lewis'  Dig.   Laws,  Iowa,    544,    25    N.    W.    770;    Olds   v. 

"Landlord   &  Tenant,"  §   28    (If  the  Conger,  1  Okl.  232,  32  Pac.  337. 

lessor  "shall  be  desirous,  upon  the  iso  Connell   v.   Chambers,   22    Neb. 

determination  of  said  lease,  to  have  302,  34  N.  W.  636. 


§  274  HOLDING  OVER  BY  TENANT.  1749 

named  in  the  statute  for  the  notice  has  been  regarded  as  imma- 
terial, when  the  statutory  period  was  allowed  to  elapse  before  the 
bringing  of  suit  for  possession.^^^ 

The  question  whether  the  period  named  in  the  statute  has 
elapsed  between  the  giving  of  the  notice  and  the  commencement 
of  the  proceeding,  or  the  end  of  the  term,  as  the  case  may  be,  is 
one  of  the  computation  of  time,  to  be  determined,  it  seems,  by  the 
same  rules  as  apply  in  the  case  of  a  notice  to  quit  intended  to 
terminate  a  periodic  tenancy.^ ^^-^^^ 

(d)  Form  of  notice.  Unless  the  statute  expressly  provides 
for  a  written  notice  or  demand,  a  verbal  notice  is  sufficient.^ ^^  A 
requirement  of  a  written  demand  is  not  satisfied  by  reading  a 
written  demand  to  the  tenant,  the  intention  of  the  statute  being 
that  he  shall  have  a  writing  to  which  he  can  refer.^^"*  In  the 
absence  of  any  statutory  provision  as  to  the  form  of  the  notice,  no 
particular  form  would  ordinarily  be  required. ^^'^ 

The  notice  sufficiently  describes  the  premises  if  it  informs  the 
recipient  of  what  premises  possession  is  demanded. ^^^ 

(e)  Person  to  give  notice.  The  notice  must  be  given  by  the 
landlord  or  by  one  having  authority  to  act  for  him  in  that  re- 
gard,^^'^  and  if  required  to  be  in  writing  should  be  signed  by  the 
person  giving  it.^^^  If  the  notice  is  given  by  a  person  acting 
without  authority,  it  cannot  afterwards  be  ratified  by  the  landlord 
so  as  to  be  effective  against  the  tenant,i^^  the  rule  in  this  respect 

180  Chamberlin       v.       Brown,       2  sufBcient,   though   the   first   floor   of 

Doug.  (Mich.)  120.  the   building  on   the  lots  was  occu- 

101, 192  See  ante,  §  201.  pied  by  others. 

i93Thamm  v.  Hamberg,  2  Brewst.  197  See  Nixon  v.  Noble,  70  111.  32; 

(Pa.)    528.  Brahn  v.  Jersey  City  Forge  Co.,  38 

19*  Seem    v.    McLees,    24    111.    192.  N.  J.  Law,  74    (Notice  by  corporate 

See  Jenkins  v.  Jenkins,  63  Ind.  415,  officer). 

30  Am.  Rep.  229.  108  Ball  v.  Peck,  43  111.  482.     Com- 

ifs  See  Earl  Orchard  Co.  v.  Fava,  pare  ante,  §  199*-  at  note  130.    A  no- 

138  Cal.  76,  70  Pac.  1073.  tice  signed  "for  C.  M.  H.  by  W.  C.  P., 

190  Whipple  V.   Shewalter,  91   Ind.  an  authorized  agent,"  was  held  suffi- 

114;   Cummings  v.  "Winters,  19  Neb.  cient,  though  it  would  be  better,  it 

719,  28  N.  W.  302.     In   Dimmett  v.  was    said,    to    say    "   '      authorized 

Appleton,  20  Neb.  208,  29  N.  W.  474,  agent."     Reed  v.  Ha          .45  111.  40. 

It   was   held   that   a   notice   describ-  ifl<5  Ball  v.  Peck,  43  III.  482;  Brahn 

ing  the  property  demanded   by  giv-  v.   Jersey  City  Forge  Co.,  38  N.  J. 

ing   the   numbers   of   the    lots   was  Law,  74. 


1750  SUMMARY  PROCEEDINGS.  §  274 

being  the  same  as  that  which  applies  to  a  notice  intended  to  end 
the  tenancy.2*^^ 

It  has  been  said  that,  when  the  property  was  sold  by  a  contract 
giving  the  vendees  the  right  of  possession,  a  notice  to  quit  was 
properly  signed  and  caused  to  be  served  by  one  only  of  the  two 
vendees. 2°^ 

It  has  been  decided  in  one  state  that  the  landlord  may,  even 
though  he  has  conveyed  the  reversion,  give  notice  to  quit  on  be- 
half of  his  grantee.2'^2  Jq  ^j^at  jurisdiction,  no  doubt,  a  notice 
given  by  the  person  who  is  landlord  at  the  time  of  the  giving  ot 
the  notice  would  support  a  proceeding  by  one  to  whom  he  sub- 
sequently transfers  the  reversion.  Whether  that  would  be  the 
case  in  other  jurisdictions  does  not  appear. 

(f)  Service  of  notice.  The  statutes  of  a  number  of  states  con- 
tain specific  provisions,  more  or  less  elaborate,  as  to  the  mode  of 
sendng  the  notice  which  is  prerequisite  to  a  proceeding  for  pos- 
session.203 

The  notice  or  demand  may  be  served,  it  has  been  held,  by  leav- 
ing it  with  the  tenant's  wife  at  his  residence, 2'^"*  or  by  posting  it 
on  the  door  of  the  demised  premises,  w^hen  these  have  been  aban- 
doned by  the  tenant.^^s  A  notice  served  upon  one  of  two  colessees 
upon  the  premises  has  been  held  to  be  sufficient  as  to  both.^os 

The  notice  need  not  be  filed  with  the  justice  unless  the  statute 
so  requires. '°' 

Service  of  such  a  notice  is  no  doubt  to  be  proven  as  would  other 
notices  in  that  jurisdiction.     Unless  the  statute  provides  for  proof 

aooSee  ante,  §  198,  at  note  95.  Utah    Comp.     Laws    1907,    §    3578; 

201  Willis  V.  Weeks,  129  Iowa,  525,  Washinaton,  Ball.  Ann.  Codes  &  St. 
105  N.  W.  1012.  The  vendor,  in  §  5.529;  Wisconsin  Rev.  St.  1898,  § 
whom  was  apparently  the  legal  fee  3358;  Wyoming  Rev.  St.  1899,  §  4487. 
simple  title,  also  signed  the  notice.  204  Earl  Orchard  Co.  v.  Fava,  138 

202  Glenn  v.  Thompson,  75  Pa.  389.  Cal.  76,  70  Pac.  1073;  Beiler  v.  Dev- 
And  see  cases  cited  ante,  notes  100,  oil,  40  Mo.  App.  251;  Hazeltine  v. 
112.  Colburn,    31    N.    H.    466.     And    see 

203  California  Code  Civ.  Proc.  §  ante,  §  203.  Compare  Doran  v.  Gil- 
1162;   Ido'hn  Code  Civ.  Proc.  §  3977;  lespie,  54  111.  366. 

Kansas  r!?n.   St.   1905,  §  5397;    Mon-  203  Consolidated  Coal  Co.  v.  Schaef- 

tana   Rev.   Codes  Civ.    Proc.   1907,    §  er,  135  111.  210,  25  N.  E.  788. 

7272;     Ke'^)'^aska    Comp.     St.     1905,  206  Grundy    v.    Martin,    143    Mass. 

§  7527;  Vew  York  Code  Civ.  Proc.  §§  279,  9  N.  E.  647. 

2231,  2240;  Ohio  Rev.  St.  1906,  §  6602:  207  McLain  v.  Nurnberg,  16  N.  D. 

Oklahoma    Rev.    St.    1903.    §    5089;  144,  112  N.  W.  243. 


.  274  BREACH  OF  CONDITION.  1751 

by  a  return,  it  would  ordinarily  be  proven  by  the  testimony  of 
the  person  making  the  service.^o^  In  one  jurisdiction  it  is  held 
that  secondary  evidence  of  the  contents  of  a  written  notice  is  not 
admissible  unless  notice  to  produce  has  been  given.209 

(g)  Waiver  of  notice.  It  has  occasionally  been  decided  that 
the  tenant  may  waive  the  giving  of  the  statutory  notice,  either  by  a 
provision  to  that  effect  in  the  lease  or  other^vise,2lo  but  m  one 
state  a  contrary  view  has  been  asserted-^" 

The  rule  which  applies  in  the  case  of  a  notice  necessary  to 
terminate  a  tenancy,  that  it  is  waived  by  the  tenant's  disclaimer 
of  the  tenancy ,212  has  been  decided  to  apply  to  such  a  notice  as 
is  here  under  discussion.^i^  But  the  contrary  has  also  been  de- 
cided ^i^  and  it  seems  somewhat  difficult  to  justify  the  applica- 
tion  of  a  rule,  based  on  the  theory  that  one  denying  the  tenancy 
cannot  claim  a  notice  as  tenant,  to  the  case  of  a  notice  based  on 
the  theory  that  the  tenancy  has  ceased  to  exist. 

A  notice  given  by  the  landlord  is  not,  it  has  been  held,  m  effect 
withdrawn  by  him,  because  he  allows  a  year  to  elapse  without 
instituting  the  proceeding.2i5 

b.  Breach  of  condition.  There  are  in  several  states  decisions 
that  a  statute  authorizing  a  summary  proceeding  upon  the  "ex- 
piration" of  the  lease  or  term  does  not  authorize  it  for  the  pur- 
pose of  enforcing  a  right  of  forfeiture  by  the  lessor  for  the  breach 

208  Ball  V  Peck,  43  111.  482;  Chung  In  Clapp  v.  Paine,  18  Me.  264,  it 
Yow  V.  Hop  Chong,  11  Or.  220.  4  Pac.    is  said  that  if  the  tenant  forcibly  re- 


326 


sists  the  landlord's  attempt  to  enter 

209  King  V.  Boiling,  77  Ala.  594.  54  on  the  expiration  of  the  lease,  no  no- 
Am  Rep  80.  Compare  ante,  §  199,  tice  is  necessary,  provided  such  re- 
at  notes  148-151;  §  203,  at  notes  228-  sistance  was  before  the  institution 
229a  '  of  the  proceeding. 

210  Hutchinson  v.  Potter,  11  Pa.  2x1  Wolfer  v.  Hurst,  47  Or.  156,  82 
472     (Waiver     in     lease,     dictum) ;    Pac.  20. 

Wilke  V.  Campbell,  5  Pa.  Super.  Ct.       212  See  ante,  §  192. 

618-    Gault  V.   Neal.   6   Phila.    (Pa.)        213  Brown  v.  Keller.  32  111.  151,  83 

61-  Mill  Creek  Coal  Co.  v.  Andrukus.    Am.  Dec.  258;  Harrison  v.  Marshall. 

12'pa  Co  Ct   R.  314.     And  see  cases    7  Ky.  (4  Bibb.)    524;  Rabe  v.  Fyler, 

cited  post,  note  212.     In  Seem  v.  Mc-    18  Miss.    (10  Smeeds.&  M.)    440,  48 

Lees    24   111    192,  it  is  decided  that    Am.  Dec.  763. 

the   landlord's   failure  to    make   the        2"  Doss  v.  Craig,   1  Colo.   177,   91 

statutory  demand  for  possession   is    Am.  Dec.  711. 

not  waived  by  the  tenant's  appear-        215  Boggs   v.   Black,   1   Bin.    (Pa.) 

ance.  2^^- 


1752 


SUMMARY  PROCEEDINGS. 


§274 


of  an  express  condition,  it  being  considered  that  the  word  "ex- 
piration" can  refer  only  to  the  termination  of  the  term  or  tenancy 
by  its  own  limitation,  and  without  the  intervention  of  the  land- 
lord.216  Even  in  these  jurisdictions,  however,  the  proceeding  will 
lie  if  the  tenancy  comes  to  an  end  upon  the  exercise  of  an  express 
option  by  the  landlord  to  terminate  the  tenancy,  the  lease  being 
limited  to  expire  upon  the  exercise  of  such  option,2i7  the  distinc- 
tion being  that  before  referred  to,  between  a  condition  and  a 
limitation.2is  It  seems,  however,  that  if  the  option  is  exercisable 
by  the  landlord  only  upon  a  default  by  the  tenant,  the  provision 
should  be  regarded  as  a  condition  and  not  a  limitation,^^^  so  that 
the  proceeding  will  not  lie.220  In  two  states,  where  the  rule  as 
stated  in  the  cases  first  above  cited  was  recognized,  the  statute 
has  been  amended  so  as  to  allow  such  a  proceeding  to  enforce  a 


2i6SIIva  V.  Campbell,  84  Cal.  420, 
24  Pac.  316;  State  v.  Burr,  29  Minn. 
432.  13  N.  W.  676;  Smith  v.  Sinclair. 
59  N.  J.  Law,  84.  34  Atl.  943;  Oakley 
V.  Schoonmaker,  15  Wend.  (N.  Y.) 
226;  Kramer  v.  Amberg,  15  Daly, 
205.  4  N.  Y.  Supp.  613;  Id..  115  N.  Y. 
655.  21  N.  E.  1119;  Bixby  v.  Casino 
Co.,  14  Misc.  346.  35  N.  Y.  Supp.  677; 
Kelly  V.  Varnes,  52  App.  Div.  100, 
64  N.  Y.  Supp.  1040;  In  re  Guaranty 
Bldg.  Co.,  52  App.  Div.  140,  64  N.  Y. 
Supp.  1056;  Penoyer  v.  Brown.  13 
Abb.  N.  C.  (N.  Y.)  82. 

A  special  stipulation  for  summary 
proceedings  in  such  case  has  been 
decided  to  be  inefEective.  Beach  v. 
Nixon,  9  N.  Y.  (5  Seld.)  35.  In 
Bixby  V.  Casino  Co..  14  Misc.  346, 
35  N.  Y.  Supp.  677,  and  McMahon  v. 
Howe,  40  Misc.  546.  82  N.  Y.  Supp. 
984,  it  is  decided  that  the  word  "re- 
enter." in  a  clause  allowing  the  land- 
lord to  re-enter  on  default,  entitles 
him  to  maintain  ejectment,  but  not 
a  summary  proceeding. 

217  Miller  v.  Levi.  44  N.  Y.  489,  4 
Am.  Rep.  705;  Manhattan  Life  Ins. 
Co.  V.  Gosford,  3  Misc.  509,  23  N.  Y. 
Supp.  7;   Scott  V.  Willis,  122  Ind.  1, 


22  N.  E.  786;   Ronginsky  v.  Grantz, 
39  Misc.  347,  79  N.  Y.  Supp.  839. 
21s  See  ante,  §  194  c. 

219  See  ante,  §  194  c,  at  notes  87, 
88. 

220  See  Beach  v.  Nixon,  9  N.  Y.  (5 
Seld.)  35;  Kramer  v.  Amberg,  15 
Daly,  205,  4  N.  Y.  Supp.  613;  Id.,  115 
N.  Y.  655,  21  N.  E.  1119;  In  re  Guar- 
anty Bldg.  Co.,  52  App.  Div.  140,  64 
N.  Y.  Supp.  1056.  But  to  the  effect 
that  the  language  of  the  lease  may 
create  a  limitation  terminating  the 
tenancy  on  the  default  of  the  tenant. 
so  as  to  authorize  the  proceeding, 
see  Estelle  v.  Dinsbeer,  9  Misc.  487, 
30  N.  Y.  Supp.  243;  Cottle  v.  Sulli- 
van, 8  Misc.  184;  Martin  v.  Crossley, 
46  Misc.  254,  91  N.  Y.  Supp.  712. 
The  case  of  Estelle  v.  Dinsbeer,  9 
Misc.  487,  30  N.  Y.  Supp.  243,  supra, 
might  perhaps  be  distinguished  up- 
on the  ground  that  the  default  which 
was  to  render  the  lease  "null  and 
void"  was  in  the  performance  of  a 
stipulation  not  connected  with  the 
enjoyment  of  the  premises,  that  is, 
the  payment  for  furniture  sold  by 
the  lessor  to  the  lessee. 


§274 


ILLEGAL  USE  OF  PREMISES. 


1753 


forfeiture.221  In  some  jurisdictions  the  view  above  referred  to 
has  not  been  adopted,  and  a  statute  authorizing  the  proceeding 
upon  the  termination  or  expiration  of  the  lease  has  been  held  to 
authorize  it  to  enforce  the  right  of  re-entry  on  breach  of  an  ex- 
press condition.- 22  In  others  there  are  cases  in  which  it  is  as- 
sumed that  the  proceeding  will  lie  for  such  purpose. ^^s  In  one 
state  it  has  been  held  to  lie  to  enforce  a  forfeiture  by  reason  ot" 
a  disclaimer  of  the  tenancy.224 
c.     Illegal  use  of  premises.     As  before  stated,  in  many  states 


221  In    Connecticut,    formerly,    the 
statute  provided  for  the  proceeding 
"on  expiration  of  the  lease,"  against 
a    tenant    "holding    over    after    the 
term  of  the  lease,"  and' it  was  held 
that  it  would  not  lie  on  breach  of 
condition.     Du  Bouchet  v.  Wharton, 
12  Conn.  533.     But  subsequently  the 
statute   was   amended   so   as   to  au- 
thorize the   proceeding   in   case  the 
lease  should  "terminate  by  lapse  of 
time   or  by   reason   of   any   express 
stipulation    thereof,"    and    the    pro- 
ceeding was  held  to  lie  for  breach  of 
condition.     Lang  v.  Young,  34  Conn. 
526;     Schroeder    v.    Tomlinson,    70 
Conn.   348,   39   Atl.   484.     In    Massa- 
chusetts, also,  it  was  held  that  the 
proceeding  would  not  lie  for  breach 
of    condition    under    a    statute    au- 
thorizing   it    "after    the    determina- 
tion of  the  lease,  either  by  its  own 
limitation  or  notice  to  quit."     Fifty 
Associates  v.  Rowland,  52  Mass.  (11 
Mete.)  99.     But  the  statute  was  sub- 
sequentlj'    amended    by    adding    the 
words   "or  otherwise"  after   "notice 
to  quit,"  and  the  proceeding  was  as- 
sumed to  lie  on  breach  of  condition. 
.  Whitwell  V.   Harris,   106  Mass.   532. 
See  remarks  of  Mr.  Justice  Gray  in 
Willis  V.   Eastern  Trust  &  Banking 
Co.,  169  U.  S.  295,  306,  42  Law.  Ed. 
752.     The    effect     of    the     decisions 
holding  that  the  statutes  as  amend- 
ed authorize  the  proceeding  upon  the 


breach  of  an  express  condition  is  to 
authorize  the  proceeding  before,  and 
not  upon,  or  after,  the  termination  of 
the  lease  or  term,  since  the  mero 
breach  of  condition  in  itself  does  not 
terminate  the  lease. 

222  Ellis  V.  Fitzpatrick,  55  C.  C.  A. 
260,  118  Fed.  430;  Follin  v.  Coogan, 
12  Rich  Law  (S.  C.)  44;  Quinn  v. 
McCarty,  81  Pa.  475;  Preston  v. 
Stover,  70  Neb.  632,  97  N.  W.  812. 

223  Walker  v.  Bowling,  24  Ky.  Law 
Rep.  179,  68  S.  W.  135;  Andrews  v. 
Erwin,  25  Ky.  Law  Rep.  1791,  78 
S.  W.  902;  Dietz  v.  Barnard,  32  Ky. 
Law  Rep.  1130,  107  S.  W.  766;  Le- 
duke  V.  Barnett,  47  Mich.  158,  10  N. 
W.  182;  Witte  v.  Quinn,  38  Mo.  App. 
681;  Cochran  v.  Philadelphia  Mortg. 
&  Trust  Co.,  70  Neb.  100,  96  N.  W. 
1051;  Parks  v.  Hays,  92  Tenn.  161, 
22  S.  W.  3;  Johnston  v.  Hargrove,  81 
Va.  118. 

In  Lane  v.  Brooks,  120  111.  App. 
501,  it  is  decided  that  a  clause  au- 
thorizing the  lessor,  upon  default  in 
rent,  "at  his  election,  without  notice 
or  demand  of  rent,  to  declare  said 
term  ended  afid  to  re-enter,"  did  not 
authorize  him  to  maintain  the  pro- 
ceeding without  previous  notice  of 
election  to  terminate  the  lease. 

224  Fortier  v.  Ballance,  10  111.  (5 
Gilm.)  41;  Fusselman  v.  Worthlng- 
ton,  14  111.  135. 


1754  SUMMARY  PROCEEDINGS.  K  274 

the  use  of  the  premises  by  the  tenant,  for  any  illegal  puri^ose,  or 
for  some  particular  illegal  purpose  specified  in  the  statute,  has 
the  efFect  of  forfeiting  the  tenant's  interest.-' 25  Quite  frequently 
the  statute  expressly  provides  that  in  such  case  the  landlord  may 
bring  a  summary  proceeding  to  recover  possession,  or,  which  is  the 
same  thing,  may  proceed  in  the  same  manner  as  when  the  tenant 
holds  over  his  term.220  A  summary  proceeding  has,  in  one  state 
at  least,  been  regarded  as  a  proper  method  of  enforcing  the  for- 
feiture even  though  it  is  not  so  expressly  provided. 227  But  a  stat- 
ute authorizing  a  summary  proceeding  against  a  tenant  holding 
over  after  the  expiration  of  his  term  would  presumably  not  apply 
to  such  a  case  in  any  jurisdiction  in  which  such  a  statute  has 

been  held  not  to  apply  in  case  of  the  breach  of  an  express  condi- 
tion.228 

It  has  been  decided  that  no  notice  to  quit  was  necessary,  before 
bringing  a  proceeding  under  the  statute  on  account  of  an  illegal 
use  of  the  premises,  when  the  statute  did  not  specifically  so  pro- 
vide, and  the  owner  of  premises  so  used  was  re(iuired,  under 
severe  penalties,  to  eject  the  occupant  responsible  for  the  illegal 
use.229 

Under  a  statute  authorizing  the  proceeding  in  case  of  illegal 
use,  such  use  of  part  of  the  demised  premises  by  a  subtenant,  with 
the  knowledge  of  the  original  tenant,  will,  it  has  been  held,  justify 
the  recovery  of  the  wdiole  premises  by  the  landlord  in  chief.230 
If  the  business  carried  on  upon  the  premises  is  unlawful,  it  is 
said,  the  landlord  has  the  right  to  recover  possession,  though  the 
carrying  on  of  such  business  is  not  an  indictable  oft'ense.231 

*2BSee  ante,  §  193  b.  372;    McGarvey  v.  Puckett,  27  Ohio 

226  See  Co7inecticut  Gen.  St.  1902,  §  St.  C69.  Compare  Ryan  v.  Kirkpat- 
1085;  Iowa  Code  1897,  §§  2426,  4990;  rick,  1  Ohio  Wkly.  Law  Bui.  303,  7 
Kansas  Gen.  St.  1905,  §§  2331,  2497;  Ohio  Dec.  219. 

Maine  Rev.  St.  1903,  c.  22,  §  4;  Mass-  22s  See  ante,  at  note  216. 

achusetts  Rev.  Laws  1902,  c.  101,  §  229  Prescott  v.  Kyle,  103  Mass.  381. 

10;    Michigan   Comp.    Laws    1897,    §  230  People  v.  Bennett,  14  Hun   (N. 

5398;  New  Jersey,  2  Gen.  St.  p.  1923,  Y.)   63;   People  v.  McCarty,  62  How. 

§   34;    Neio  York  Code  Civ.   Proc.   §  Pr.    (N.  Y.)    152. 

2231      (5);      Tennessee,     Shannon's  231  People  v.  McCarty,  62  How.  Pr. 

Code  1896,  §  6769;  Utah  Comp.  Laws  CN.  Y.)    152. 

1907,  §  3575;  Washington,  Ball.  Ann.  As  to  the  effect  of  the  discontlnu- 

Codes  &  St.  §  5527  (5).  anoe  of  the  illegal  use  prior  to  the 

227  Justice   V.   Lowe,    26    Ohio    St.  institution    of    the    proceeding,    see 


274  NONPAYMENT  OF  RENT.  1755 

It  has  been  held  in  New  York  that  a  proceeding  to  oust  the 
tenant  is  maintainable  under  the  statute,  by  reason  of  the  illegal 
use  of  the  premises  by  a  subtenant,  though  such  illegal  use  has 
ceased,  if  the  subtenant  is  still  in  possession.^^^^ 

d  Nonpayment  of  rent-(l)  Statutory  provisions.  The  stat- 
utes of  many  of  the  states  authorize  a  proceeding  to  recover  pos^ 
session  of  the  premises  upon  failure  to  pay  the  agreed  rent, 
without  reference  to  whether  the  lease  contains  an  express  stipu- 
lation for  forfeiture  on  such  nonpayment.^^^  But  summary  pro- 
ceedings, being  based  purely  on  the  statute,  will  not^ie  on  ac 
count  of  the  nonpayment  of  rent,  in  the  absence  at  least  of  an 
express  stipulation  for  forfeitui'e,235  unless  the  statute  expressly 
names  this  as  a  ground  for  the  proceedmg.^^^ 

Occasionally  the  statute  authorizes  the  proceeding  to  recover 
possession  for  nonpayment  of  rent  only  if  there  is  not  sufficien 
property  on  the  premises  to  enable  the  landlord  to  realize  the 
arrears  of  rent  by  distress.^s? 

n/r  no^+TT    11   r>alv   fN    Y)        234  See  Parker  v.  Geary,  57  Ark. 
lT.^\f:l     nlU^^-  P-    R     301,  21  S.  W.  4,.;  Cha.wicK  V.  Pa. 
d  stlngrished  in  Stearns  v.  Hem-   ker,  44  111.  326;  Leary  v.  Pa    --■■  66 
IT2I  i.b.  N.  C.  312,  14  Daly,  501,    ....  203;  „„n.er  ''^J:'^^^'^^^^^''^' 
i  XT   V   Q„nn   ^2  72,   86,   77    Pac.   434,    SuclianecK   v. 

'  tZ  paX/Lin.  on  t.e  pre.-  Sn.it..  45  Minn.  ^^'Jl^^-J^-^'^']^ 
ises  for  the  purpose  of  doing  busi-  Seeger  v  Smith.  ^^Mmn.  ^79.  77^N. 
ness  with  the  tenant  are  guilty  of  W.  3;  Pollock  v.  Wh  pple,  33  Neb. 
d  sorderly  conduct  is  not  sufficient  to  752.  51  N.  W.  1^0;  Fleishauor  v^  Bell, 
•ustify  the  expulsion  of  the  tenant.  44  Misc.  240.  88  N^  ^^  S^^P"^^^^^  ^J^^g 
t  has  been  held,  under  a  statute  kota  Hot  Spnngs  Co^  v  Young  9 
authorizing  the  expulsion  of  a  ten-  S.  D.  5J7  70  N.  W_  842  People^, 
ant  keeping  a  disorderly  house.  Bennett.  14  Hun  (N.  Y.)  58  (sem 
Moench  v.  Yung,  16  Daly,  143,  9  N.    ble).  ,,,„,. 

Y   Sunn    637      As  to  evidence  admis-        235  See  ante.  §  274  D. 
Le  in  regard  to  the  past  illegal  use       3,,e  Bauer  v.  Knoble.  51  Mxnn^  358 
of   h    premises,  see  Goelet  v.  Lawlor,    53  N.  W.  805;  Meroney  v.  Wnght  81 
1     Misc.  59.  37  N.  Y.  Supp.  691.  N.  C.  390.     And  see  pos     a    note  350. 

.S.Stearns  v.  Hemmens.  1  N.  Y.  .a.  M«.iss^pP^  Code  19  6,  §  884. 
Snvv  52;  Conforti  v.  Romano.  50  2.^et.  Jersey,  2  Gen.  St.  1922.  §  30' 
Misc.-  148,  98  N.  Y.  Supp.  194.  dis-  ^--^^i---^  Jf  ^^^/..^^^f.^^  1. 
tinguishin-  Shaw  v.  McCarty,  2  Civ.  Laws,  "Landlord  &  Tenant  §  6^ 
Proc  R  4^^  where  the  subtenant  was  That  payment  of  rent  cannot  he  oh^ 
To  longer  in  possession.  Compare  tained  by  distress  may  be  shown  by 
no    longer    111    y  affidavit  v/ithout  any  actual  distress. 

'T,Z":Zt..   cited   post,   note.    See  Rogers  v.  I.ynds,  14  Wend.  (N. 
256,  276-280.  "^-^    ^"^^^ 


1756  SUMMARY  PROCEEDINGS.  §  274 

(2)  Applicability  of  the  statutes.  It  has  been  held  that  a  sum- 
mary proceeding  does  not  lie,  under  a  statute  authorizing  it  for 
nonpayment  of  rent  if  there  is  no  sufficient  distress  on  the  prem- 
ises, when  the  rent  is  to  consist  of  a  named  portion  of  the  crops, 
since  the  rent  is  not  then  certain. ^38  tj^q  tenant's  failure  to  pay 
taxes,239  or  to  pay  for  repairs,2'*'>  as  agreed,  does  not  authorize 
summary  proceedings  as  for  nonpayment  of  rent,  but  it  has  been 
decided  that  if  the  lease  provides  that  the  tenant  shall  pay  the 
water  rents,  and  that  on  his  failure  so  to  do  the  landlord  may 
enforce  payment  thereof  to  him  as  part  of  the  rent,  a  summary 
proceeding  will  lie  on  account  of  their  nonpayment.--*^ 

The  fact  that  personal  property  is  leased  with  the  land  at  a 
gross  rent  does  not  preclude  a  summary  proceeding  on  its  non- 
payment, it  issuing,  in  the  eye  of  the  law,  entirely  out  of  the 
land.-''^ 

If  it  is  agreed  that  double  rent  shall  be  paid  by  the  tenant  in 
case  of  a  breach  by  him  of  a  covenant  in  the  lease,  the  proceeding, 
it  has  been  decided,  will  lie  on  nonpayment  of  such  double  rent.^-" 

It  has  been  decided  that  if  the  tenant  holds  over  the  term  with 
the  landlord's  assent,  the  latter  may  maintain  a  summary  pro- 
ceeding on  account  of  the  nonpayment  of  rent  accruing  during 
the  original  term,  the  entire  holding  constituting  one  continuous 
tenancy.^-**  If  the  tenant  has  ceased  to  hold  as  tenant,  and  has 
entered  into  an  agreement  of  purchase,  under  which  he  is  hold- 
ing, he  cannot,  it  has  been  decided,  be  dispossessed  for  nonpay- 
ment of  rent  which  accrued  v/hen  he  was  tenant.^^s 

238  Oakley     v.     SchoonmakeT,     15  230  People  v.  Swayze,  15  Abb.  Pr. 

Wend.   (N.  Y.)  226.  (N.  Y.)   432. 

In  Ricketts  v.  Richardson,  85  Ind.  2*0  Bien  v.  Bixby,  18  Misc.  415,  18 

50S,  it  is  said,  without  any  discus-  N.    Y.    Snpp.    433;    Simonelli    v.    Dl 

slon,  that  "if  land  be  leased  for  cul-  Ericco,     59    Misc.    485,    110    N.    Y. 

tivation,  and  a  house  with  it,  in  the  Snpp.  1044. 

same  contract,  and  the  land  is  to  be  ^"  Cochran  v.  Reich,  20  Misc.  623. 

paid  for  by  half  the  crop,  and  the  ^^  ^-  ^-  ^^PP-  443. 


house  to  be  paid  for  by  $25,  payable 
six  months  before  the  expiration  of 
the  lease,  the  nonpayment  of  the  $25 


<2  Welch  V.  Ashby,   88   Mo.  App. 
400;     Armstrong    v.    Cummings,    20 
Hun   (N.  Y.)  313,  58  How.  Pr.  331. 
243  People  V.  Bennett,  14  Hun   (N. 
will   not    authorize   the   landlord    to   y  )  58 

determine  the  entire  lease  by  a  ten  24*  People  v.  Paulding,  22  Hun  (N. 

days'  notice  to  quit.'*     It  was  left  un-  y.")    91. 

decided    whether    the    house    alone  245  Burnett  v.   Scribner,   16    Barb, 

could  be  recovered.  (N.  Y.)   C21. 


§  274  NONPAYMENT  OF  RENT.  1757 

There  is  a  decision  that  an  executor  of  a  tenant,  who  defaults 
in  payment  of  rent,  is  not  within  a  statute  providing  a  summary 
proceeding  where  a  tcnnnt  continues  in  possession  "in  person  or 
by  subtenant"  after  such  default.^'*^  It  might  have  been  decided 
that  an  executor  who  accepts  the  leasehold-^"^  is  subject  to  the 
proceeding  as  a  tenant,  continuing  in  possession  in  person. 

If  the  proceeding  is  instituted  against  the  lessee's  assignee  on 
account  of  the  nonpayment  of  rent,  he  cannot  defend  by  showing 
that  he  has  paid  all  that  accrued  during  his  holding,  but  he 
must  also  pay  whatever  arrears  may  have  become  due  during  the 
tenancy  of  his  predecessor  in  interest.^"*^ 

If  the  tenant  fails  to  pay  the  rent  reserved  under  the  lease, 
a  subtenant  may  be  dispossessed  on  account  of  such  nonpayment, 
since  the  subtenant's  holding  rests  entirely  on  the  original 
lease.249 

That  the  tenant  has  given  security  for  the  payment  of  the  rent 

does  not  affect  the  landlord's  right  to  maintain  the  proceeding 

in  ease  of  nonpayment, ^^o  but  if  the  tenant  gives  a  note  for  the 

rent,  the  proceeding  will  not  lie,  it  has  been  held,  till  the  maturity 
of  thenote.253.252 

The  fact  that  a  personal  action  to  recover  the  rent  has  been 
previously  instituted,253  or  even  that  there  has  been  a  judgment 
therein,254  has  been  held  not  to  constitute  a  bar  to  a  summary 
proceeding  to  recover  possession  for  nonpaj'^ment. 

(3)  Demand  for  rent  as  prerequisite.  At  common  law,  as  is 
stated  elscwhere,^^^  a  demand  for  the  rent  on  the  day  on  which 
it  is  due,  at  a  certain  time  of  such  day,  and  upon  the  premises, 
is  necessary  in  order  that  the  landlord  may  enforce  an  express 
condition  of  forfeiture  for  nonpayment.  None  of  the  statutes  in 
regard  to  summary  proceedings  assert  the  necessity  of  any  such 

216  Martel  v.  Meehan,  63  Cal.  47.  253  Schuman    Piano    Co.    v.    Mark, 

247  See  ante,  §  158  h.  208  111.  282,  70  N.  E.  226. 

248  Collender  v.  Smith,  20  Misc.  ''*  D^irant  Land  Imp.  Co.  v.  Thom- 
612,  45  N.  Y.  Supp.  1130.  ^°°  Houston  Elec.  Co.,  2  Misc.  182,  21 

«.o  Ti  *  T,  n       t  V.     +        CA  Til   one     N-  Y.  Supp.  764.     It  was  also  there 

249  Patchell  V.  Johnston,  64  III.  305.    ^     . ,       ^, 

aecided  that  the  fact  that  an  under- 

2«o  People  V.  McAdam,  59  How.  Pr.    taking  was  given  by  the  tenant  on 

(N.   Y.)    19.     See  Brainard  v.  Hud-   appealing    from    the    judgment    did 

son,  1  City  Ct.  R.  (N.  Y.)  448.  ^ot  affect  the  right  to  maintain  the 

25],2r.2Spiro  V.  Barkin,  30  Misc.  87,   proceeding. 
61  N.  Y.  Supp.  870.  255  See  ante,  §  194  f  (1). 


1758 


SUMMARY  PROCEEDINGS. 


§274 


formal  demand,  though  occasionally  they  provide  that  a  proceed- 
ing to  recover  possession  for  nonpayment  of  rent  shall  be  insti- 
tuted only  after  a  demand  for  the  rent,-^^  and  sometimes  they  pro- 
vide for  a  demand  for  the  rent  as  a  part  of  a  notice  to  quit,  that 
is,  for  a  demand  in  the  alternative  for  rent  or  for  possession.^sT 
More  frequently,  however,  there  is  no  provision  for  a  demand  for 
the  rent,  but  the  purpose  of  a  demand  is  fulfilled  by  the  notice 
to  quit  which  the  statute  requires,^'^^  the  tenant  ordinarily  having 
the  option  of  paying  the  rent  during  the  running  of  the  notice 
and  of  thus  preventing  the  forfeiture.^^a  That  no  demand  for 
rent  is  necessar}-  in  the  absence  of  an  express  requirement  has 
been  several  times  judicially  recognized.^^o 

In  New  York  the  statute  provides  that  the  proceeding  may  be 
instituted  after  a  demand  for  rent  "or"  three  days'  notice  re- 
quiring payment  of  rent  or  possession.2ci     The  demand  for  rent 


i^a  Arizona  Rev.  St.  1901,  §  2693 
(Provides  that  no  "formal  demand" 
Is  necessary) ;  Illinois,  Kurd's  Rev. 
St.  1905,  c.  80,  §  8  (See  Cone  v.  Wood- 
ward, 65  111.  477);  Missouri  Rev.  St. 
1899,  §  4131  (Section  4135  provides 
that  any  demand  is  good  when  made 
at  any  time  after  rent  becomes  due) ; 
Nevada  Comp.  Laws  1900,  §  3825 
(Section  3826  provides  that  it  may 
be  made  at  any  time). 

257  See  post,  at  note  279. 

258  See  post,  §  274  d   (4). 

259  See  post,  §  274  d  (7). 

260  Woods  V.  Soucy,  166  111.  407, 
47  N.  E.  67;  Ingalls  v.  Bissot,  25  Ind. 
App.  130,  57  N.  E.  723;  Union  Scale 
Co.  V.  Iowa  Mach.  &  Supply  Co.,  136 
Iowa,  171,  113  N.  W.  762,  125  Am. 
St.  Rep.  250;  Kimball  v.  Rowland,  72 
Mass.  (6  Gray)  224;  Borden  v.  Sac- 
kett,  113  Mass.  214;  Gibbens  v. 
Thompson,  21  Minn.  398;  Spooner  v. 
French,  22  Minn.  37;  Dakota  Hot 
Springs  Co.  v.  Young,  9  S.  D.  577,  70 
N.  W.  842:  Johnston  v.  Hargrove,  81 
Va.  118  (semble) ;  Hendrickpon  v. 
Beeson,  21  Neb.  61,  31  N.  W.  266; 
Haynes  v.   Union   Inv.   Co.,  35  Neb. 


766.  53  N.  W.  979;  Horan  v.  Thomas, 
60  Vt.  325,  13  Atl.  567.  Contra. 
Clark  v.  Everly,  2  Clark  (Pa.)  219. 
In  Judd  V.  Fairs,  53  Mich.  518,  19  N. 
W.  206,  reference  is  made  to  the  fact 
that  in  the  particular  case  demand 
for  rent  was  made,  in  addition  to 
giving  the  statutory  notice  to  quit. 

In  Parks  v.  Hays,  92  Tenn.  161,  22 
S.  W.  3;  Johnston  v.  Hargrove,  81 
Va.  118,  it  is  decided  that  a  demand 
is  necessary  where  the  proceeding  is 
brought  to  enforce  an  express  right 
of  re-entry.  To  the  same  effect,  ap- 
parently, is  Cole  V.  Johnson,  120 
Iowa,  667,  94  N.  W.  1113.  This  lat- 
ter case  is,  in  Union  Scale  Co.  v. 
Iowa  Mach.  &  Supply  Co.,  136  Iowa, 
71,  113  N.  W.  762,  125  Am.  St.  Rep. 
250.  supra,  stated  to  be  based  on  the 
fact  that  the  amount  of  rent,  as  well 
as  the  place  of  payment,  was  uncer- 
tain. 

261  Code  Civ.  Proc.  §  2231  (2).  See 
Rogers  v.  Lynds,  14  Wend.  (N.  Y.) 
172;  Tolman  v.  Heading,  11  App. 
Div.  264,  42  N.  Y.  Supp.  217:  Boyd 
V.  Milone,  24  ISTisc.  734,  53  N.  Y. 
Supp.  785;  Heinrich  t.  Mack,  25  Misc. 


§274 


NONPAYMENT  OF  RENT.  1759 


necessary,  under  this  statute,  to  avoid  the  necessity  of  the  three 
days'  notice,  must  be  made  personally  upon  the  tenant,262  and  a 
demand  made  on  an  under  tenant, 2^3  or  by  mail,^^*  has  been 
decided  to  be  insufficient.  But  it  may  be  made  on  one  of  two 
joint  lessees.2«5  The  demand  may  be  made  by  an  authorized 
agent  of  the  landlord  as  well  as  by  the  landlord  himself,^^^  or  by 
one  of  two  joint  lessors.^^^ 

The  demand,  it  has  been  said,  need  not  be  made,  as  at  common 
law,  upon  the  premises  or  at  the  place  where  payable.^cs  But  in 
one  state  a  different  view  was  taken  of  a  statute  providing  for  a 
summary  proceeding  after  a  demand  for  rent.^^a 

The  demand  is  sufficient,  it  has  been  decided,  though  it  is  for 
only  part  of  the  rent  then  due.^^o  But  it  is  presumably  not  good, 
in  some  jurisdictions  at  least,  if  it  is  for  more  than  the  rent  due,27i 
since  the  tenant  is  justified  in  refusing  such  a  demand.  A  demand 
in  terms  for  the  amount  due,  without  naming  the  amount,  has 
been  adjudged  to  be  a  sufficient  compliance  with  the  statutory 

597,  56  N.  Y.  Supp.  155;  McMahon  v.       270  Mooers  v.  Martin,  99  Mo.  94,  12 

Howe,  40  Misc.  546,  82  N.  Y.  Supp.  S.    W.    522;    Slieldon    v.    Testera,    21 

984;    Glanz   v.    Schaefer,   102    N.    Y.  Misc.    477,    47    N.    Y.    Supp.    653,    in 

Supp.  518.  which   latter  case   it   is   stated   that 

262  See  People  v.  Gross,  50  Barb,  the  payment  of  such  part  prevents 
(N.  Y.)  231;  Tolman  v.  Heading,  11  the  issue  of  the  precept  till  the  ten- 
App.  Div.  264,  42  N.  Y.  Supp.  217;  ant  is  again  put  in  default  by  a  de- 
Boyd  V.  Milone,  24  Misc.  734,  53  N.  mand. 

Y.  Supp.  785.  271  It   is   so   decided   in   Nowell   v. 

263  People  V.  Piatt,  43  Barb.  (N.  Wentworth,  58  N.  H.  319,  as  regards 
Y.)    116.  the  demand  there  required  as  a  pre- 

264  Zinsser  v.  Herrman,  23  Misc.  requisite  to  a  summary  proceeding, 
645,  52  N.  Y.  Supp.  107.  it  being  saiu   that   the   common-law 

265Geisl8r  v.   Acosta,   9   N.  Y.    (5    ^.^^^   applies    except   as   changed   by 

Seld.)  227.  statute.     But  in  New  York  a  demand 

266  People  V.  Stuyvesant.  1  Hun  (N.    ^^^  ^^^^  ^^^^  .^  ^^^  ^^^^^  ^^  ^^  ^^_ 

•'  _^     garded   as  good.     See  Durant  Land 

267  Griffin  v.   Clark,   33   Barb.    (N.    ^  _  r^     *  t^.         -r.^       r. 

Imp.  Co.  V.  East  River  Elec.  Co.,  15 

^'^  '^1'    ,      ,.  T^.  -u        ..A  ^^T^.1,     Daly,  337,  6  N.  Y.  Supp.  659;  Sheldon 

268  Cockerlme  v.  Fisher,  140  Mich. 

95.  103N.  W.  522,  12Det.  Leg.N.  55;  ^-    Testera,    21   Misc.    477,   47    N.    Y. 

Wolcott  V.  Schenk,  16  How.  Pr.   (N.  Supp.  653;  3  McAdam,  Landl.  &  Ten. 

Y)  449  (3d  Ed.)    97.     There  the  demand  is 

269  Gage  V.  Bates,  40  Cal.  384.  not  bad  because  interest  is  included. 
And  see  Nowell  v.  Wentworth,  58  N.  People  v.  Dudley,  58  N.  Y.  223. 

H.  319,  referred  to  infra,  note  271. 


1760 


SUMMARY  PROCEEDINGS. 


§274 


requirement. 272  A  demand  is  obviously  ineffective  if  the  rent 
demanded  is  not  due  at  the  time  of  demand.^'^^ 

That  the  act  of  the  landlord  be  effective  as  a  demand,  it  must, 
it  has  been  said,  be  intended  as  such  by  the  landlord,  and  so  un- 
derstood by  both  parties.^'^^ 

The  statutory  requirement  of  a  demand  for  the  rent  as  a  pre- 
r„'quisite  to  the  proceeding  may,  it  has  been  decided,  be  dispensed 
with  by  express  agreement. ^'^^ 

(4)  Notice  to  quit  as  prerequisite — (a)  Statutory  provisions. 
Some  of  the  statutes  authorize  the  proceeding  immediately  upon 
default  in  the  payment  of  rent,-'^  and  some  after  a  prescribed 
number  of  days.^'^  Some  provide  that  the  landlord  or  person 
entitled  to  possession  must  make  demand  for  possession  or  give 
a  notice  to  quit  of  a  prescribed  number  of  days  before  instituting 
proceedings.^'^'*     Others  require  that  he  first  give  notice  of  a  cer- 


2T2  Durant  Land  Imp.  Co.  v.  Thom- 
son-Houston Elec.  Co.,  2  Misc.  182,  1 
N.  Y.  Supp.  764;  McLean  v.  Spratt, 
20  Fla.  515.  Compare  Ralph  v.  Lom- 
er,  3  Wash.  401,  28  Pac.  760;  Byrkett 
V.  Gardner,  35  Wash.  668,  77  Pac. 
1048. 

273  Parker  v.  Gortatowsky,  129  Ga. 
623,  59  S.  B.  286. 

2T4  Norris  v.  Morrill,  40  N.  H.  395, 
43  N.  H.  213. 

275  Espen  V.  Hinchcliffe,  131  111. 
468,  23  N.  E.  592. 

216  Georgia  Code  1895,  §  4813  (Af- 
ter demand  for  possession);  Minne- 
sota Rev.  Laws  1905,  §  4038;  Mis- 
souri Rev.  St..  1899,  §  4131  (After  de- 
maud  for  rent) ;  Nevada  Comp.  Laws 
1900,  §  3825  (After  demand  for 
rent) ;  New  York  Code  Civ.  Proc.  § 
2231  (After  demand  of  rent,  or  three 
days'  notice  requiring  payment  of 
rent  or  possession) ;  Oregon.  Bell.  & 
C.  Codes,  §  5745  (Semble,  after  de- 
mand for  possession.  See  Hislop  v. 
Moldenhauer,  21  Or.  208,  27  Pac. 
1052);  Sotith  Carolina  Civ.  Code.  § 
2423  (Demand  for  possession  requi- 
site.    See  State  v.  Marshall,  24  S.  C. 


507;  Keller  v.  Pagan,  54  S.  C.  255,  32 
S.  E.  353). 

iTi  Arizona  Rev.  St.  1901,  §  2693 
(Five  days) ;  Rhode  Island  Gen. 
Laws  1S96,  c.  269,  §  7  (If  rent  over- 
due fifteen  days). 

2TS  Arkansas.  Kirby's  Dig.  St.  1904, 
§  3630  (After  three  days'  notice  to 
quit  and  demand  made  in  writing 
for  possession);  Connecticut  Gen. 
St.  1902,  §  1078  (Ten  days'  notice,  to 
be  given  after  nine  days  from  de- 
fault in  rent  under  parol  lease) ; 
Indiana,  Burns'  Ann.  St.  1901,  §§ 
7092,  7094  (After  ten  days'  notice  to 
quit,  lease  to  determine  unless  rent 
paid  within  the  ten  days,  but  if  rent 
payable  in  advance,  no  notice  to  quit 
necessary) ;  Iov:a  Code  1897,  §  4208 
(After  three  days'  notice  to  quit) ; 
Kansas  Gen.  St.  1905,  §§  4057,  4058 
(If  tenancy  for  three  months  or 
more,  ten  days'  notice  to  quit  shall 
terminate  lease,  unless  rent  paid 
within  ten  days,  and  if  tenancy  for 
less  time,  five  days'  notice,  and  it 
shall  be  stated  in  notice  that  proceed- 
ing will  be  instituted.  See  section 
5843) ;     Massachusetts    Rev.     Laws 


§  274  NONPAYMENT  OF  RENT.  17Q1 

tain  number  of  days,  usually  three,  requiring  in  the  alternative 
payment  of  rent  or  possession  of  the  premises  ;2'^9  while  one  at 
least  provides  for  a  notice  to  the  effect  that  the  tenancy  will 
terminate  unless  the  rent  is  paid  within  a  specified  number  of 
days.280  Occasionally  the  statute  has  required  both  a  notice  to 
terminate  the  tenancy  for  nonpayment  of  rent,  and  a  subsequent 
notice  as  a  preliminary  to  a  possessory  proceeding.-^i 

No  notice  to  quit  is  necessary  if  the  statute  does  not  expressly 
require  it,282  and  the  fact  that  the  lease  authorizes  the  lessor  to 
declare  a  forfeiture  for  nonpayment,  after  a  notice  of  intention 
to  do  so,  does  not  render  such  a  notice  necessary  when  the  pro- 
ceeding is  brought  imder  the  statute,  without  reference  to  such 
provision  for  forfeiture.^ss 

A  provision  for  the  termination  of  the  tenancy  and  the  re- 

1902,  c.  129,  §§  11,  12  (After  fourteen  sissippi  Code  1906,  §  2885;  Montana 

days'   notice  to   quit);    Michigan,    3  Rev.  Codes  1907,  §  7271;  A^ew  Jersey, 

Comp.  Laws  1897,  §  11164  (After  de-  2  Gen.  St.  1902,  §  30;  New  York  Code 

mand  of  possession  and  tenant's  non-  Civ.  Proc.  §  2231;  Utah  Comp.  Laws 

compliance  for  seven  days);  Nebras-  1907,  §  3575;    Virginia  Code  1904,   § 

ka  Comp.  St.  1905,  §  7527  (After  no-  2719  (Default  continued  five  days  af- 

tice  to  leave,  to  be  served  three  days  ter  such  alternative  notice) ;   WasJi- 

before    commencing    action) ;     Neio  ington.    Ball.    Ann.    Codes    &    St.    § 

Hampshire  Pub.  St.  1901,  c.  24  b,  §  5527;     Wisconsin    Rev.    St.    1898,    § 

3  (After  seven  days'  notice,  if  tenant  3358. 

neglects  or  refuses  to  pay  the  rent  on  280  Illinois,  Kurd's  Rev.  St.  1905,  c. 
demand);  New  Mexico  Comp.  Laws,  80,  §  8  (Notice  that  if  not  paid  with- 
§§  3345,  3347;  North  Dakota  Rev.  in  time  named,  at  least  five  days,  ten- 
Codes  1905,  §§  8406,  8407  (After  non-  ancy  to  terminate), 
payment  for  three  days  and  three  2si  gee  Douglass  v.  Parker,  32 
days'  notice  to  quit);  Pennsylvania,  Kan.  593,  5  Pac.  178;  Smith  v.  Rowe, 
Pepper  &  Lewis'  Dig.  Laws,  "Land-  31  Me.  212. 

lord  &  Tenant,"  §  34  (After  notice  to  282  Caley  v.  Rogers,  72  Minn.  100, 

quit  within  fifteen  or  thirty  days,  ac-  75  N.  W.  114.     Or  when  the  statute 

cording  to  time  of  year) ;  South  Da-  expressly     so     provides.     Ingalls     v. 

kota.  Justices'  Code,  §§  44,  45  (After  Eissot,  25  Ind.  App.  130,  57  N.  E.  723; 

nonpayment  for  three  days  and  three  Thomas  v.  Walmer,  18  Ind.  App.  112, 

days'  notice  to  quit) ;  Wyoming  Rev.  46    N.    E.    695.     See,    also,    Dietz    v. 

St.   1899,   §§   4486,  4487    (After  non-  Barnard,  32  Ky.  Law  Rep.  1130,  107 

payment   for  three  days   and   three  S.  W.  766,  where  the  lease  provided 

days'   notice   to    quit).  for  a  forfeiture  and  recovery  of  pos- 

279  California    Code     Civ.    Proc.    §  session  thereon  without  demand. 

1161;  Colorado,  Mills'  Ann.  St.  1891,  283  Rogers  v.  Grote  Paint  Co.,  118 

§  1973;  Florida  Gen.  St.  1906,  §  2227;  Mo.  App.  334,  94  S.  "W.  549, 
Idaho  Code  Civ.  Proc.  §   3974;   Mis- 

L.  and  Ten.  111. 


1762  SUMMARY  PROCEEDINGS. 


§274 


covery  of  possession  after  giving  a  notice  to  quit  of  a  prescribed 
number  of  days  does  not  cause  the  tenancy  to  terminate  imme- 
diately upon  the  giving  of  the  notice,  but  it  does  so  only  after  the 
expiration  thereof.^s^  The  suit  for  possession  cannot  be  insti- 
tuted until  after  the  last  day  upon  which  the  rent  may,  by  the 
terms  of  the  notice,  be  paid.^'*^ 

(b)  Form  of  notice.  A  statutory  requirement  of  three  days' 
notice  to  quit  is  not  satisfied  by  a  written  demand  for  the  rent 
followed  by  an  interval  of  three  days  before  action,-^''  and  a  re- 
quirement of  a  notice  to  quit  of  a  certain  number  of  days  has 
been  held  not  to  be  satisfied  by  a  notice  to  the  tenant,  "being  in 
arrears  of  rent,"  to  deliver  up  the  premises  "forthwith, "287  j^ 
being  said  that  the  notice  should  either  state  with  accuracy  the 
time  at  which  by  law  the  tenant  is  required  to  leave  the  prem- 
ises, or  in  some  other  way  refer  him  to  his  legal  rights  under  the 
statute.2S8  A  demand  for  possession,  without  naming  any  time 
for  quitting,  would  seem  ordinarily  to  be  insuflfieient,-**^  but  the 
requirement  of  a  notice  to  quit  has  lieen  regarded  as  not  requir- 
ing a  statement  in  the  notice  that  it  is  on  account  of  the  nonpay- 
ment of  rent.2»o 

The  requirement,  found  in  a  number  of  states,^^"*  of  a  notice 
in  the  alternative,  requiring  either  the  payment  of  rent  or  the 
delivery  of  possession  within  a  certain  time,  would  seem  to  involve 
a  statement  in  the  notice  that  the  rent  is  in  arrear  and  a  demand 
thereof,29i  but  it  has  in  one  state,  apparently,  been  regarded  as 

284  Frazier  v.  Caruthers,  44  111.  28o  See  Currier  v.  Barker,  68  Mass. 
App.  61;  Douglass  v.  Parker,  32  Kan.    (2  Gray)  224. 

593,  5  Pac.  178;  Brcoks  v.  Allen,  146  290  Granger  v.  Brown,  65  Mass.  (11 

Mass.  201,  15  N.  E.  584;   Wray-Aus-  Cush.)  191.     And  see  Judd  v.  Fairs, 

tin  Mach.    Co.  v.    Flower,  140  Mich.  53   Mich.   518,   19    N.   W.   266,  which 

452,  103  N.  W.  873,  12  Det.  Leg.  N.  seems  to  assume  this,  there  having 

214.  been,  however,  a  demand  for  the  rent 

285  Cteek  V.  Preston,  34  Ind.  App.  previous  to  the  notice.  An  objection 
343,  72  N.  E.  1048,  a  case  involving  to  the  notice  on  this  ground  must, 
the  computation  of  the  time  named,  it  has  been  held,  be  made  before  trial. 

286Conley  v.  Conley,  78  Wis.  665,  McLain  v.   Nurnberg,  16  N.  D.   144, 

47  N.  W.  950.  112  N.  W.   243. 

28T  oakes  v.  Munroe,   62   Mass.    (8  29f a  See  ante,  at  note  279. 

Cush.)  282;  Elliott  v.  Stone,  66  Mass.  291  a  notice  demanding  possession 

(12  Cush.)   174.  for  failure  to  pay  rent,  and  notify- 

288  See  Granger  v.  Brown,  65  Mass.  ing  the  tenant  that  unless  the  rent  is 

(11  Cush.)  191.  paid,  or  possession  delivered  within 


§  274  NONPAYMENT  OF  RENT.  1763 

satisfied  by  an  oral  demand  for  the  rent,  followed  Ijy  a  written 
notice  to  qmt.292  a  demand  for  payment  of  the  rent,  without 
the  alternative  demand  for  possession  within  the  prescribed  time, 
as  provided  by  the  statute,  is  not  sufficient.293 

A  statement  in  the  notice  that  the  rent  was  due  and  unpaid 
on  a  certain  day,  without  naming  the  amount,  has  been  regarded 
as  sufficiently  designating  the  sum  due,  by  reason  of  the  tenant's 
knowledge  of  the  amount  of  rent  then  becoming  due.294 

A  statute  requiring  a  notice  that,  unless  payment  is  made  within 
a  period  named,  the  lease  will  be  terminated,  has  been  regarded 
as  complied  with  by  a  demand  for  immediate  payment,  coupled 
with  a  demand  for  possession  within  the  prescribed  number  of 
days  if  the  rent  is  not  paid.205  A  notice  "to  leave"  for  nonpay- 
ment of  rent  is  a  sufficient  compliance  with  a  statute  requiring 
a  notice  to  quit.^as 

The  notice  should  describe  the  premises  with  sufficient  certainty 
to  enable  the  tenant  to  identify  them.297  it  has  been  regarded 
as  defective  when,  though  correctly  describing  the  premises,  it 
wrongfully  describes  the  lease  as  made  by  the  person  instituting 
the  proceeding  instead  of  by  his  grantor.298 

An  obvious  clerical  mistake  in  the  notice,  such  as  the  substitu- 
tion of  "me"  for  "you"  or  vice  verm,  will  not,  it  has  been  de- 
cided, invalidate  the  notice.^^^ 

three   days,   proceedings   for  posses-  203  People  v.  Gross,   50  Barb.    (N. 

sion  would  be  begun,  was   regarded  Y.)    231.     As  to  the  computation  of 

as   sufficiently   notifying  the   tenant  the  statutory  period,  see  Bristed  v. 

that  if  he  paid  the  rent  he  need  not  Harrell,  20  Misc.  348,  45  N.  Y.  Supp. 

deliver      possession.       Brauchle      v.  918. 

Nothelfer,    107    Wis.    457,    83    N.    W.  201  Ralph  v.  Lomer,   3   Wash.   401, 

653.     In  Mullone  v.  Klein,  55  N.  J.  28  Pac.  760,  citing  McLean  v.  Spratt, 

Law,  479,  27  Atl.  902,  it  is  said  that  20  Fla.  515,  ante,  note  272. 

the  notice  must  be  given  to  the  ten-  295  Rowland  v.  White,  48  111.  App. 

ant  from  whom  the  rent  is  due  by  the  236;  Parnam  v.  Hohman,  90  111.  312. 

person  entitled  to  receive  the  rent,  200  Douglass  v.  Anderson,  32  Kan. 

or  his  agent,  that  it  must  be  a  de-  350,  4  Pac.  257. 

mand  for  rent,   and  must  state  the  29- parnam  v.  Hohman,  90  111.  312; 

amount  due  and  for  what  premises  it  Whipple  v.  Shewalter.  91   Ind.  114. 

is  due,  and  that  it  must  show  who  298  Henderson   v.   Carbondale   Coal 

is  the  landlord  and  require  payment  &  Coke  Co.,  140  U.  S.  25,  35  Law  Ed. 

to  him  within  three  days  of  its  serv-  332. 

i<^e.  299  Lacrabere    v.    Wise    (Cal.)    71 

2n2judd  V.  Fairs,  53  Mich.  518,  19  Pac.  175. 
N.  W.  266. 


1764 


SUMMARY  PROCEEDINGS. 


§2/4 


(e)  Person  to  give  notice.  The  person  to  give  the  notice  to 
quit  is  undoubtedly,  in  the  ordinary  case,  the  person  to  whom  the 
rent  is  due,  and  who  is  instituting  the  proceeding. 

A  notice  to  quit  for  nonpayment  of  rent  has  been  treated  as 
sufficient  when  signed  by  but  one  of  the  executors  who  instituted 
the  proceeding.300  j^  notice,  followed  by  a  proceeding,  by  one  of 
two  joint  lessors,  was  upheld.^°^ 

A  notice  signed  by  the  agent  of  the  landlord  was  held  to  be 
sufficient  when  the  statute  provided  for  the  removal  of  the  tenant 
for  nonpayment  of  rent  after  service  on  him  of  three  days'  notice 
"in  behalf  of"  the  person  entitled  to  the  rent,  and  authorized  an 
agent  to  make  the  application  for  the  tenant's  removah^o^^ 

(d)  Waiver  of  requirement.  There  are  decisions  to  the  effect 
that  the  statutory  requirement  of  a  notice  to  quit  maj^  be  waived 
by  the  person  in  possession.^''^  In  some  jurisdictions,  such  a 
notice  might  be  regarded  as  jurisdictional,  and  not  susceptible  of 
waiver.304 


800  Gilmore  v.  H.  W.  Baker  Co.,  12 
Wash.  468,  41  Pac.  124. 

301  Mullone  v.  Klein,  55  N.  J.  Law, 
479.  27  Atl.  902,  ante,  note  291.  See 
Griffin  v.  Clark,  33  Barb.  (N.  Y.)  46. 

302  Powers  v.  De  O,  64  App.  Div. 
373,  72  N.  Y.   Supp.  103. 

A  demand  for  rent,  required  by  a 
local  statute,  as  a  preliminary  to  the 
proceeding,  may  be  made  by  an  em- 
ployee of  the  lessor's  agent,  this  be- 
ing a  class  of  duty  which  may  be 
delegated  by  an  agent.  Neiner  v.  Al- 
temeyer,  68  Mo.  App.  243. 

S03  Belin?ki  v.  Brand,  76  111.  App. 
404,  which  is  based  on  Espen  v. 
HinchlifEe,  131  111.  468,  23  N.  E.  592, 
where  there  is  a  strong  dictum  to 
that  effect,  which  is  in  turn  based 
upon  authorities  adjudging  that  the 
common-law  demand  as  a  prerequi- 
site for  breach  of  an  express  condi- 
tion may  be  waived.  The  same  is  as- 
sumed in  Woodward  v.  Cone,  73  111. 
241.  In  Kenyon  v.  Manley,  125  III. 
App.  615,  it  is  held  that  a  waiver  in 


terms  of  "notice  to  terminate  the 
tenancy"  dispenses  with  the  notice 
required  by  the  statute  in  order  to 
terminate  a  tenancy  for  nonpayment 
of  rent.  Eichart  v.  Bargas,  51  Ky. 
(12  B.  Mon.)  462,  is  also  to  the  effect 
that  the  parties  may  by  agreement 
dispense  with  the  requirement  of 
notice. 

304  See  Wolfer  v.  Hurst,  47  Or.  156, 
80  Pac.  419,  82  Pac.  20.  Tn  Pennsyl- 
vania there  is  one  decision  that  the 
parties  cannot,  by  stipulation,  fix  a 
time  for  notice  less  than  that  named 
in  the  statute.  McCloud  v.  Jaggers, 
3  Phila.  304.  The  contrary  seems  to 
be  assumed  in  Hopkins  v.  McClel- 
land, 8  Phila.  302,  and  presumably 
the  courts  of  that  state  would  follow 
the  same  rule  in  this  regard  as  that 
which  they  have  adopted  as  to  the 
notice  to  quit  as  a  prerequisite  to  a 
proceeding  against  a  tenant  holding 
over,  that  it  may  be  waived.  See 
ante,  note  210. 


274 


NONPAYMENT  OF  RENT.  17G5 


(e)  Service  of  notice.  The  statutes  of  several  states  contain 
provisions  as  to  the  mode  of  service  of  the  notice  in  case  the  ten- 
ant is  not  found,  or  the  premises  are  vacant,305  but  it  has  appar- 
ently been  decided  that,  even  without  any  express  provision  to 
that  effect,  the  notice  to  pay  the  rent  or  deliver  up  possession 
may  be  served  by  delivery  on  the  premises  to  a  member  of  the 
tenant's  family  of  suitable  age  and  discretion.soe  And  it  has 
been  held  that,  where  a  notice  to  quit  for  nonpayment  of  rent  was 
left  at  the  tenant's  residence,  not  on  the  demised  premises,  and 
another  person,  whose  attention  was  called  to  it,  notified  the 
tenant  thereof  the  following  day,  the  period  of  notice  prescribed 
by  the  statute  began  to  run  from  the  receipt  of  the  notice  by  the 
tenant.30  7  Where  the  statute  provided  that  the  notice  might 
be  served  by  delivery  to  the  tenant  or  by  leaving  it  with  some 
person  residing  on  or  in  possession  of  the  premises,  it  was  held  to 
be  sufficient  that  it  was  delivered  to  the  father  of  the  tenant,  and 
the  same  day  handed  by  him  to  the  tenant,  though  the  father  was 
neither  residing  on  or  in  possession  of  the  premises-'^'^s 

A  requirement  that  the  notice  be  "delivered"  to  the  tenant  is 
not  satisfied  by  merely  reading  it  to  him.^o^ 

The  service  of  the  notice  need  not  be  by  an  officer,  in  the  ab- 
sence of  a  specific  requirement  to  that  effect.^^*^ 

The  burden  is  on  plaintiff  to  show  that  the  service  was  in 
compliance  with  the  statute.^n  There  is  no  sufficient  proof  of 
service  of  the  demand  or  notice  when  the  complainant  merely  pro- 
duces a  copy  of  a  letter  containing  the  demand  or  notice,  which 
letter  is  alleged  by  him  to  have  been  mailed  to  the  tenant,  and 
also  a  registered  letter  receipt  signed  by  the  name  of  the  tenant 
"per"  a  third  person,  it  not  being  shown  what  relation  such  per- 
son bore  to  the  tenant,  nor  why  personal  service  was  not  made.^i^ 

305  California    Code    Civ.    Proc.    §  soc  McSloy  v.  Ryan,  27  Mich.  110. 

11G2;    Florida  Gen.  St.  1906,  §  2227;  And  see  Hazeltine  v.  Colburn,  31  N. 

Idaho  Code  Civ.  Proc.  1901,  §  3977;  H.  466,  ahcl  ante,  §  274  a  (3)   (f). 

Montana   Rev.    Codes    1907,    §    7272;  307  Hodgldns  v.  Price,  137  Mass.  13. 

Nelraska   Comp.    St.    1905,    §    7527;  aos  parnam  v.  Hohman,  90  111.  312. 

New  York  Code   Civ.  Proc.  §§   2231,  309  Jenkins  v.  Jenkins,  63  Ind.  415. 

2240  (see  Posson  v.  Dean,  8  Civ.  Proc.  sio  Farnam  v.  Hohman,  90  111.  312. 

R.   177) ;    Utah  Comp.  Laws  1907,   §  3^1  Tolman    v.    Heading,    11    App. 

3578;   Washington,  Ball.  Ann.  Codes  Div.  264,  42  N.  Y.  Supp.  217. 

&  St.  §  .^529;  TT^iscoji'^m  Rev.  St.  1898.  312  Henderson  v.    Carbondale   Coal 

§    3358;    Wyoming   Rev.   St.    1899,    §  &  Coke  Co.,  140  U.  S.  25,  35  I^w.  Ed. 

4487.  382.    It  does  not  appear  clearly  from 


1766  SUMMARY  PROCEEDINGS.  §  274 

It  has  been  held  that  service  of  the  notice  cannot  he  proven  by 
affidavit  of  the  j^er.son  making  it.^^^ 

(f)  Waiver  of  notice  given.  A  notice  was  regarded  as  insuffi- 
'^'.ient  to  support  a  proceeding  for  possession  when  the  statute  pro- 
vided for  a  notice  to  quit  the  premises  "for  which  the  action  is 
about  to  be  brought,"  and  nearly  a  year  was  allowed  to  elapse 
after  the  notice  before  the  beginning  of  the  action.-'^^'*  But  sixty 
days'  delay  in  instituting  the  proceeding  has  been  held  not  to 
involve  a  waiver  of  the  notice.^^^  It  is  said  that  a  notice  given 
by  the  landlord  is  "waived"  by  him  if,  after  giving  it,  he  accepts 
the  personal  agreement  of  a  third  person  to  be  surety  for  the 
rent.^^^  The  tenant's  continuance  in  possession  after  the  time 
named  for  quitting,  and  the  landlord's  conduct  in  allowing  it,  have 
been  regarded,  in  connection  with  the  continued  payment  and  ac- 
ceptance of  rent,  as  evidence  of  a  waiver  proper  for  the  consider- 
ation of  a  jury .31 8* 

(5)  Counterclaim  as  defense.  In  a  summary  proceeding  to 
recover  possession  on  aeeount  of  nonpayment  of  rent,  the  tenant 
cannot  assert  that  an  ofl'set  or  counterclaim  exists  in  his  favor 
to  an  amount  sufficient  to  extinguish  the  claim  for  rent,  whether 
the  asserted  claim  on  his  part  arises  from  a  breach  of  covenant  by 
the  landlord  or  otherwise.^^^     It  has  been  remarked  that  the  ob- 

the  opinion  whether  the  proceeding  33   Am.   Dec.   228.     But  there  is  no 

was  or   was   not  under  the  express  waiver,  it  is  there  said,  if  the  third 

clause  of  forfeiture  for  nonpayment  person  merely  agrees  to  obtain  secu- 

of  rent.  rity,  which  he  fails  to  do. 

31S  Lacrabere  v.  Wise,  141  Cal.  554,  3ifia  Norris  v.  Morrill,  43  N.  H.  213. 

75  Pac.  185,  99  Am.  St.  Rep.  88.     It  As  to  the  effect  of  the  acceptance  of 

was  there  held  that  a  statutory  provi-  the  overdue  rent,  see  post,  §  274  d 

sion  that  an  affidavit  may  be  used  (7). 

to  prove  the  service  of  a  notice  in  an  317  vau  Every  v.  Ogg,  59  Cal.  563, 

action   or  special   proceeding  to    ob-  43  Am.  St.  Rep.  50;   Moroney  v.  Hel- 

tain    a    provisional    remedy   did   not  lings,  110  Cal.  219,  42  Pac.  560;  Bor- 

apply.  den  v.  Sackett,  113  Mass.  214;   Bar- 

314  Douglass  V.  Whitaker,  32  Kan.  ker  v.  Walbridge,  14  Minn.  469  (Gil. 
381,  4  Pac.  874.  But  contra  when  the  351) ;  McSloy  v.  Ryan,  27  Mich.  110; 
tenant'  repudiated  the  tenancy  on  re-  Peterson  v.  Kreuger,  67  Minn.  449,  70 
ceiving  the  notice.  Douglass  v.  An-  N.  W.  567;  People  v.  Kelsey,  14  Abb. 
derson,  32  Kan.  350,  4  Pac.  257.  Pr.   (N.  Y.)   372;   Durant  Land  Imp. 

315  McLain  v.  Nurnberg,  16  N.  D.  Co.  v.  East  River  Elec.  Co.,  15  Daly, 
144,  112  N.  W.  243.  337,   6  N.   Y.   Supp.   659;    Pearson  v. 

316  Whitney  v.  Swett,  22  N.  H.  10,  Germond,  83  Hun,  88,  31  N.  Y.  Supp. 


274 


NONPAYMENT  OF  RENT. 


1767 


ject  of  the  statute  in  providing  an  adequate  and  summary  method 
of  obtaining  possession  would  be  frustrated  if  the  tenant  could 
assert  defenses  of  this  character.^i^  In  one  state,  however,  a 
statute  has  been  adopted  expressly  providing  for  such  a  defense. 

The  view  that  the  tenant  has,  apart  from  statute,  no  right  to 
assert  a  counterclaim,  does  not  in  any  way  affect  his  right  to  show 
that  for  some  reason  there  is  no  rent  due  to  the  landlord,  as  when 
there  has  been  an  eviction  by  the  latter.^^o  it  has  been  regarded 
as  a  good  defense  that  a  garnishment  proceeding,  instituted 
a-ainst  the  tenant  by  the  landlord's  creditor,  is  pending,  a  stat- 
ute providing  that  all  right  of  action  for  money  garnished  shall 
be  suspended  by  such  a  proceeding.^si 


358;  Barnum  v.  Fitzpatrick,  42  N.  Y. 
St.  Rep.  179,  16  N.  Y.  Supp.  934; 
Ralph  V.  Lomer,  3  Wash.  401,  28  Pac. 
760;  Carmack  v.  Drum,  27  Wash.  382, 
67  Pac.  808;  Hunter  v.  Porter,  10 
Idaho,  72,  86,  77  Pac.  434.  In  Barn- 
um V.  Keeler,  33  Conn.  209,  it  is 
questioned  whether  a  counterclaim 
arising  from  breach  of  the  landlord's 
covenant  could  be  asserted  in  such  a 
proceeding.  The  decision  was  based 
on  the  fact  that  the  asserted  damages 
did  not  equal  the  rent  due. 

318  Phillips     V.      Port      Townsend 
Lodge,  8  Wash.  529,  36  Pac.  476. 

319  New  York  Code  Civ.  Proc.  § 
2244,  as  amended  by  Laws  1893,  c. 
705,  authorizes  the  tenant  to  set  forth 
"a  statement  of  any  new  matter  con- 
stituting a  legal  or  equitable  defense 
or  counterclaim,"  and  provides  that 
"such  defense  or  counterclaim  may 
be  set  up  and  established  as  though 
the  claim  for  rent  in  such  proceeding 
was  the  subject  of  an  action."  This 
statute  does  not  authorize  an  affirma- 
tive money  judgment  in  favor  of  the 
tenant.  Wulff  v.  Cilento,  28  Misc. 
551,  59  N.  Y.  Supp.  525.  In  a  lower 
court  this  statute  has,  somewhat  sin- 
gularly, been  given  the  effect  of  au- 
thorizing the  tenant  to  deny  his 
landlord's  title  in   such  a  proceeding. 


See  In  re  McCormick,  30  Misc.  285, 
63  N.  Y.  Supp.  492.  The  case  of  Lieb- 
mann's  Sons'  Brew.  Co.  v.  DeNicolo, 
46  Misc.  268,  91  N.  Y.  Supp.  791. 
seems  adverse  to  the  right  to  assert 
a  breach  of  covenant  by  the  lessor  as 
a  counterclaim  under  this  statute.  A 
breach  of  covenant,  to  be  available 
under  this  statute,  must  be  pleaded 
as  a  counterclaim.  Jefferson  Real 
Estate  Co.  v.  Hiller,  39  Misc.  784,  81 
N.  Y.  Supp.  374. 

320  Wheelock  v.  Warschauer,  34 
Cal.  265;  Steinback  v.  Krone,  36  Cal. 
303;  Skaggs  v.  Emerson,  50  Cal.  3; 
Witte  v.  Quinn,  38  Mo.  App.  681; 
Hamilton  v.  Graybill,  19  Misc.  521,  43 
N.  Y.  Supp.  1079;  Ferber  v.  Apfel, 
113  App.  Div.  720,  99  N.  Y.  Supp.  215. 
See  Wetterer  v.  Soubirous,  22  Misc. 
739,  49  N.  Y.  Supp.  1043;  Seigel  v. 
Neary,  38  Misc.  297,  77  N.  Y.  Supp. 
854.  And  so  he  may  show  that  the 
rent  was  reduced,  in  accordance  with 
the  stipulations  of  the  lease,  by  his 
deprivation  of  the  enjoyment  of  the 
premises  owing  to  repairs  made  by 
the  landlord.  Durant  Land  Imp.  Co. 
V.  East  River  Elec.  Co.,  17  Civ.  Proc. 
R.  224,  15  Daly,  337,  6  N.  Y.  Supp. 

659. 

321  O'Connor  v.  White,  124  Mich.  22, 
82  N.  W.  664.     It  was  held  to  be  im- 


1768  SUMMARY  PROCEEDINGS.  §  274 

(6)  Waiver  of  right  to  maintain  proceeding.  The  courts  have 
occasionally  recognized  the  possibility  of  a  waiver  by  the  land- 
lord of  the  right  to  maintain  a  summary  proceeding  on  account  of 
nonpayment  of  rent.  The  taking  of  the  tenant's  note  for  past 
due  rent  and  the  acceptance  of  rent  subsequently  accruing  have 
been  regarded  as  constituting  a  waiver  of  the  right  to  maintain 
the  proceeding  on  account  of  the  nonpayment  of  the  former,322 
though  a  different  view  seems  to  have  been  adopted  as  to  the 
mere  taking  of  a  note  for  the  rent.^^^  tj^^  acceptance  of  subse- 
quent rent  alone  has  also  been  regarded  as  constituting  a  waiver 
of  the  right.324.  325  There  is  one  decision  to  the  effect  that  a  levy 
of  distress  operates  as  a  waiver.326  The  taking  of  security  for 
the  rent  does  not  involve  a  waiver  in  this  regard,3-7  nor  does  the 
bringing  of  an  action  therefor.^^'s 

That  the  tenant  has  paid  part  of  the  arrears  of  rent,  and  that 
this  payment  has  been  accepted  by  the  landlord,  does  not,  it  would 
seem  clear,  preclude  a  proceeding  for  nonpayment  of  the  bal- 
ance, and  it  has  been  so  decided.329  In  one  state,  however,  it  has 
been  decided  that  payment  of  part  of  an  installment  of  rent  pre- 
cludes a  proceeding  for  nonpayment  of  the  balance,  at  least  un- 
til the  period  covered  by  such  part  payment  has  elapsed.^so.  331 

material   that   the   tenant    informed  826  Wilder    v.    Eubanks,  21  "Wend, 

the  creditor  of  the  indebtedness  and  (N.  Y.)  587. 

acted  in  collusion  with  the  creditor.  s2t  People  v.  McAdam,  59  How.  Pr. 

322  Horn   V.    Peteler,   16   Mo.   App.  (N.   Y.)    19.     See   Brainard   v.   Hud- 


438. 


son.  1  City  Ct.  R.    (N.  Y.)   448. 


323  Evans  V.  Voght,  8  Mo.  App.  575.  sss  See  ante,  at  note  253. 

This   view  Is  indicated   in   Spiro  v.  329  Durant  Land  Imp.  Co.  v.  East 

Barkin,  30  Misc.  87,  61  N.  Y.  Supp.  River   Elec.  Co.,  15   Daly,  337,  6   N. 

870,  it  being  said  that  the  proceed-  y.    Siipp.    659;    Barnum   v.    Fitzpat- 

ing  cannot  be  brought  till  after  the  rick,  46  N.  Y.  St.  Rep.  891.  19  N.  Y. 

note  matures.  Supp.  385;  Bennett  v.  Nick,  29  Misc. 

324,325  Wolff  V.  Shlukle,  4  Mo.  App.  632,  61  N.  Y.  Supp.  106.  Where  the 
197;  Mooers  v.  Martin,  23  Mo.  App.  payment  was  to  be  in  part  in 
654;  Id.,  99  Mo.  94,  12  S.  W.  522;  "board"  and  in  part  in  cash,  the  fact 
Neiner  v.  Altemeyer,  68  Mo.  App.  that  the  board  was  furnished  did 
243;  Stover  v.  Hazelbaker,  42  Neb.  not  prevent  a  proceeding  for  non- 
393,  60  N.  W.  597  (semble).  The  payment  of  the  cash.  Mahan  v.  Se- 
bringing  of  an  action  for  such  rent  well,  25  N.  Y.  St.  Rep.  930,  6  N.  Y. 
has     likewise     been     so     regarded.  Supp.  662. 

Rich   V.   Rose,   124   Ky.   669,   30  Ky.  330,331  Barber   t.   Stone,   104   Mich. 

Law  Rep.  925,  99  S.  W.  953.  90,  62  N.  W.  139. 


.  274  NONPAYMENT  OF  RENT.  1769 

(7)  Payment  or  tender  of  rent— Redemption.  A  tender  of  the 
rent,  made  before  the  giving  of  the  statutory  demand  for  posses- 
sion or  notice  to  quit,  is  a  bar  to  a  proceeding  to  recover  possession 
on  account  of  the  nonpayment  of  the  rent.^^a 

The  statute,  in  providing  for  a  notice  to  quit,  occasionally  pro- 
vides that  the  rent  may  be  paid  within  the  period  named  for  the 
notice  3-'3  or  requires  the  notice  to  be  in  the  alternative,  for  the 
payment  of  rent  or  delivery  of  possession.334  But  it  has  been  de- 
cided that  even  when  the  statute  does  not  in  terms  provide  for 
the  payment  of  the  overdue  rent  within  the  period  during  which 
the  notice  is  to  run,  the  purpose  of  the  provision,  for  a  certain 
len-th  of  notice  before  the  tenant  is  liable  to  suit  for  disposses- 
sion must  have  been  to  enable  the  tenant  to  pay,  and  that  he  has 
until  the  expiration  of  the  notice  in  which  to  pay  or  tender  the 
rent,  and  so  prevent  his  expulsion.^ss  ,    ^  ,   ^, 

After  the  period  of  the  notice  has  expired,  it  has  been  held,  the 
tenant  has  no  longer  this  right,33e  and  a  like  view  has  been  taken 
as  regards  a  tender  after  the  commencement  of  the  proceeding.-^ 
But  occasionally  the  statute  provides  that  the  tenant  may  pay  the 

»32  Fisher  V.  Smith.  48  111.  184;  842.  But  a  different  view  is  indi- 
Tuttle  V  Bean,  54  Mass.  (13  Mete.)  caled  in  Norris  v.  Morrill.  43  N.  H 
275-  North  Chicago  St.  R.  Co.  v.  Le  213;  and  in  Kimball  v.  Rowland  72 
Grand  Co.,  95  111.  App.  435.  In  Mass.  (6  Gray)  224.  it  was  held 
the  case  first  cited  it  was  held  that  a  that,  after  the  giving  of  notice  to 
tender  at  the  place  where  the  rent  quit  under  a  statute  authorizing  the 
was  payable  was  no  defense,  since  termination  of  a  tenancy  at  will  for 
the  tenant  had,  by  a  statement  to  nonpayment  of  rent  by  fourteen 
the  landlord  that  he  would  call  and  days'  notice,  the  landlord  d^^  not,  by 
nav  it  misled  the  landlord,  so  that  accepting  the  overdue  rent,  lose  his 
the  latter  was  not  present  to  receive  right  to  terminate  the  lease,  he  ex- 
it at  such  place.  Pressly   reserving  this  right  on   ac- 

333  See   Indiana,   Burns'    Ann.    St.    cepting  the  rent. 
1901    ^  7092-   Michigan  Comp.  Laws       336  Roussel  v.   Kelly,   41   CaJ    3b0, 
1  Rq7        11164  Ralpli  V.  Lomer,  3  Wash.  401,  28  Pac. 

Li  See  staiutes  referred  to  ante.  760.  See  Tuttle  v.  Bean,  54  Mas.. 
note  279.  and  Johnston  v.  Hargrove,  (13  Mete.)  275.  where  the  court  re- 
^1.       '  frains  from  deciding  this  question. 

335  Chadwick  V.  Parker.  44  111.  326;  33.  stover  v.  Chasse,  9  Misc.  45,  29 
Chapman  v  Kirby,  49  111.  211;  N.  Y.  Supp.  291,  a  tender  being  al- 
Fisher  V  Smith,  48  111.  184;  Lasher  lowed  by  statute  as  a  defense  only 
V  Graves  124  111  App.  646.  To  the  when  the  complaint  demands  judg- 
same  effect  is  Dakota  Hot   Springs    ment  for  a  sum  of  money. 


Co. 


V.  Young,  9  S.  D.  577.  70  N.  W. 


1770  SUMMARY  PROCEEDINGS.  §  274 

rent  and  costs  before  the  judgment  of  dispossession  is  ren- 
dered,^^^  or  before  the  issuance  or  execution  of  the  writ.^^"  In 
one  state  it  was  decided  that  a  statute  authorizing  the  tenant, 
after  dispossession  under  such  proceedings,  to  pay,  within  six 
months,  the  rent,  costs,  and  interest,  and  thereby  regain  posses- 
gJQQ  340  impliedly  authorized  hira  to  do  so  before  dispossession.^^^ 
In  another  state  it  has  been  decided  that,  when  the  statute  pro- 
vides that  one  against  whom  a  final  order  of  dispossession  is  made 
may  stay  the  issue  of  a  warrant  by  payment  of  the  rent  duo  and 
costs,  the  tenant  may  pay  the  rent  and  costs  into  court,  although 
no  formal  order  of  removal  has  been  rendered,  he  electing  not 
to  try  any  issue.3-*2 

There  are  in  a  few  states  provisions  authorizing  the  tenant,  or 
other  person  interested,  even  after  dispossossion  unrlor  the  ■iM^"''^- 
ment  in  the  proceeding,  to  regain  possession  by  paying  or  ten- 
dering the  rent  due  and  costs,^-*^  this  being  occasiunaily  reierrcJ 

8SS  Arkansas,  Kirby's  Dig.  St.  1904,  stay  may  be  obtained  after  Judgment 

§  4705   (Before  judgment) ;  Missouri  on  appeal.     Flanneken  v.  Wright,  64 

Rev.  St.  1899,  §  4133  (At     hearing).  Miss.  217,  1  So.  157.     Montana  Rev. 

■iS9  California    Code    Civ.    Proc.    §  Codes   1907,   §   7283    (same   as   Call- 

1174    (Execution  not  to  issue  until  fornia) ;   New  York  Code  Civ.  Proc. 

five    days    after    judgment,    within  §    2254    (After   order   of   restitution 

which  time  any  person  Interested  in  and    before    warrant    Issued,    tenant 

the  term  may  pay  Into  court  the  rent  may   pay   rent  and   obtain   a  stay); 

with    interest).     That   the    right    is  Pennsylvania,  Pepper  &  Lewis'  Dig. 

lost  by  relinquishment  of  possession,  Laws,    "Landlord    &    Tenant,"    §    34 

see  Owen   v.   Herzihoff,  2  Cal.  App.  (May  pay  rent  and  costs  at  any  time 

622,   84   Pac.   274.     Idaho  Code   Civ.  before  execution  and  supersede  judg- 

Proc.   §   3990    (same  as  California);  ment) ;    Utah    Comp.    Laws    1907,    § 

MassacJmsetts    Rev.    Laws    1902,    c.  3584  (same  as  California) ;  Washing- 

129,    §§    11,    12    (Lease    terminated  ton.  Ball.   Ann.   Codes  &  St.   §   5542 

unless    tenant,    at    least    four    days  (same    as     California) ;     Wisconsin 

before  return  day  of  the  writ,  pays  Rev.  St.  1898,  §  3371  (May  stay  pro- 

or    tenders    rent     due    with     inter-  ceedings  by  paying  rent  and  costs), 

est   and   cost).       This   implies   that  s*"^  Minnesota   Rev.    Laws    1905,    § 

tender   may   be   made    at   any    time  3328. 

after  notice  to  quit,  and  it  is  suffi-  3*1  George    v.   Mahoney,    62    Minn, 

cient    to    tender    the    rent    without  370,  64  N.  W.  911. 

the  taxes   due,  although   the  tenant  3-*2  Flewcllen  v.  Lent,  91  App.  Dlv. 

has  agreed  to  pay  taxes.     Hodgkins  430,  86  N.  Y.  Supp.  919. 

V.   Price,  137   Mass.   13.     Mississippi  343  Arkansas.  Kirby's  Dig.  St.  1904, 

Code  1906,  §  2894   (Issue  of  warrant  §   4707    (Authorizes  a  mortgagee  of 

to  be  stayed    if  before  its  issue  the  the  leasehold  to   redeem  within   six 

rent  due  and  costs  are  paid).     Such  months,    while    section    4471    recog- 


§  274  NONPAYMENT  OF  RENT.  1771 

to  as  "redemption."  In  New  York  it  is  provided  that,  in  case  the 
term  has  five  years  yet  to  run,  the  lessee,  his  executor,  adminis- 
trator or  assignee,  may,  within  one  year,  redeem  by  paying  rent 
and  interest,  with  charges  and  costs  incurred,  whereupon  he  will 
hold  as  before,^^^  and  a  judgment  creditor  of  the  lessee  and  a 
mortgage  of  the  leasehold  are  given  the  same  right.-"^^^  The  stat- 
ute provides  for  the  filing  of  a  petition  for  redemption,  and  re- 
quires the  court  to  establish  the  rights  of  the  parties  by  "such 
a  final  order  as  justice  requires.  "^^^ 

The  burden  of  showing  a  payment  of  the  rent  in  order  to  pre- 

nizes  a  right  in  the  tenant  to  relief  money  be  paid  into  court.     Bien  v. 

in  equity  by  providing  that  the  ten-  Bixby,  18  Misc.  415,  41  N.  Y.  Supp. 

ant's  rights  are  barred  if  he  fails  to  433.     Tender  of  the  excess  of  the  ar- 

ask  such  relief  within  sx  months);  rears  of  rent  and  costs  and  charges 

Calfornia    Code    Civ.    Proc.    §    1179  over  the  profits  received  by  the  land- 

( Relief  in  case  of  hardship,  if  appli-  lord  during  the  interval  of  his  pos- 

catlon    for    relief   made    within    six  session     is     Insufficient.     Pursell    v. 

months     after     the     forfeiture     de-  New  York  Life  Ins.  &  Trust  Co,  42 

Glared);   Minnesota  Rev.  Laws  1905,  N.    Y.    Super.    Ct.    (10    Jones   &   S.) 

§    3328    (Tenant    entitled    to   be   re-  383.     This   provision   of   the  statute 

stored    to   possession    on    paying   or  does   not  apply  when  the  tenant  is 

bringing     into     court,     within     six  dispossessed   under  Code  Civ.   Proc. 

months      after     dispossession,      the  §  2231  for  the  nonpayment  of  taxes 

amount    of    the    rent,    interest,    and  as  well  as  of  rent.     Witty  v.  Acton, 

costs).     See  Wacholz  v.  Griesgraber,  58    Hun,    552,    12    N.    Y.    Supp.    757. 

70  Minn.  220,  73  N.  W.  7.      Washing-  The  term  named   in  a  covenant  for 

ton.    Ball.    Ann.    Codes    &    St.    5545  renewal  cannot,  it  has  been  decided, 

(Court    may    relieve    if    application  be   added    to    the    original    term    in 

made,  within  thirty  days  after  judg-  order  to  make  a  five-year  term  with- 

ment   of   forfeiture,   by   the   tenant.  In  the  statute.     Bokee  v.  Hamersley, 

subtenant,   mortgagee   or   other  per-  16  How.  Pr.  (N.  Y.)  461.     As  to  the 

son  interested).  right   of  a  mortgagee  of  the   lease- 

344  Code  Civ.  Proc.  §  2256.     It  has  hold,  who  has  taken  a  new  lease,  to 

been   decided  that  the  lessee  of  the  foreclose    the    tenant's    outstanding 

tenant  has  no  right  to  redeem  under  right  of  redemption,  see  Chumar  v. 

this    statute.     Koppel    v.    Tilyou,    31  Melvin,  53  Misc.  460,  105  N.  Y.  Supp. 

Civ.  Proc.  R.  185,  70  N.  Y.  Supp.  910.  27. 

Since  the  effect  of  the  tender  of  rent  345  Code  Civ.  Proc.  §  2257. 
and  costs  is  not  to  discharge  the  S46  Code  Civ.  Proc.  §  2259. 
landlord's  claim,  but  only  to  enable        The     final      adjustment      of      the 

the  tenant  to  obtain  a  standing  in  amount  to  be  paid  by  the  tenant  in 

court  in  order  to  have  all  rights  and  order  to  redeem  is  based  on  general 

liabilities  adjusted,  the  tender  need  equitable  principles,  and  not  strictly 
not    be    kept    good,    nor    need    the 


1772  SUMMARY  PROCEEDINGS.  §  274 

vent  a  jndcrmcnt  for  the  landlord  would  seem  to  lie  npon  the 
tenant,^^'^  but  in  one  state  it  has  been  said  to  be  for  the  landlord 
to  show  that  the  rent  was  not  paid  before  the  expiration  of  the 
notiee.3^8  Any  provision  of  the  statute  as  to  notice  to  the  land- 
lord, as  a  prerequisite  to  an  assertion  of  the  right  of  redemption, 
must  obviously  be  complied  with.s-'^ 

e.  Breach  of  express  stipulation  other  than  for  rent.  Ordi- 
narily the  breach  by  the  tenant  of  a  covenant  or  stipulation  to  be 
performed  by  him  can  give  no  right  to  the  landlord  to  maintain  a 
summary  proceeding  to  recover  possession.-'^^^  In  some  states, 
however,  the  statutes  authorize  such  proceedings  by  the  landlord 
who  has  violated  or  who  has  failed  to  perform  some  stipulation 
or  covenant  of  the  lease,^'^^  and  in  a  number  a  special  reference  is 

on  the  covenants  of  the  lease,  and  ground  that  if  one  party  to  a  con- 
while  the  tenant  should  be  required  tract  refuses  to  perform,  the  other 
to  comply  with  such  covenants,  as  party  may  rescind  the  contract 
by  paying  taxes,  insurance  and  the  The  decision  is  opposed  to  the  nu- 
cost  of  repairs,  he  has  also  been  re-  merous  decisions  to  the  effect  that 
quiied  to  repay  outlays  made  by  the  there  is  no  right  of  re-entry  upon 
landlord  to  make  a  building  on  the  breach  of  a  covenant  by  the  lessee 
premises  fire  proof,  in  accordance  (see  ante,  §  194  b,  note  62),  and 
with  the  orders  of  the  municipal  represents  but  one  of  the  numer- 
authorlties,  the  building  belonging  ous  errors  arising  from  the  mis- 
to  the  tenant,  with  an  option  in  the  taken  view  that  a  lease  is  a  mere 
landlord  to  purchase  it,  and  also  to  contract.  See  ante,  §  16. 
repay  the  wages  of  custodians  and  3r,i  Arizona  Rev.  St.  1901,  §  2693 
the  rental  value  of  furniture  pro-  (When  tenant  shall  violate  any  pro- 
cured by  the  landlord  for  the  build-  vision  of  the  lease,  landlord  may  rc- 
Ing.  Bien  v.  Bixby,  22  Misc.  126,  48  enter,  and  may,  without  formal  de- 
N.  Y.  Supp.  810.  mand  or  entry,  commence  proceed- 
347  Collender  v.  Smith,  20  Misc.  ing  for  possession) ;  California  Code 
612,  45  N.  Y.  Supp.  1130.  Civ.  Proc.  §  1161  (Unlav.-ful  detain- 
er Dakota  Hot  Springs  Co.  v.  er  when  tenant  continues  in  posses- 
Young.  9  S.  D.  577,  70  N.  W.  842.  sion  after  a  neglect  to  perform  any 
349  Bateman  v.  Superior  Ct.  of  condition  or  covenant,  other  than 
San  Francisco,  139  Cal.  140,  72  Pac.  that  for  rent,  including  any  cove- 
922.  nant  not  to  assign  or  sublet,  and 
850 Bauer  v.  Knoble,  51  Minn.  358,  three  days'  notice  to  quit);  Colo- 
53  N.  W.  805.  And  see  ante,  at  note  rado.  Mills'  Ann.  St.  1891,  §  1973 
235.  But  in  Buckner  v.  Warren,  41  (substantially  same  as  California); 
Ark.  532,  4S  Am.  Rep.  46,  it  is  de-  Idaho  Code  Civ.  Proc.  §  3976  (s-.me 
cided  that  the  breach  by  the  lessee  as  California) ;  Illinois,  Hurd's  Rev. 
of  his  covenant  authorizes  the  les-  St.  1905,  c.  80,  §  9  (When  default  is 
Bcr    to    resume    possession,    on    the  made   in    any   of   the   terms   of  the 


§274 


BREACH  OF  STIPULATION. 


1773 


made  to  an  assignment  or  sublease  by  the  tenant  in  violation  of 
his  agreement,  as  being  ground  for  the  proeeeding.^^^ 

In  one  state  the  tenant's  failure  to  pay  taxes  or  assessments  in 
accordance  with  his  stipulation  is  made  ground  for  the  proceed- 
ing.353 

That  the  landlord  is,  by  the  express  terms  of  the  lease,  given  a 
right  to  re-enter  upon  a  default,  does  not,  it  seems  clear,  affect  his 
right  to  proceed  under  the  statutory  provision.^^* 

In  some  states  there  are  provisions  authorizing  the  proceeding 
against  a  tenant  holding  over  "contrary  to"  the  terms  or  condi- 
tions of  his  lease.^^^     What  may  be  the  meaning  of  such  a  provi- 


lease  and  after  ten  days'  notice) ; 
Utah  Comp.  Laws  1907,  §  3575  (If 
tenant  continues  in  possession  after 
neglect  to  perform  any  condition  or 
covenant  of  the  lease  and  after  five 
days'  notice  to  perform) ;  Washing- 
ton, Ball.  Ann.  Codes  &  St.  §  5527 
(4)     (substantially   same   as   Utah). 

352  California  Code  Civ.  Proc.  § 
1161  (See  Bernero  v.  Allen,  68  Cal. 
505,  9  Pac.  429) ;  Colorado,  Mills' 
Ann.  St.  1891,  §  1973;  Idaho  Code 
Civ.  Proc.  §  3976;  Utah  Comp.  Laws 
1907,  §  3375  (4);  Wasiiington,  Ball. 
Ann.  Codes  &  St.  §  5527  (4). 

353  New  York  Code  Civ.  Proc.  § 
2231  (3)  (If  tenant  in  a  city,  having 
agreed  to  pay  taxes  or  assessments, 
fails  to  do  so  for  sixty  days  after 
they  become  payable,  and  after  three 
days*  notice  in  writing  to  pay  thom 
or  deliver  up  possession).  In  Bix- 
by  v.  Casino  Co.,  14  Misc.  346,  35  N. 
Y.  Supp.  677,  it  was  decided  by  two 
judges  that  an  express  provision  in 
the  lease  that  summary  proceedings 
should  lie  in  case  of  nonpayment  of 
rent  raised  an  inference  of  an  agree- 
ment that  they  should  not  lie,  under 
this  clause  of  the  statute,  for  non- 
payment of  taxes. 

There  is  no  right  of  redemption 
in  case  of  nonpayment  of  taxes,  un- 


der the  New  York  statute,  as  there 
is  in  case  oi  nonpayment  of  rent, 
and  consequently  if,  when  a  proceed- 
ing is  instituted  for  nonpayment 
both  of  rent  and  taxes,  the  taxes 
are  paid  pending  the  proceeding,  it 
is  prejudicial  error  to  make  an 
order  awarding  possession  by  reason 
of  the  nonpayment  of  taxes  as  well 
as  of  rent,  and  the  tenant  can  de- 
mand a  modification  thereof.  Pea- 
body  V.  Long  Acre  Square  Bldg.  Co., 
188  N.  Y.  103,  80  N.  E.  657. 

354  Fleishauer  v.  Bell,  44  Misc.  240, 
88  N.  Y.  Supp.  922;  Crosby  v.  Jarvis, 
46  Misc.  436,  92  N.  Y.  Supp.  229. 

355  Iowa  Code  1897,  §  4208  (Tenant 
holding  over  contrary  to  the  terms 
of  the  lease) ;  Michigan  Comp.  Laws 
1897,  §  11164  (Tenant  holding  over 
contrary  to  the  terms  and  conditions 
of  the  lease) ;  Minnesota  Rev.  Laws 
1905,  §  4038  (same);  Nexo  Mexico 
Comp.  Laws  1897,  §  3345  (Tenant 
holding  over  contrary  to  the  terms 
of  his  lease) ;  Oregon,  Bell.  &  C. 
Codes,  §  5755  (Tenant  retaining  pos- 
session contrary  to  any  condition  or 
covenant  of  the  lease) ;  Wisconsin 
Rev.  St.  1898,  §  3358  (Tenant  hold- 
ing over  contrary  to  any  condition 
or  covenant,  and  after  three  days'  no- 
tice to  quit). 


1774  SUMMARY  PROCEEDINGS.  §  274 

sion  it  is  difTiciilt  to  say.  In  Michijjan  it  was  docided  to  apply 
only  when  there  are  "conditions  or  covenants  which  are  in  tho 
nature  of  limitations,  by  which,  upon  the  happening  of  the  contin- 
gency, the  estate  becomes  ipso  facto  terminated.  "^''O  And  there  is 
a  later  decision  in  that  state  that  when  there  was  a  covenant 
against  assignment,  Avith  an  express  condition  of  re-entry  for 
breach  of  any  covenant,  an  assignment  brought  the  case  within 
the  statute.35^  In  Minnesota  it  is  said  that,  to  be  within  the  stat- 
ute, "the  holding  over  must  be  after  a  determination  of  the  lease 
by  a  forfeiture  or  in  pursuance  of  a  proviso  in  the  lease  giving  a 
right  of  re-entry.  "358  j^  somewhat  similar  provision,  authorizing 
the  proceeding  when  the  lease  "shall  terminate  by  lapse  of  time 
or  by  reason  of  any  express  stipulation,"  has  been  construed  not 
to  authorize  the  proceeding  upon  a  breach  of  a  mere  covenant.'*'^^ 
In  another  state,  however,  a  statute  authorizing  the  proceeding 
against  a  tenant  holding  "without  right  after  breach  of  a  stipula- 
tion contained  in  the  lease"  appears  to  have  been  applied  when 
there  was  merely  a  breach  of  a  covenant  to  pay  rent.'''"^ 

Any  provision  of  the  statute  as  to  demand  or  notice  as  a  pre- 
requisite to  a  proceeding  to  recover  posses.'sion  for  failure  to 
comply  with  a  covenant  must  obviously  be  complied  with.'^ci  A 
statute  providing  that  a  notice  requiring  the  tenant  either  to  per- 
form the  covenant  or  relinquish  possession  shall  be  given,  but 
that  notice  need  not  be  given  if  the  covenant  broken  cannot  after- 
wards be  performed,  has  been  held  not  to  render  a  notice  neces- 
sary when  the  breach  is  of  a  covenant  not  to  sublet,382  or,  appar- 
ently, of  a  covenant  to  pay  taxes.^^s  But  the  clause  of  the  statute 
dispensing  with  notice  to  perform  in  such  case  docs  not  dispense 
with  the  necessity  of  a  notice  demanding  possession  as  a  prereq- 
uisite to  the  maintenance  of  the  proceeding.'^64     When  the  stat- 

356Langley  v.  Ross,  55  Mich.  163,  trary   to  Hadley  v.   Havens,   24   Vt. 

20   N.    W.    886.  520. 

S57  Marvin  v.  Hartz,  130  Mich.  26,  3oi  See    Opera    House    v.    Bert,    52 

89  N.  W.  557.  Cal.  471;   Iroquoig  Realty  Co.  v.  Iro- 

358  Bauer  v.  Knoble,  51  Minn.  358,  quois    Hotel    &    Apartment   Co.,    104 

53  N.  W.  805.  N.  Y.  Supp.  748. 

SB9  Lang  V.   Young,   34  Conn.   526.  382  Harloe  v.  Lanibie,  132  Cal.  133. 

seoHoran  v.    Thomas,   00  Vt.   325,  64    Pac.    88. 

13   Atl.    567.     rhe  opinion   does   not  ^os  Kelly  v.  Teague,  63  Cal.  68. 

discuss  the  meaning  of  the  statute,  3fi4  Schnittger    v.    Rose,     139    Cal. 

and  the  decision  appears  to  be  con-  656,  73  Pac.  449. 


§275 


STATUTES  OF  LIMITATION.  1775 


ute  thus  provides  for  a  notice  requiring  the  tenant,  in  the  alterna- 
tive, either  to  perform  the  covenant  or  to  relinquish  possession, 
the  notice  must  recite  the  breach  of  stipulation  relied  on  with 
sufficient  particularity  to  enable  the  defendant  to  correct  his  de- 
fault .3  65 

Even  though  a  breach  is  waived  by  the  acceptance  of  rent  sub- 
sequently accruing,  the  proceeding  will  lie  upon  a  subsequent 
breach.-"^66 

f.  Assignment  or  subletting.  In  two  stntcs  it  is  provided, 
without  reference  to  whether  there  is  a  stipulation  in  the  lease 
against  assignment  or  subletting,  that  if  a  tenant  for  a  term  less 
than  a  period  named,  or  at  will,  or  at  sufferance,  makes  an  as- 
signment or  sublease,  a  proceeding  to  recover  possession  may  be 
maintained  by  the  landlord.^^? 

g.  Bankruptcy.  In  one  state  it  is  provided  that  the  landlord' 
may  recover  possession  as  against  his  tenant  for  a  term  of  three 
years  or  less  if  the  latter  takes  the  benefit  of  the  insolvent  laws 
or  is  adjudicated  a  bankrupt.^^s 

§  275.    Statutes  of  limitation. 

There  are,  in  some  jurisdictions,  statutes  of  limitation  expressly 
applicable  to  proceedings  against  a  tenant  holding  over  or  to 
proceedings  for  unlawful  detainer.  It  is  sometimes  provided  that 
the  proceeding  must  be  instituted  within  a  specified  time  after 
the  accrual  of  the  cause  of  action,-''^^  and  sometimes,  within  a 

365Byrkett  v.   Gardner,  35  Wash.  E.   67;    Dickenson  v.   Petrie,  38   111. 

668,  77  Pac.  1048.  App.  155. 

It  has  been  held   that   when   th§  ^eo  jones  v.  Durrer,  96  Cal.  95,  30 

statute   authorized    a   proceeding   to  Pac.  1027. 

.  oc,-^^  „T^«r,  c  ^o'^ciit  in        ^^T  Kentucky  St.  1903,  §  2292;  Mis- 
recover  possession  upon  a  deiauit  in  »  .  ^  . 

^  .^     *        o   ^f  tv,^  lo^co  nnnn    ^ouri  Rev.  St.  1899,  §  4108. 
any  of  the  terms  of  the  lease  upon 

^  ...       *  -^       -.>,„„*        sfisNew   York    Code    Civ.    Proc.    § 

a  ten  days'  notice  to  quit,  without 

"any  other  notice  or  demand  of  pos-  \^  j^^,^^  ^^^^  ,^9,^  ^  ^217  (Thirty 

session."    the    proceeding   might    be  ^^^^,      peaceable     possession      with 

maintained  upon  a  default  in  rent,  j^^owledge     of     plaintiff) ;      Kansas 

without  any  demand  of  rent,  though  ^^j^     g^     ^9^5^    g    4gg3    ^^^     ^^^^ 

another  provision  authorized  a  pro-  years);    Ohio   Rev.   St.  1906,   §   6599 

ceeding    on    a    default    in    rent    pro-  (Two    years);     Oklahoma    Rev.    St. 

vided  there  was  a  previous  demand.  1903,  §  4214   (Two  years)  ;  West  Vir- 

Woods  V.  Soucy,  166  111.  407,  47  N.  ginia  Code  1906,  §  2162  (Two  years). 


1776  SUMMARY  PROCEEDINGS.  §  275 

specified  time  after  tlie  unlawful  dctainer,37o  or  after  the  com- 
menceraent  of  the  unlawful  detainer.^^i  In  at  least  one  state  a 
certain  period  after  the  termination  of  the  tenant's  estate  is 
named.3'^2 

It  has  apparently  been  decided  that  the  fact  that  a  statute  re- 
quires an  action  for  the  forcible  detention  of  real  property  to  be 
begun  within  a  specified  time  after  the  accrual  of  the  cause  of 
action  does  not  prevent  a  proceeding  on  account  of  the  nonpay- 
ment of  rent  which  has  been  due  for  that  length  of  time.^^^ 

It  has  been  decided  that,  where  the  statute  provides  that  the 
proceeding  shall  be  barred  by  "thirty  days'  peaceable  and  unin- 
terrupted possession,  with  the  knowledge  of  the  plaintiff,  after 
the  cause  of  action  accrued,"  the  service  of  the  statutory  notice 
to  quit  within  the  thirty  days  is  not  sufficient  to  preserve  the 
right  of  action,  but  the  proceeding  itself  must  be  commenced 
Mdthin  the  time  named;  and  it  was  also  decided  that  "the  knowl- 
edge of  the  plaintiff"  referred  to  in  the  statute  is  the  knowledge 
by  the  plaintiff  of  the  defendant's  possession,  and  not  of  the 
fact  that  a  cause  of  action  to  terminate  possession  has  accrued.^"' 

In  one  state  the  statute  provides  that  an  uninterrupted  posses- 
sion for  three  years  immediately  previous  to  suit  shall  bar  the  pro- 
ceeding "if  the  defendant's  estate  has  not  terminated  within  that 
time,"3'^5  and  this  proviso,  it  seems,  in  effect  gives  the  landlord 
three  years  after  the  termination  of  the  defendant's  estate  in 
which  to  institute  the  proceeding.  In  another  state  there  is,  in  the 
chapter  of  the  statutes  which  treats  of  forcible  entry  and  de- 
tainer, a  similar  clause  providing  that  three  years'  peaceable 
and  uninterrupted  possession  immediately  previous  to  suit  shall 
be  a  bar,  omitting,  however,  any  proviso  that  the  defendant's 
estate  shall  not  have  terminated  within  that  time.^'^  Such  a  pro- 
vision, applied  to  the  case  of  a  tenant  wrongfully  holding  over, 

370  Florida  Gen.  St.  1906,  §  2155  373  Maran  v.  Maran,  54  Kan.  270, 
(semble);  Kentucfcy  Civ.  Code  38  Pac.  268;  Donahoe  v.  Mitchem,  13 
Prac.    1895,    §    469;     Virginia    Code    Okl.  383,  74  Pac.  903. 

1904,   §   2716.  ^''■^  Heiple  v.   Reinhart,   100    Iowa, 

371  Arizona  Rev.  St.  1901,  §  2961.  525,  69  N.  W.  871. 

372  Minnesota  Rev.  Laws  1905,  §  375  Tennessee,  Shannon's  Code 
A039     (Proceeding    barred    by    three  1896,  §   5096. 

years'  quiet  possession  after  end  of  ^70  Arkansas,  Kirby's  Dig.  St.  1904, 
leasehold   estate).  §  3649. 


§  276  EQUITABLE  DEFENSES.  1777 

would  prechule  a  summary  proceeding  against  him  if  the  orig- 
inal lease  was  for  three  years  or  over,  or  if  the  term  had  been 
extended  so  as  to  make  the  total  period  of  permissive  possession 
cover  such  a  period.^'^'^  JRecognizing  the  absurdity  of  such  a  re- 
sult, it  was  held  that  the  provision,  in  its  literal  construction,  was 
intended  to  apply  only  to  cases  of  forcible  dispossession,  and  not 
to  the  case  of  one  who  entered  under  a  lease,  but  that  in  his  case 
the  period  named  should  be  computed  from  the  termination  of 
the  lease.^'^'s 

Occasionally  the  statute  provides  that  uninterrupted  posses- 
sion for  a  time  named  immediately  preceding  suit  shall  be  a 
bar  unless  the  defendant's  estate  is  terminated.^'^^  The  reference 
to  the  termination  of  the  defendant's  estate  is  perhaps  to  be 
construed  as  equivalent  to  the  words  "unless  the  defendant's 
estate  has  been  terminated  within  that  time,"  and  such  a  con- 
struction seems  to  have  been  placed  thereon  in  one  state.^^°  In 
one  state  it  was  held  that  a  statute,  thus  making  three  years' 
possession  a  bar  unless  the  defendant's  estate  was  terminated,  pre- 
cluded a  summary  proceeding  to  recover  possession  for  nonpay- 
ment of  rent,  if  the  defendant  had  already  been  in  occupation  un- 
der the  lease  for  three  years.^^^ 

In  the  absence  of  any  statutory  provision  bearing  on  the  subject, 
the  proceeding  is,  it  has  been  decided,  maintainable  so  long  as  the 
tenant  remains  in  possession,^^^  provided  he  has  not,  ])y  reason 
of  a  repudiation  of  the  tenancy  and  lapse  of  time,  acquired  ab- 
solute title.383 

§  276.    Equitable  defenses. 
Equitable  defenses  cannot  ordinarily  be  asserted  in  a  proceed- 

377  An  enactment  in  this  language,  assumed     without     discussion     that 

formerly  in  force  in  Maine,  was  ap-  such  is  the  meaning  of  the  statute, 

parently    so    construed.     Morton    v.  3.si  Brown    v.    Brackett,    26    Minn. 

Thompson.  13    Me.  162.  292,  3  N.  W.  705.     This  provision  was 

37S  Burke    v.     Hale,    9    Ark.     328.  subsequently  repealed.     See  Suchan- 

And  see  Mason  v.  Bascom,  42  Ky.  (3  eck  v.  Smith,  45  Minn.  26,  47  N.  W. 

B.  Mon.  269),  38  Am.  Dec.  186.  397;    Alworth   v.    Gordon,    81    Minn. 

579  Alabama    Code    1907,    §    4272;  445,  84  N.  W.  454. 

Massachusetts    Rev.    Laws    1902,    c.  3S2  Willis  v.   Harrell,   118  Ga.  906, 

181,  §  10.  45   S.   E.   794. 

3S0  Cunningham      v.      Davis,      175  3S3  See  ante,  §  4. 
Mass.  213.  56  N.   E.  2.     There  it  is 

L.  and  Ten.  112. 


1778 


SUMMARY  PROCEEDINGS. 


§277 


ing  of  this  character,  for  the  reason  that  such  a  proceeding  is 
legal  in  its  nature,  and  also,  frequently,  because  the  court,  being 
one  of  inferior  jurisdiction,  cannot  take  cognizance  of  such  de- 
fenses.384  But  in  some  states,  by  reason  of  legislation  allowing 
equitable  defenses  in  proceedings  at  law,  or  otherwise,  such  a 
defense  is  available  in  a  summary  proceeding.^ss 

§  277.    Title  to  premises. 

As  before  stated,  the  doctrine  that  a  tenant  is  precluded  from 
denying  his  landlord's  title  applies  in  the  case  of  a  summary  pro- 
ceeding to  recover  possession  to  the  same  extent  as  in  an  action 
of  ejectmont,^*^  and  accordingly  the  petitioner  need  not  show  that 
there  is  no  title  outstanding  paramount  to  his  title,  nor  can  the 
tenant  assert  the  existence  of  such  a  paramount  title.^®'^     This 


884  Brockway  v.  Thomas,  3G  Ark. 
518;  Petsch  v.  Biggs,  31  Minn.  392. 
18  N.  W.  101;  Norton  v.  Becknian, 
53  Minn.  456,  55  N.  W.  603;  Orr  v. 
McCnrdy,  34  Mo.  App.  418;  Garrie  v. 
Schmidt.  25  Misc.  753,  55  N.  Y.  Siipp. 
703;  Merki  v.  Merki,  113  111.  App. 
518;  Id.,  212  111.  121,  72  N.  E.  9;  Cot- 
trell  V.  Moran,  138  Mich.  410,  101  N. 
W.  561;  Phillips  v.  Port  Townsend 
Lodge,  8  Wash.  529,  36  Pac.  476; 
Bond  V.  Chapman,  34  Wash.  606,  76 
Pac.  97. 

385  Simon  Newman  Co.  v.  Lassing, 
141  Cal.  174,  74  Pac.  761;  Ogle  v. 
Hubbel,  1  Cal.  App.  357,  82  Pac.  217; 
Gray  v.  ]\Iaier  &  Zobelein  Brew.  Co., 
2  Cal.  App.  653,  84  Pac.  280;  Fergu- 
son V.  Jackson,  180  Mass.  557,  62  N. 
E.  965:  Forsythe  v.  Bullock,  74  N.  C. 
135;  Kahn  v.  Guilford,  87  N.  C.  172; 
Appeal  of  Pittsburgh  &  A.  Drove 
Yard  Co.,  123  Pa.  250,  16  Atl.  625. 

In  Massachusetts  and  Pennsylvania 
a  covenant  to  renew  may  be  asserted 
by  the  tenant.  Ferguson  v.  Jackson, 
ISO  Mass.  557,  62  N.  E.  965;  Appeal 
of  Pittsburgh  &  A.  Drove  Yard  Co., 
123  Pa.  250,  16  Atl.  625.     And  a  like 


view  has  been  asserted  in  Maryland. 
Gelston  v.  Sigmund,  27  Md.  334. 
Contra,  Piatt  v.  Cutler,  75  Conn.  183, 
52  Atl.  819. 

In  New  York  the  statute  (Law3 
1893,  c.  705)  authorizes  the  tenant 
to  plead  any  defense,  legal  or  equit- 
able. This  does  not  authorize  af- 
firmative relief,  however.  Rodgers 
V.  Earle,  5  Misc.  164,  24  N.  Y.  Supp. 
913.  In  spite  of  this  statute,  it  has 
been  there  decided  that  the  tenant 
cannot  assert  a  contract  for  a  re- 
newal lease  as  a  defense.  Salomon 
V.  Weisberg,  29  Misc.  650,  61  N.  Y. 
Supp.   60. 

38G  See  ante,  §  78  c  (2). 

387  Bostwick  V.  Mahoney,  73  Cal. 
238.  14  Pac.  832;  Felton  v.  Millard,  81 
Cal.  540,  21  Pac.  533,  22  Fac.  750; 
Fiske  V.  Bigelow,  9  D.  C.  (2  MacAr- 
thur)  427;  Slaughter  v.  Crouch,  23 
Ky.  Law  Rep.  1214,  64  S.  W.  968; 
Coburn  v.  Palmer,  62  Mass.  (8 
Cush.)  124;  Patrick  v.  Cobb,  122  Ga. 
80,  49  S.  E.  806:  Newman  v.  Mackin, 
21  Miss.  (13  Smedes  &  M.)  383:  Sil- 
vey  V.  Summer,  61  Mo.  253;  Logan  v. 
Woolwine,  56  Mo.  App.  453;   Thorn- 


§  277  TITLE  TO  PREMISES.  I779 

doctrine,  however,  does  not  preclude  the  defendant  in  a  summary 
proceeding,  any  more  than  in  any  other  action  based  on  the  re- 
lation of  tenancy ,388  from  showing  that  the  complainant  or  peti- 
tioner is  not  in  fact  his  landlord,  for  the  reason  that  the  reversion 
iias  never  been  transferred  to  him  by  the  original  lessor,^^^  or 
that  it  has  been  transferred  to  some  other  person,39o  or  even  to 
the  defendant  himself, 391   and  the  tenant  is  at  liberty  to  show 

in  defence  an  actual  or  constructive  eviction  by  paramount 
title.392 

Occasionally  the  statute  in  regard  to  summary  proceedings 
provides  that  the  merits  of  the  title  shall  not  be  inquired  into 
in  such   a  proceeding.393     Since  the  tenant   is   precluded   from 

dike  V.  Norris,  24  N.  H.  454,  57  Am.  3oo  pentz  v.  Kuester,  41  Mo.  447; 

Dec.  294;   Heyer  v.  Beatty,  76  N.  C.  Logan  v.  Woolwine,  56  Mo.  App.  453; 

28;  Shy  v.  Brockhause,  7  Okl.  35,  54  Koontz    v.    Hammond,    62    Pa.    177; 

Pac.  306;  Heritage  v.  Wilfong,  58  Pa.  Smith  v.  Crosland,  106  Pa.  413. 

137;    "Williams  v.  Wait,  2  S.  D.  210,  ■''!'i  Higgins  v.  Turner,  61  Mo.  249; 

49  N.  W.  209,  39  Am.  St.  Rep.  768;  Silvey  v.  Summer,  61  Mo.  253;  Cam- 

Junemau  v.  Franklin,  67  Tex.  411,  3  ley  v.  Stanfield,  10  Tex.  546,  60  Am. 

S.  W.  562;  Hall  &  Paulson  Furniture  Dec.  219.     But  in  Voss  v.  King,  38  W. 

Co.  V.  Wilbur,  4  Wash.  644,  30  Pac.  Va.  607,  18  S.  E.  762,  it  was  held  that 

665.  the  fact  that  the  premises  had  been. 

In   Connecticut  the  statute    (Gen.  since  the  lease,  forfeited  to  the  state 

St.  1902,  §  1081)    authorizes  the  de-  for  taxes,  was  no  defense  to  a  pro- 

fendant  in  such  proceeding  to  show  ceeding  by  the  lessor, 

that   he    has    obtained    title    to    the  302  wheelock    v.     Warschauer,    34 

premises  after  the  date  of  the  lease,  Cal.  265;  Steinback  v.  Krone,  36  Cal. 

and  this  has  been  held  to  authorize  303;    Hinckley  v.   Guyon,  172   Mass. 

him  to  show  that  he  holds  under  a  412,  52  N.  E.  523,  70  Am.  St.  Rep.  292. 

lease  so  obtained  from  the  holder  of  See    Elms    v.    Randall,    32    Ky.     (2 

a  paramount  title.     Rodgers  v.  Pal-  Dana)    100.     But   not,    it    has    been 

mer,  33  Conn.  155.  suggested,   if   the  eviction   is  subse- 

It  was  decided  in  one  state  that  a  quent  to  the  commencement  of  the 

judgment  in  favor  of  the  plaintiff  for  proceeding.       Coburn  v.  Palmer,  62 

the    recovery    of    possession    of   the  Mass.      (8     Cush.)      124.     And     see 

land  was  not  authorized,  when  the  Blish  v.  Harlow,  81  Mass.  (15  Gray) 

lease  was   in  terms  merely  of  "his  316.     Compare    Pugh    v.    Davis,    103 

interest"  therein,  and  what  that  in-  Ala.  316,  18  So.  8,  49  Am.  St.  Rep. 

terest  was  did  not  appear.     Chandler  30,  post,  note  394. 

V.  Kent,  8  Minn.  524  (Gil.  467).  ^os  Alabama    Code    1907,    §    4271; 

388  See  ante,  §  78  n,  0.  Missouri  Rev.  St.  1899,  §  3348;  Nem 

389  Goldsmith  v.  Smith,  3  Phila.  Jersey,  2  Gen.  St.  p.  1599,  §  23;  Ore- 
(Pa.)  360,  16  Leg.  Int.  93;  Lehnen  v.  gon.  Bell.  &  C.  Codes.  §  57P0;  Tcn- 
Dickson,  148  U.  S.  71,  37  Law.  Ed.  nessee,  Shannon's  Code  1896,  §  5103. 
373. 


1780  .'SUMMARY  PROCEEDINGS.  §  277 

denying  his  landlord's  title,  no  question  could,  even  apart  from 
such  a  provision,  arise  as  to  the  merits  of  the  title  of  the  leissor 
at  the  time  of  the  lease,  that  is,  as  to  whether  there  is  any  out- 
standing title  paramount  to  that  title.  But  since  this  rule  of 
preclusion  does  not  prevent  the  defendant  from  showing  that  the 
complainant  or  petitioner  is  not  his  landlord,  for  the  reason  that 
he  has  not  succeeded  to  the  interest  of  the  lessor,  or  that  it  has 
passed  from  him  to  another,  the  question  arises  whether  he  is 
so  precluded  by  reason  of  a  statutory  provision  of  the  character 
referred  to,  that  is,  whether  a  prohibition  of  an  inquiry  into  the 
merits  of  the  title  prohibits  an  incjuiry  as  to  whether  the  com- 
plainant in  the  proceeding  has  become  or  still  is  the  owner  of  the 
reversion,  so  as  to  be  entitled  to  maintain  the  proceeding.  There 
are  occasional  decisions  to  the  effect  that  the  tenant  is,  by  such 
a  provision,  precluded,  in  a  proceeding  by  the  lessor,  from  show- 
ing that  the  latter 's  title  has  passed  to  another.^^-*  In  one  case 
it  is  said  that  "if  the  defendant  cannot,  without  enquiry  into 
the  estate  and  title  of  the  premises,  protect  himself,  he  must  sub- 
mit and  seek  his  rights  in  another  forum; "^^s  but  in  another 
case  it  is  decided  that  he  cannot  protect  himself  from  a  double 
liability  to  the  lessor  and  the  lessor's  transferee  even  by  going 
into  equity .^''^     The  provision  in  question  may,  it  seems  possible, 

New  Hampshire  Pub.  St.  1901,  c.  cover  possession  and  damages  against 
246,  §  12,  provides  that  the  defendant  him  as  a  holdin.c^-over  tenant.  At 
may  bring  the  title  in  issue  only  on  the  time  of  this  decision,  the  Ala- 
giving  bond  to  pay  all  rent,  damages  bama  statute  provided  that  "the  mer- 
and  costs.  See  Thorndike  v.  Norris,  its  of  the  title  cannot  be  inquired  in- 
24  N.  H.  454,  57  Am.  Dec.  294.  to  on  the  trial  of  any  complaint  ex- 

39*  Allen     v.     Smith,     12     N.     J.  hibited  under  this  chapter."     Subse- 

Law     (7  Halst.)      199;     Kellum     v.  quently,  and  in  consequence  of  this 

Balkum,  93  Ala.  .317,  9  So.  463;  How-  decision,     there     were     added     the 

ard   V.    Jones,    123   Ala.    488,    26    So.  words:     "But  all  legal  and  equitable 

129.     To  that  effect  is  the  language  defenses  may  be  had  against  a  re- 

of  the  opinion  in  Pugh  v.  Davis,  103  covery  for  damages   or  for  the  un- 

Ala.  316,  18  So.  8,  49  Am.  St.  Rep.  lawful  detention  of  the  land."  There 

30,  read  in  connection  with  that  in  appears  to  be  some  inconsistency  be- 

Davis  v.  Pou.  108  Ala.  443,  19  So.  362  tween   the   language   of   the   statute 

(post,  note  396).     There  it  was  de-  as  it  formerly  existed  and  that  add- 

cided  that,  though  the  tenant  had  at-  ed  thereto. 

torned  and  paid  rent,  upon  demand,  sos  Alien   v.   Smith,  12  N.   J.   Law 

to  a  purchaser  at  foreclosure  sale  un-  (7   Halst.)    199. 

der  a  mortgage  made  by  the  lessor  ••s'^n  in   D^vis  v.  Pou,   108  Ala.  443, 

before  the  lease,  the  lessor  could  re-  19  So.  362  (ante,  note  394),  the  court 


§  277  TITLE  TO  PREMISES.  1781 

have  been  introduced  into  the  statutes  with  particular  reference 
to  the  proceeding  for  forcible  entry  against  a  stranger,  there  pro- 
vided for,  and  without  consideration  of  its  possible  effect  as 
against  a  tenant  under  a  lease.  If  such  a  provision  is  to  be  con- 
strued as  precluding  the  defendant  from  showing  that  the  com- 
plainant is  not  entitled  to  maintain  the  proceeding  because  he 
has  disposed  of  the  reversion  to  another,  it  should,  it  seems,  pre- 
clude him  from  showing  that  the  reversion  has  never  been  trans- 
ferred to  the  complainant,  that  the  latter  is,  in  fact,  an  entire 
stranger,  who  neither  has,  nor  ever  has  had,  any  interest  in  the 
premises.  In  both  cases  there  is  an  inquiry  into  title,  for  the  pur- 
pose of  showing  whether  the  complainant  is  the  landlord  or  person 
entitled  to  possession,  so  as  to  come  within  the  terms  of  the  stat- 
ute. It  might  be  suggested,  moreover,  that  if  the  tenant  cannot 
show  that  the  complainant  is,  by  reason  of  the  making  of  a  transfer 
by  him,  not  entitled  to  maintain  the  proceeding,  the  complainant 
should  also  be  precluded  from  showing  that,  by  reason  of  a  trans- 
fer to  him,  he  is  entitled  to  maintain  it.  But  that  the  complainant 
is  not  ordinarily  so  precluded  would  seem  to  be  involved  in  the 
decisions  before  referred  to,396a  recognizing  the  right  of  the  trans- 
feree of  the  reversion  to  maintain  the  proceedings.^^^'^  In  one 
state  at  lea^t,  where  such  a  statutory  provision  exists,  the 
tenant  is  allowed  to  shoAV  that  the  person  instituting  the  pro- 
ceeding, although  the  original  lessor,  has  transferred  the  rever- 
sion to  another,  and  hence  has  no  right  to  maintain  the  proceed- 

JQg  397 

refused  to  enjoin  the  proceeding  by  In  Patterson  v.  Folmar,   125  Ala. 

the  original  lessor  on  the  ground  that  130,  28  So.  450,  it  was  decided  that 

the  lessee  had  no  remedy  at  law  by  evidence  that  defendant  was  in  pos- 

which  to  avoid  liability  to  both  the  session    under    a    contract    of    sale, 

original  lessor  and  the  person  claim-  which  provided  that  in  case  of  de- 

ing  under  the   mortgage.     In   How-  fault  the  relation  of  tenancy  should 

ard   V.   Jones,   123   Ala.   488,   26   So.  arise  and  that  defendant  should  then 

129,  it  was  held  that  the  statutory  be    liable    for    rent    to    a     certain 

provision    precluded    the    defendant  amount,  did  not  involve  an  inquiry 

from  showing  that  he  had  purchased  into  title,   but  only  tended   to  show 

the  property  under  a  mortgage.  The  the  relation  of  tenancy, 

mortgage  appears  to  have  been  prior  soea  See  ante,  note  97.     See,   also, 

to  the  lease,   and   so   constituted   a  post,  at  note  423. 

paramount  title  in  the  tenant,  which  396b  Compare   Watson  v.   Idler,   54 

he  could  not  aspert,  even  apart  from  N.  J.  Law,  467.  24  Atl.  554. 

statute,  until  evicted  thereunder.  897  Pentz  v.   Kuester,  41  Mo.  447; 


1782  SUMMARY  PROCEEDINGS.  §l77 

The  statutes  of  many  states,  while  conferring  the  primary  juris- 
diction to  try  proceedings  of  this  character  upon  justices  of  the 
peace,  provide  that  justices  shall  have  no  power  to  try  questions 
of  title  to  land,  and  accordingly  a  question  arises  in  connection 
with  such  provisions,  similar  to  that  just  discussed  in  connection 
with  provisions  of  like  character  expressly  applying  to  summary 
proceedings.  The  jurisdiction  of  the  justice  cannot,  in  a  landlord 
and  tenant  proceeding,  be  ousted  by  the  tenant's  denial  of  the 
title  of  the  lessor  at  the  time  of  the  lease,  since  he  is  precluded 
from  making  snch  denial,^^^  but  the  more  difficult  question  is 
whether  it  is  ousted  by  his  denial  that  the  complainant  is  the 
owner  of  the  reversion  and  so  entitled  to  the  land,  in  other  words, 
that  he  is  the  landlord.  In  at  least  one  state  it  has  been  decided 
that  he  can  deny  the  plaintifT's  title  to  the  reversion,^^''  it  being 
said  that  the  jurisdiction  to  determine  whether  a  particular  in- 
strument operated  to  transfer  the  reversion  was  the  same  as  that 

Gunn  V.   Sinclair,  52  Mo.   327;    Hig-  that  if  the  tenant  shall  allege  that 

gins   V.    Turner,   61   Mo.    249.       See  the  title  Is  disputed  or  claimed  by 

Lehnen  v.  Dickson,  148  U.  S.  71,  37  some  person  named,  by  virtue  of  a 

Law.  Ed.  373.  right    or    title    accruing    since    the 

308  See  Heritage  v.  Wilfong,  58  Pa.  lease,  by  descent,  deed  or  devise  from 
137.  and  ante,  at  note  387.  But  see  or  by  the  lessor,  and  the  person  so 
Forsythe  v.  Bullock,  74  N.  C.  135;  named  shall  appear  and  make  oath 
Hahn  v.  Guilford,  87  N.  C.  172,  and  that  he  believes  himself  to  be  en- 
ante,  §  78  i  (2),  at  notes  350-352,  as  titled  and  gives  bond  to  prosecute 
to  the  North  Carolina  rule  that  the  his  claim  with  effect,  the  justice 
tenant  may  attack  the  landlord's  shall  forbear  to  give  judgment  for 
title  by  showing  an  equitable  title  restitution  and  costs.  This  may  pcr- 
In  himself.  haps    involve    an    implication    that, 

3f'9  Savage  v.  Carney,  8  Wis.  162;  apart  from  statute,  the  tenant  could 
Jarvis  v.  Hamilton,  16  Wis.  575;  not  assert,  for  the  purpose  of  ex- 
Menorainee  River  Lumber  Co.  v.  eluding  the  jurisdiction  of  the  jus- 
Philbrook,  78  Wis.  142,  47  N.  W.  188.  tice,  that  the  lessor's  title  has  pass- 
Bergman  V.  Roberts,  61  Pa.  497,  is  cd  to  another  than  the  plaintiff  in 
to  this  effect.  And  see  Smith  v.  the  proceeding.  See,  as  to  the  eon- 
Crosiand,  106  Pa.  413.  But  Clark  v.  struction  of  these  provisions,  Mous- 
Everly.  8  Watts  &  S.  (Pa.)  226,  ley  v.  Wilson,  1  Md.  Ch.  388;  Nev^ell 
seems  contra.  v.   Gibbs,   1  Watts  &   S.    (Pa.)    496; 

In  Maryland  (Code  Pub.  Gen.  Laws  De   Coursey   v.    Guarantee    Trust   & 

1904.  art.  53.  §  5)   and  Pennsylvania  Deposit    Co..    81    i*a.    217;    Clark    v. 

(Pepper  &  Lewis'  Dig.  Laws,  "Land-  Everly,  8  Watts  &  S.   (Pa.)   226;  Es- 

lord    &    Tenant."    §    26),    there    are  sler  v.  Johnson,  25  Pa.  350. 
statutory    provisions    to    the    effect 


§  277  TITLE  TO  PREMISES.  1783 

to  determine  whether  the  instrument  under  which  the  defendant 
had  entered  was  a  lease,  creating  the  relation  of  landlord  and 
tenant,^*^*^  a  most  reasonable  view,  it  is  submitted.  In  other 
jurisdictions  it  has  been  held  that  a  statute,  in  terms  excluding 
from  the  justice's  jurisdiction  only  "actions"  involving  title,  does 
not  apply  to  summary  proceedings.'^"^  There  is,  on  the  othei' 
hand,  at  least  one  decision  to  the  effect  that  a  general  statute 
excluding  the  jurisdiction  of  a  justice  in  questions  of  title  neces- 
sarily precludes  him  from  determining  whether  the  plaintiff 
lessor  is,  as  still  having  the  reversion,  entitled  to  recover  posses- 
sion from  the  defendant  tenant,^"-  and  this  view  would  seem  to 
accord  with  occasional  decisions  that  in  an  action  for  rent  the 
justice  cannot  try  the  question  whether  the  plaintiff  is  owner 
of  the  reversion  and  so  entitled  to  the  rent.^^^ 

A  plea  of  title  in  fee,  by  one  against  whom  a  proceeding  is 
instituted  as  holding  under  a  lease,  involves,  it  seems,  merely  a 
denial  that  he  holds  under  a  lease,  so  to  authorize  the  proceed- 
ing, and  hence  is  not  sulTieient  to  exclude  the  jurisdiction  of  the 
justiee.^"^  If  the  plea  were  regarded  as  equivalent  to  an  aver- 
ment that  he  has  a  title  paramount  to  that  of  the  landlord,  it 
would  be  defective,  since  he  cannot  make  such  an  assertion.^"^'' 
The  only  other  mode  in  which  such  a  plea  could  be  regarded 
would  be  to  view  it  as  an  averment  that  the  lessor's  title  has 
passed  since  the  lease  to  the  defendant,  in  which  case  the  validity 
of  the  plea  would  involve  the  question,  above  referred  to,  of  the 
jurisdiction  of  the  justice  to  determine  whether  the  plaintiff  is 
the  owner  of  the  reversion,  and  so  entitled  to  maintain  the  pro- 

400  winterfield  v.  Stauss,  24  Wis.  could  not  try  the  case.  Whether  the 
394.  third  person  had  :i  paramount  title, 

401  State  V.  Fickling,  10  S.  C.  301;  or  had  acquired  the  lessor's  title, 
State  V.  Marshall,  24  S.  C.  507;  In  does  not  appear.  Compare  Mis- 
re  White,  12  Abb.  N.  C.  (N.  Y.)  348:  souri  cases  ante,  note  397. 

People   V.   Goldfogle,    23    N.   Y.    Civ.  403  gee  Messier  v.  Fleming,  41  N.  J. 

Proc.  417,  30  N.  Y.  Supp.  296.  Law,  108;  Smith  v.  Harris,  3  Blackf. 

402  White  V.  Bailey,  14  Conn.  271;  (Ind.)  416;  Main  v.  Cooper,  25  N.  Y. 
Meier  v.  Thieman,  90  Mo.  433,  2  S.  180. 

W.  435,  may  be  to  this  effect,  it  be-  404  gee   Menominee  River  Lumber 

ing  stated  that  since  the  defendant  Co.  v.  Philbrook,  78  Wis.  142,  47  N. 

claimed  to  be  the  tenant  of,  and  to  W.   188.     Compare   Foster  v.  Penry, 

have   paid    rent   to,   a   third   person.  77  N.  C.  150. 

title   was   in   issue   and   the   justice  405  gee  ante,  at  note  387. 


1784  SUMMARY  PROCEEDINGS.  §  278 

ceeding.  A  general  plea  of  title  in  the  defendant,  who  is  al- 
leged in  the  complaint  to  have  entered  under  a  lease,  should,  it 
seems,  be  construed  most  strongly  against  him,  as  attempting  to 
assert  a  paramount  title  without  denying  the  tenancy .•*'^'^*  The 
fact  that  the  plaintiff  avers  in  his  complaint  that  he  is  the  owner, 
and  that  the  defendant  denies  such  assertion,  does  not  raise  a 
question  of  title,  so  as  to  exclude  the  justice's  jurisdiction,  since 
such  averment  is  unnecessary  and  is  to  be  regarded  as  surplus- 
agg^406  jior  does  the  fact  that  the  defendant  avers  an  extension  of 
his  lease  involve  a  question  of  title.^*'''' 

In  some  states  the  statute  in  regard  to  summary  proceedings 
provides  that  if  it  shall  appear  from  the  pleadings  or  otherwise 
that  a  question  of  title  is  at  issue,  the  case  shall  be  removed 
from  the  justice  to  a  higher  court.^o^  ^j^^  jq  some  there  are 
general  provisions  to  that  effect  applicable  to  all  proceedings 
instituted  before  a  justice.  In  some  states  the  statutes  merely 
provide  for  a  dismissal  by  the  justice  of  any  action  in  which  a 
question  of  title  appears  to  be  involved. 

§  278.     Complaint,  petition  or  aflSdavit. 

a.  General  considerations.  The  statutes  of  some  states  pro- 
vide for  the  filing  by  the  landlord  of  a  complaint  or  petition  in 

40Ba  See    Heritage    v.    Wilfong,    58  preme  court  if  defendant  pleads  title 

Pa.  137.  in  himself  or  another  under  whom 

406  Chicago,  M.  &  St.  P.  R.  Co.  v.  he  claims,  stating  nature  of  the  title, 
Nield,  16  S.  D.  370,  92  N.  W.  1069.  under  oath,   and  enters  into  under- 

407  Jtidd  V.  Arnold,  31  Minn.  430,  taking  to  pay  intervening  damages, 
18  N.  W.  151.  See  De  Coursey  v.  costs  and  rent);  Iowa  Code  1897,  §§ 
Guarantee  Trust  &  Safe  Deposit  Co.,  4216,  4505  (Case  to  be  removed  to 
81  Pa.  217.  district  court  if  title  put  in  issue  by 

408  AZaftama  Code  1907,  §  4283  (De-  verified  pleading).  See  Jordan  v. 
fendant  in  suit  for  forcible  entry  or  Walker,  52  Iowa,  647,  3  N.  W.  679; 
forcibie  detainer  may  remove  to  cir-  Id.,  56  Iowa,  686,  10  N.  W.  232.  Mas- 
cuit  court  by  making  affidavit  that  sachvsetts  Rev.  Laws  1902,  c.  161,  § 
he  entered  peaceably,  under  claim  of  19,  c.  181,  §§  6,  8  (If  title  to  land  ap- 
title,  and  not  under  a  contract  with  pears,  from  pleadings  or  otherwise, 
plaintiff  or  one  under  whom  he  to  be  drawn  in  question,  case  to  be 
claims,  and  that  petitioner  bona  fide  removed,  provided  defendant  gives 
desires  to  contest  with  plaintiff  the  bond  to  enter  case  in  superior  court 
title);  District  of  Columtia  Code  and  pay  rent,  damages,  and  costs). 
1902,    §§    23,    1225    (Removal    to   su- 


§  278 


COMPLAINT,  PETITION  OR  AFFIDAVIT. 


1785 


writing/09  ^  verification  thereof  being  required  in  some  states.^^o 
In  other  states  it  is  provided  that  a  summons  shall  be  issued  on  the 
making  of  an  affidavit,'*^ ^  and  in  some,  upon  a  merely  verbal  ap- 
plication therefor.'*^^ 

There  are  a  number  of  decisions  as  to  the  sufficiency  of  the 
complaint  or  affidavit  in  the  particular  case  to  support  a  judgment 
of  dispossession.413  tj^^  statute  ordinarily  provides  that  it  shall 
state  the  facts  which  show  the  complainant  or  affiant  to  be  en- 
titled to  the  benefit  of  the  statute,  and  when  the  statute  so  pro- 
vides averments  of  mere  conclusions  are  insufficient.'*^^     It  has 


*09  California  Code  Civ.  Proc.  § 
1166;  Idaho  Code  Civ.  Proc.  §  3983; 
Illinois,  Kurd's  Rev.  St.  1905,  c.  57,  § 
5;    Maryland  Code   Pub.   Gen.  Laws 

1904,  art.  53,  §  1;  Minnesota  Rev. 
Laws  1905,  §  4040;  Nebraska  Comp. 
St.  1905,  §  7528;  Nevada  Comp.  Laws 
1900,  §  3841;  Ohio  Rev.  St.  1906,  § 
6603;  Oklahoma  Rev.  St.  1903,  §  5090; 
Wisconsin  Rev.  St.  1898,  §  3362.  And 
see  statutes  cited  in  the  note  next 
following. 

410  District  of  Columbia  Code  1901, 
§  20;  Florida  Gen.  St.  1906,  §  2228; 
Iowa  Code  1897,  §  4212;  Kansas  Gen. 
St.  1905,  §  5844;  Michigan  Comp. 
Laws  1897,  §  11165;  Missouri  Rev. 
St.  1899,  §  4131;  Montana  Rev.  Codes 
1907,  §  7276;  New  Mexico  Comp. 
Laws  1807,  §  3348;  New  York  Code 
Civ.  Proc.  §  2235;  Pennsylvania, 
Pepper  &  Lewis'  Dig.  Laws,  "Land- 
lord &  Tenant,"  §  34;  South  Dakota, 
Justices'  Code,  §  47;  Texas  Rev.  St. 
1895,  art.  2523;  Utah  Comp.  Laws 
1907,  §  3580;  Washington,  Ball.  Ann. 
Codes  &  St.  §  5532. 

411  See  Georgia  Code  1895,  §  4813: 
Mississippi  Code  1906,  §  2886;  New 
Jersey,  2  Gen.  St.  p.  1918,  §  12  (Oath 
in  writing) :  North  Carolina  Revisal 

1905,  §  2002   (Oath  in  writing). 

In  Cardin  v.  Standly.  20  Ga.  105, 
it  is  decided  that  the  affidavit  is  not 


a  pleading  within  the  statute  as  to 
amendments. 

412  Connecticut  Gen.  St.  1S02,  f; 
(On  giving  of  bond  by  lessor); 
Massachusetts  Rev.  Laws  1902,  c. 
181,  §  2;  New  Hampshire  Pub.  St. 
1901,  c.  246,  §  8;  Pennsylvania,  Pep- 
per &  Lewis'  Dig.  Laws,  "Landlord 
&  Tenant,"  §§  25,  28;  South  Carolina 
Civ.  Code.  §  2421;  Vermont  Pub.  St. 
1906,  §  1870;  Virginia  Code  1904,  § 
2716. 

For  the  sake  of  convenience,  the 
paper  by  the  presentation  of  which 
the  proceeding  is  instituted  will,  in 
the  following  discussion,  be  ordi- 
narily referred  to  as  the  "complaint." 

413  For  forms  of  complaint  which 
have  been  held  sufficient,  see  Har- 
ris V.  Barber,  129  U.  S.  366,  22  Law. 
Ed.  697;  McNatt  v.  Grange  Hall 
Ass'n,  2  Ind.  App.  341,  27  N.  E.  325; 
Sweeney  v.  Mines,  31  Mo.  240;  Alex- 
ander V.  Westcott,  37  Mo.  108:  Brahn 
V.  Jersey  City  Forge  Co.,  38  N.  J. 
Law,  74;  Irwin  v.  Davenport,  84  Tex. 
512,  19  S.  W.  692;  Rains  v.  City  of 
Oshkosh,  14  Wis.  372.  The  proceed- 
ing is  not  "founded"  on  the  lease  so 
that  the  instrument  of  lease  or  a 
copy  thereof  must  be  filed  with  the 
complaint.  Whipple  v.  Shewalter, 
91  Ind.  114. 

414  Fowler  v.   Roe,   25   N.   J.   Law, 


1786 


SUMMARY  PROCEEDINGS. 


§278 


been  decided,  however,  that  a  statutory  provision  that  the  com- 
plaint shall  set  forth  that  the  person  complained  of  is  in  posses 
sion  of  the  premises,  and  holds  them  unlawfully  and  against  the 
right  of  the  complainant,  is  satisfied  if  the  complaint  is  couched 
in  the  general  language  of  the  statute,  without  stating  the  facts 
of  the  particular  case.-'is  The  statement  of  the  facts  must  be 
clear  and  unambiguous,  and  it  is  insufficient  if  they  are  so  stated 
that  the  language  is  open  to  either  of  two  constructions.'* i« 

That  the  complaint  seeks  to  recover  rent  does  not  render  it  in- 
sufficient, it  has  been  decided,  even  though  such  recovery  is  not 
authorized  in  such  a  proceeding.^iT  if  th^  complaint  fails  to 
state  circumstances  Avhich  bring  the  case  within  the  statutory  pro- 
vision, the  court  has  no  jurisdiction  of  the  proceeding.^is 

b.  Showing  as  to  tenancy.  It  is  stated  in  a  number  of  cases 
that  the  complaint  or  affidavit  must  show  that  the  relation  of 
landlord  and  tenant  exists  between  the  person  who  is  seeking  to 
maintain  the  proceeding,  or  in  behalf  of  whom  this  is  sought, 
and  the  defendant  in  the  proceeding.^^^     Occasionally,  however. 


549;  Shepherd  v.  Sliker,  31  N.  J. 
Law,  432;  State  v.  Lane.  51  N.  J. 
Law,  504,  18  Atl.  353;  People  v.  Mat- 
thews, 38  N.  Y.  451;  Fry  v.  Day,  97 
Ind.  348;  Conley  v.  Conley,  78  Wis. 
665,  47  N.  W.  950.  But  if  the  facts 
are  stated,  the  statement  of  a  conclu- 
sion based  thereon  does  not  invali- 
date the  affidavit.  Steffens  v.  Earl, 
40  N.  J.  Law,  128,  29  Am.  Rep.  210. 

415  Bryan  v.  Smith,  10  Mich.  229; 
Bennett  v.  Robinson,  27  Mich.  26; 
Blackford  v.  Frenzer,  44  Neb.  829, 
62  N.  W.  1101.  But  it  was  held  that 
if  the  complainant  undertook  to  aver 
any  particular  facts,  he  must  aver 
all  which  could  be  regarded  as  in- 
cluded in  the  general  averments 
named  In  the  statute.  Bryan  v. 
Smith,  10  Mich.  229. 

410  People  V.  Matthews,  38  N.  Y. 
451. 

417  Sullivan  v.  Lueck,  105  Mo.  App. 
199.  79  S.  W.  724.  See  Ellis  v.  Fitz- 
patrick,  55  C.  C.  A.  260,  li8  Fed.  430. 


418  Conley  v.  Conley,  78  Wis.  665, 
47  N.  W.  950;  Sperry  v.  Seidel,  218 
Pa.  16,  66  Atl.  853;  Eveleth  v.  GUI, 
97  Me.  315,  54  Atl.  756;  Cleary  v. 
Waldron   (N.  J.  Law)   54  Atl.  565. 

419  Smith  V.  Killeck,  10  111.  (5 
Gilm.)  293;  Dunne  v.  School  Trus- 
tees, 39  111.  578;  Powers  v.  Suther- 
land, 62  Ky.  (1  Duv.)  151;  Taylor 
V.  Monohan,  71  Ky.  (8  Bush)  238: 
Bowles  V.  Dean,  84  Miss.  376,  36  So. 
391;  Woodman  v.  Ranger,  30  Me. 
180,  50  Am.  Dec.  625;  Eveleth  v. 
Gill,  97  Me.  315,  54  Atl.  756;  Gray  v. 
Reynolds,  67  N.  J.  Law,  169,  50  Atl. 
670;  State  v.  Staiger,  52  N.  J.  Law, 
350,  19  Atl.  387;  People  v.  Simpson. 
28  N.  Y.  55;  Earle  v.  McGoldrick,  15 
Misc.  135,  36  N.  Y.  Supp.  803;  Cohen 
v.  Brossevitch,  33  Misc.  600,  67  N.  Y. 
Supp.  1025;  Gulledge  v.  White,  73 
Tex.  498,  11  S.  W.  527.  In  Dunning 
v.  Finson,  46  Me.  546,  it  is  said  that 
the  relation  need  not  be  shown  in 
the  case  of  a  tenancy   at  will,  the 


5  278  COMPLAINT,  PETITION  OR  AFFIDAVIT.  1787 

under  special  circumstances,  it  appears,  the  P;oceeaing  may  be 
maintained  though  no  such  relation  exists,«o     ud,  when  such 
special  circumstances  occur,  the  complamt  or  affidavit  ned  not 
it  is  plain,  show  the  relation  of  landlord  and  tenant  -     The 
requirement  as  expressed  merely  means,  it  seems,  th-t  the  com- 
plaint must  show  that  the  complainant  stands  m  such  a  relat  on 
lo  the  defendant  as  to  be  entitled  to  maintam    he  proceedmg 
against  him.    That  the  relation  exists  would  usually  appear  from 
a  statement  that  the  complainant  had  made  a  lease  to  the  defend- 
ant"^    If  the  proceeding  is  by  a  person  other  than  the  or.gmal 
lessor,  the  complaint  must  show,  it  has  been  decided,  how  ho 
became  entitled  to  maintain  it,  that  is,  how  the  reversion  or  the 
ri"ht  of  possession  passed  to  him  from  the  lessor. 

c  Interest  of  petitioner.  In  the  state  of  New  York  it  is  pro^ 
vided  bv  statute  that  the  petition  shall  describe  "the  interest  of 
the  petitioner,  or  of  the  person  whom  he  represents  in  the 
nremises  ""♦  This  provision  inferentially  requires  that  the  peti- 
tioner shall  aver  that  he,  or  the  person  whom  he  represents,  has 
an  interest  in  the  premises,  and  applies  in  terms  both  to  a  sum^ 
mary  proceeding  against  a  stranger  who  has  forcibly  entered,"' 

""^rav;"rt^ -aT.St  rn-i;  '^::z:i:^'^i 

IcTe  an.  'm    tlslalry.'  35  Conn.  3»«.  it  was  decide,  that  an 

Aaaverment  that  affiant  "leased  allegarion  that  the  complamants    are 
.rp_to.a.dSh.t^^^^^^^^ 
to  commence  on  the  fi^^^  o^  May  ^^^^^^.  .^  ^^^^^^ 

^cienuyr;    LTxst  ncr^Jet   lealfto  de.en.ant.  and  then  died, 
ficiently  ^tale^  ^^^e  concluding    by    praying    ]udg- 

:::i::re  -pr;er,3,wa3h.eo..— 

'VLT:         Stevens  v.  Earl.  40   Ihlt   where   a  life  tenant  ma.es  a 
N    ;    Law    m    29   Am.  Rep.   210:    lease,     the     remalnaerm.,n     cannot 
S,.*:  Mitchell.  30  Minn.  122,  14    properly  he  regarded  as  the  owner 
t^  Of  the  reversion.     There  is  no  priv 

MseeEvansv.Mulle.25Mo.195:    ity  between  ^^^^l^^^' ^c 
Binder  v.  Azzaro,  74  N.  J.  Law,  328.    the  life  tenant.     See  ante       69  c. 
65   Atl     849;    Llovd  v.   Richman.   57        4^4  Code  Civ.  Proc.  §  2.  3o. 
N    J    Law,  385.  30  Atl.  432;   HiH  v.       -^  The  statute  was  applied  in  con- 


U88  SUMMARY  PROCEEDINGS.  §  278 

and  also  to  one  against  a  tenant.  However  de.sirahle  it  may  be 
that  the  plaintiff  in  the  former  class  of  proceeding  be  compelled 
to  state  what  interest  or  title  he  may  have,  such  a  requiremi'nt  in 
the  case  of  a  proceeding  against  a  tenant  is  open  to  the  objection 
that  it  permits  the  tenant  to  .Tefend  on  the  ground  of  defects  in 
the  landlord's  title,  in  violation  of  the  general  rule  precluding  the 
tenant  from  asserting  such  defects.426,427  n  j^^s  been  decided 
that  an  averment  that  the  petitioner  is  the  landlord,-'28  or  that  he 
"leased"  the  premises  to  the  defendant,-*^^  or  that  he  was  him- 
self a  lessee  of  the  premiseSj-^^^o  is  not  a  compliance  with  the  stat- 
ute. In  other  cases,  however,  the  petition  was  decided  to  be 
suflficicnt  when  it  alleged  that  the  petitioner  entered  into  an  agree- 
ment with  the  defendant  whereby  he  let  to  and  the  defendant 
hired  the  premises,  and  for  the  use  and  occupation  thereof  prom- 
ised to  pay  an  annual  rental  of  a  sum  named,-!^!  and  also,  as 
averring  the  interest  of  the  person  represented  by  the  petitioner, 
when  it  stated  that  the  latter  was  the  agent  for  persons  named 
"who  are  the  owners  and  landlords  of  such  premises, "•'^ 2  or  for 
the  executor  and  trustee  under  a  will  which  authorized  the  latter 
to  dispose  of  the  decedent's  real  estate,  and  that  he  entered  into 
an  agreement  with  the  defendant  as  tenant.^^s  i^  h^q^q  latter 
cases,  it  is  evident,  the  averment  was,  in  effect,  merely  of  the 
making  of  the  lease  by  the  person  whose  right  to  the  possession 

nection  with   such   a  proceeding  in  ber  v.  Apfel,  113  App.   Div.  720,  99 

Fuchs  V.  Cohen,  29  Abb.  N.  C.  56,  19  N.  Y.   Siipp.   215;    Matthews  v.  Car 

N.   Y.  Supp.   236;    Cahill  v.   Wyand,  man,   122   App.   Div.   582,   107  N.   Y. 

22  Civ.  Proc.  R.  (N.  Y.)  271;  Potter  Supp.  694. 

V.  New  York  Baptist  Mission  Soc,  23  420  Matthews  v.  Carman,  122  App. 

Misc.  671,  52  N.  Y.  Supp.  294.       In  Div.  582,  107  N.  Y.  Supp.  694. 

Crane  v.  Van  Derveer,  45  App.  Div.  430  Eldaen   Realty  &  Const.  Co.  v. 

139,  60  N.  Y.  Supp.  1040,  it  was  held  Bensamon,   56  Misc.   463,   107  N.   Y. 

that  the  objection  that  no  such  aver-  Supp.  128;  Ferber  v.  Apfel,  113  App. 

ment  was  made  was  waived  by  the  Div.  720,  99  N.  Y.  Supp.  215. 

action  of  the  defendant  in  filing  a  431  Slater     v.     Waterson     &     Law 

verified  answer,  procuring  a  panel  of  Amusement  Co.,  58  Misc.  215,  109  N. 

jurors,    and    obtaining    an    adjourn-  Y.  Supp.  50". 

™^^t.  ''32  Equitable   Life   Assur.    Soc.    v. 

426,  427  See  ante,  §  78  c  (2).  Schum,  40  Misc.  657,  83  N.  Y.  Supp. 

428  Engel-Heller  Co.  v.  Henry  Elias  161. 

Brew.    Co.,    37   Misc.    480,    75    N.   Y.  433  Rowland  v.  Dillingham,  83  App. 

Supp.  lOSO;    Kazis  v.  Loft  81  App.  Div.  156,  82  N.  Y.  Supp.  470. 
Div.  636,  SO  N.  Y.  Supp.  1015;    Fer- 


§278 


COMPLAINT,  PETITION  OR  AFFIDAVIT.  1789 


was  asserted.  The  statement  that  the  petitioner  or  person  rep- 
resented by  him  is  the  landlord,  or  that  he  leased  the  premises  to 
the  defendant,  is  not  an  averment  of  the  petitioner's  interest  in 
the  premises,  but  rather  of  the  defendant's  interest  therein  and 
of  the  relation  between  them,  but  a  strict  application  of  the  re- 
quirement that  the  petitioner's  interest  be  averred  would  be  at- 
tended with  such  very  considerable  inconvenience  as  almost  to 
compel  the  courts  to  put  a  forced  construction  on  the  language, 
as  they  apparently  have  done  in  the  cases  last  referred  to. 

It  has  been  decided  that  if  the  petition  alleges  that  the  title  was 
originally  in  a  person  other  than  the  petitioner,  and  that  it  was 
subsequently  transferred  to  him,  he  cannot  show  that  it  was  al- 
ways in  him.^34 

d.  Defendant's  possession.  The  complaint,  petition,  on  affi- 
davit, must  show  that  the  person  complained  of  is  in  possession 
of  the  premises,^^^  which,  it  would  seem,  it  can  hardly  fail  to  do. 

e.  Petitioner's  agency  for  landlord.  As  before  stated,  the  stat- 
utes quite  frequently  provide  for  the  institution  of  the  proceed- 
ing by  the  agent  or  attorney  of  the  person  entitled  to  possession,*38 
and  this  means,  it  seems,  that  the  complaint  or  affidavit  may  be 
in  the  name  of  the  agent  rather  than  of  the  principal.'*^'^  The 
complaint  or  affidavit,  if  made  by  an  agent,  must,  it  has  been  de- 
cided, contain  a  direct  averment  that  he  is  an  agent,  a  mere  de- 
scription of  him  as  agent  being  insufficient.^^^  Where  the  statute 
required  the  petition  to  state  the  facts  authorizing  him  to  make 
the  application,  a  statement  that  the  petitioner  "is  an  agent  of  P. 
B.,  who  is  the  owner  and  landlord,"  and  "is  duly  authorized  to 
commence  proceedings  to  dispossess  the  tenant,"  was  held  to  be 
sufficient.^^^ 

A  statutory  provision  requiring  the  petition  to  be  verified  in  the 
same  way  as  the  complaint  in  an  ordinary  action  refers,  it  has 

434  McFarland  Real   Estate  Co.   v.       oe  See  ante,  §  273  1. 

Gerardi  Hotel  Co.,  202  Mo.  597,  100  437  it  is  so  decided  in  Johnson  T. 

S.  W.  577.  Thrower,  117  Ga.  1007,  44  S.  B.  846. 

435  Hill  V.  Stocking,  6  Hill  (N.  Y.)  438  Cunningham  v.  Goelet,  4  Denio 
814,  41  Am.  Dec.  748;  Rains  v.  City  (N.  Y.)  71.  Compare  Patterson  v. 
of  Oshkosh,  14  Wis.  372.  For  a  pe-  Graham,  140  111.  531,  30  N.  E.  460. 
tition  held  to  be  sufficient  in  this  439  Bennett  v.  Budweiser  Brew, 
respect,  see  Qiiandt  v.  Smith,  28  Co.,  27  Misc.  805,  58  N.  Y.  Supp.  313. 
Wash.  664,  69  Pac.  3G9. 


1790  SUMMARY  PROCEEDINGS.  §  278 

been  decided,  to  the  form  of  the  verification  and  not  to  the  person 
verifyinj,',  and  consequently  does  not  preclude  a  verification  by 
the  agent  of  a  corporation  landlord.'**^ 

f.  Desig-nation  of  subtenants.  In  one  state  a  statutory  require- 
ment that  the  petition  shall  "name  or  otherwise  intelligibly  desig- 
nate the  person  or  persons  against  whom  the  special  proceeding 
is  instituted,  and  if  there  are  two  or  more  such  persons,  and  some 
are  undertenants  or  assigns,  specify  who  are  principals  or  tenants 
and  who  are  undertenants  or  assigns,"  was  held  to  be  sufficiently 
complied  with  by  designating  such  persons  as  ''John  Doe  and 
Richard  Eoe  (fictitious  names),  undertenants. "^•^i 

g.  Description  of  premises.  The  complaint  or  affidavit  must 
describe  the  premises  '^■^^  with  such  sufficiency  as  to  enable  the 
tenant,  and  also  the  officer  who  may  have  to  carry  the  judgment 
into  execution,  to  identify  them.^^''  A  description  of  the  prem- 
ises as  those  on  which  the  defendant  resides  has  ])een  regarded 
as  insufficient."*^^  Ordinarily  a  description  similar  to  that  of  the 
lease  will  be  sufficient."*-*^  It  has  in  one  state  been  regarded  as 
necessary  that  the  county  be  named,-*"*^  and  elsewhere  it  is  stated 

that  it  must  appear  that  the  premises  are  within  the  court's  juris- 
diction.-^^T 

A  failure  to  describe  the  premises  has  been  regarded  as  a  juris- 
dictional defect  which  cannot  be  cured  by  the  appearance  of  the 
defendant. "^^s 

**o  Stuyvesant  Real   Estate  Co.  v.  Stilwell,  67  N.  J.  Law,  96,  50  Atl.  493. 

Sherman,  40  Misc.  205,  81  N.  Y.  Supp.  See    Torrey    v.    Cook,    11    Miss.     (3 

642.  Smedes  &  M.)    60;    Haynes  v.   Sher- 

**i  Ash  V.  Purnell,  16  Daly,  189,  26  win-Williams  Co.,  126  111.  App.  414. 

Abb.  N.  C.  92,  11  N.  Y.  Supp.  54.  444  Thompson  v.  Chapman,  57  Ga. 

*42  Cairo  &  St.   L.  R.  Co.  v.  Wig-  16;  Snoddy  v.  Watt,  9  Ala.  609.     And 

gins  Ferry  Co.,  82   111.  230;   Gerlach  see    Atkinson    t.    Lester,    2    111.     (1 

V.  Walsh,   41   111.   App.   83;    Jolly  v.  Scam.)   407. 

Ghering,  40  Ind.  139;   Allen  v.  Shan-  445  See    Duff   v.   Fitzwater,    54    Pa. 

non,  74  Ind.  164;  Smith  v.  White,  35  224.  93  Am.  Dec.  691;  Stanford  Land 

Ky.  (5  Dana)  376;  Campbell  v.  Mai-  Co.  v.  Steidle,  28  Wash.  72,  68  Pac. 

lory,    22    How.    Pr.     (N.    Y.)     183;  178. 

Snhneider  v.  Leizman,  57  Hun,  561, 11  446  Leary  v.  Langsdale,  35  Ind.  74; 

N.  Y.  Supp.  434;  Conley  v.  Conley,  78  Jackson  v.  Adams,  Wils.  (Ind.)  398. 

Wis.  665,  47  N.  W.  950.  447  People  v.   Boardman,   4   Keyes 

443Vaughan   v.   Vaughan,   111   Ga.  (N.  Y.)  59. 

807,  35  S.  E.  650;  Story  v.  Walker,  71  44s  Sims  v.  Humphrey,  4  Denio  (N. 

N.  J.  Law,  226,  58  Atl.  349;  Newingv.  Y.)  185;  Potter  v.  New  York  Baptist 


.  978  COMPLAINT,  PETITION  OR  AFFIDAVIT.  1791 

h  Previous  demand  or  notice.  If  the  statute  requires  a  de- 
mand for  possession  or  notice  to  quit,  the  complaint  or  affidavit 
must  aver  the  making  or  service  of  a  demand  or  notice  answer- 
in-  to  the  statutory  requirement.^^^  It  has  been  held,  however, 
that  the  fact  that  the  statute  requires  a  written  notice  to  quit  does 
not  necessitate  an  averment  that  the  notice  was  in  writing,  though 
this  must  be  shown  on  the  trial.^^*^ 

There  need  not  be  an  averment  as  to  the  person  by  whom  the 
service  was  made.'^'^i  But  the  person  on  whom  the  demand  or  - 
notice  was  served  must  appear .^^^  in  one  state  it  has  been  decided 
that  a  general  allegation  of  service  is  sufficient  without  stating 
the  mode  of  service,^^^  but  elsewhere  there  are  decisions  to  the 
effect  that  the  mode  of  service  must  be  stated  ;454  and  it  has  been 
decided  that  if  the  service  was  not  a  personal  one,  the  complaint 
must  show  that  such  substituted  service  was  in  accordance  with 
the  statute  providing  therefor,^^^  and  must  state  the  facts  render- 
ing such  mode  of  service  proper  in  the  particular  case.^ss 

Mission  Soc.  23  Misc.  671.  52  N.  Y.       453  Knowles    v.    Murphy.    107    Cal. 
gyp      294  107.  40   Pac.   111.       See  Ballance  v. 

449  Spear  v.  Lomax.  42  Ala.  576;  Fortier,  8  111.  (3  Gilm.)  291. 
Smith  V  KiUeck.  10  111.  (5  Gilm.)  454  People  v.  Keteltas,  12  Hun  (N. 
295-  Dunne  v.  School  Trustees.  39  Y.)  67;  Posson  v.  Dean.  8  Civ.  Proc. 
Ill  '578;  Hickey  V.  Conley.  24  Pa.  R.  (N.  Y.)  177;  Stuvesant  Real  Es- 
Super  Ct.  388;  State  v.  Allen,  45  Mo.  tate  Co.  v.  Sherman.  40  Misc.  20d,  81 
Ann  551-  Brahn  v.  Jersey  City  Forge  N.  Y.  Supp.  642;  Lowman  v.  West,  8 
Co  '38  N  J  Law,  74;  Conley  v.  Con-  Wash.  355.  36  Pac.  258.  These  were 
ley'  78  Wis  665,  47  N.  W.  950;  Bris-  cases  of  notice  to  quit  for  nonpay- 
ted  V.  Harrell,  20  Misc.  348,  45  N.  Y.  ment  of  rent.  In  Boyd  v.  Milone,  24 
Supp.  918.  But  if  the  statute  names  Misc.  734,  53  N.  Y.  Supp.  785,  it  was 
the  essentials  of  the  complaint,  with-  held  that  a  general  averment  of  a 
out  requiring  an  averment  of  notice,  demand  for  rent  was  insufficient,  it 
this  need  not  be  made.  Chung  Yow  ^^^^^  being  averred  to  have  been  per- 
V.  Hop  Chung.  11  Or.  220.  4  Pac.  326.  ^^^^^_  ^g  ^^  ^j^e  cure  of  defects  in 
An  averment  of  notice  Is  obviously  ^^^  petition  in  this  regard  by  the 
unnecessary  when  no  notice  is  neces-  ^^g^gj,^  ggg  peabody  v.  Long  Acre 
sary.  Campbell  v.  Johnson,  129  Mo.  sqy^j,g'Bidg.  Co.,  112  App.  Div.  114, 
App.  201,  107  S.  W.  1020.  98  N    Y.  Supp.  242. 

4.,o  Hitchcock  v.McKinster.  21  Neb.        ^^,^^^^^^    ^     McGovern,    41    App. 
148.  31  N.  W.  507.  g^        493     p^^pie 

451  Morris  Canal  &  Banking  Co.  v.    ^n.  ■5»^'  °«  ^  •        .''    .   ... 
Mitchell,  31  N.  J.  Law,  100.  v.  Piatt    43  Barb.  (N^  YO  116. 

4.s2R.ogersv.  Lynds.  14Wend.   (N.        4^'->  Scheifele    v.    Irvmg.    53    N.    J. 
Y.)  172;  Wolcott  v.  Schenk,  16  How.    Law,  180,  20  Atl.  10.5. 
Pr.  (N.  Y.)  44. 


1792  SUMMARY  PROCEEDINGS.  §  278 

i.  Right  to  possession.  To  enable  the  landlord  to  recover  pos- 
session alter  the  expiration  of  the  term,  or,  in  the  case  of  a  ten- 
ancy at  will  or  from  year  to  year,  after  the  termination  of  such 
tenancy  by  notice  or  otherwise,  it  has  been  regarded  as  necessary, 
in  some  jurisdictions,  to  state  the  terms  of  the  lease  as  regards 
its  character  and  duration,  so  that,  if  it  is  a  lease  for  years,  it  will 
appear  to  have  come  to  an  end  by  lapse  of  time,  and,  if  termina])le 
by  notice,  it  will  appear  to  have  been  properly  terminated  by  the 
notice  stated  to  have  l)een  given.^^^  If  the  facts  stated  show  that 
the  complainant  is  entitled  to  possession,  this  need  not  be  ex- 
pressly averred.^^** 

It  need  not  be  alleged  that  the  holding  over  is  wrongful  ^^^  or 
by  force,*^°  or,  it  has  been  decided,  that  it  is  "without  the  per- 
mission" of  the  landlord,^^^  though  a  different  view  has  been 
taken  as  to  the  latter  averment  when  the  statute  in  terms  au- 
thorized a  proceeding  against  one  holding  over  "without  per- 
mission. "-^62.  463 

j.  Nonpayment  of  rent.  When  the  proceeding  is  based  on  the 
nonpayment  of  rent,  an  allegation  of  the  amount  of  rent  due  has 
been  regarded  as  necessary,  in  order  that  the  defendant  may  be 

457  Bowles  V.  Dean,  84  Miss.  37C,  36  458  Engels  v.  Mitchell,  30  Minn.  122, 

So.  391;  Fowler  v.  Roe,  25  N.  J.  Law,  14  N.  W.  510. 

549;  Shepherd  v.  Sliker.  31  N.  J.  -ti^o  Uriel ias  v.  Morrell,  25  Cal.  31 
Law,  432;  Steffens  v.  Earl,  40  N.  J.  (semble)  ;  Stanford  Land  Co.  v. 
Law,  128;  People  v.  Matthews,  38  Steidle,  28  Wash.  72,  68  Pac.  178.  In 
N.  Y.  451;  People  v.  Simpson,  28  N.  Fry  v.  Day,  97  Ind.  348,  it  is  said  that 
Y.  55.  In  Maryland  a  statement  in  where  the  statute  provides  for  a  pro- 
substance  that  the  landlord  has  rent-  ceeding  against  a  tenant  who  "un- 
ed  or  leased  certain  property  to  the  lawfully  holds  over,"  if  an  averment 
tenant  for  a  term  which  has  ended  of  unlawful  holding  is  necessary,  an 
is  said  to  be  sufficient  in  this  regard,  averment  that  defendant  "unlawful- 
Burrell  v.  Lamm.  67  Md.  580,  11  Atl.  ly  detains"  is  sufficient. 
56.  See,  also,  Spear  v.  Lomax,  42  46o  wheeler  v.  Reitz,  92  Ind.  379; 
Ala.  576.  Chambers  v.  Hoover,  3  "Wash.  T.  107, 

It  has  been   decided  that  a  com-  13  Pac.  466. 

plaint  seeking  to  recover  possession  -ici  Moore  v.  Smith,  56  N.  J.  Law, 

on  account  of  the  breach  of  a  condi-  446,  29  Atl.  159.     See  Earl  Orchard 

tion  against  subletting  without  the  Co.  v.  Fava,  138  Cal.  76,  70  Pac.  1073. 

landlord's  consent  is  not  substantial-  462,  463  Prouty  v.  Prouty,  5  How.  Pr. 

ly  defective  because  it  fails  to  state  (N.  Y.)  81;  Conley  v.  Conley,  78  Wis. 

that  the  subletting  was  without  such  665,  47  N.  W.  950.     See  Campbell  v. 

consent.     Schroeder  v.  Tomlinson,  70  Mallory,  22  How.  Pr.   (N.  Y.)  183. 
Conn.  348,  39  Atl.  484. 


«  278  COMPLAINT,  PETITION  OR  AFFIDAVIT.  1793 

able  to  pay  the  rent  and  so  put  an  end  to  the  proceeding.^s^  In 
one  state,  however,  such  an  allegation  has  been  decided  to  be  un- 
necessary ,-"5  ^  and  in  another  state  it  appears  that  if  any  rent  is 
shown  to  be  due,  though  less  than  that  named,  a  judgment  for 
the  landlord  is  proper.^^e  The  amount  of  rent  named  must  be 
only  that  due  to  the  petitioner,  and  must  not  include  rent  due  to 
his  predecessor  in  interest.^^'^ 

A  complaint  on  this  ground  need  not,  it  seems,  state  the  char- 
acter or  duration  of  the  tenancy,468  unless  the  remedy  is  re- 
stricted by  the  statute  to  particular  classes  of  tenancy.-'^^ 

If  the  statute  authorizes  such  a  proceeding  only  if  the  arrears 
of  rent  cannot  be  collected  by  distress,  the  affidavit  must  state 
that  such  is  the  case,^^^  and  an  averment  that  the  landlord  be- 
lieves such  to  b^  the  case  is  insuffieicnt.-^^i 

If  a  demand  of  the  rent  is  a  prerequisite,  the  making  of  the 
demand  must  be  stated.^^^  in  New  York  it  appears  to  have  been 
decided  that  a  general  averment  of  the  demand  of  rent,  without 
stating  whether  it  is  personal  or  how  otherwise  it  was  made,  is 
insufficient.4^3.474 

«4  Vaughn  V.  Locke,  27  Mo.  290;  actually  due.  the  proceeding  is  not 
Welch  V.  Ashby,  88  Mo.  App.  400;  defeated  because  he  states  less  than 
Layton  v.  Dennis,  43  N.  J.  Law,  380.    that  due. 

In  Knowles  v.  Murphy,  107  Gal.  107,       ^^-  Vaughn  v.  Locke,  27  Mo.  290. 
40  Pac  111   it  was  decided  that  when       •^-'s  See  Layton  v.  Dennis,  43  N.  J. 
rent  is  payable  in  advance,  an  aver-   Law.  380;   People  v.  Teed,  48  Barb, 
ment  that  the  amount  in  default  cov-    (N.  Y.)  424. 

ered  a  period  which  extended  beyond  «o  McDermott  v.  Mcllwam,  75  Pa. 
the  date  at  which  the  demand  was    341. 

made  or  bevond  the  date  when  the  470  Wilson  v.  Wood,  84  Miss.  .-8. 
last  instalment  accrued,  is  mere  sur-  36  So.  609;  Hickey  v.  Conley,  24  Pa. 
plusage    it  stating  the  terms  of  the    Super.  Ct.  388. 

lease  akd   the  period  during  which       471  Schuyler   v.   Trefren,   26   N.  J. 
default  existed  prior  to  the  date  of   Law,  213. 
demand  *"  Lacrabere  v.  Wise,  141  Cal.  554, 

"  4ns  Lamar  v.  Sheppard,  84  Ga.  561,    75    Pac.   185,   99   Am.    St.   Rep.    88; 

10  S   E   1084.  Schuyler  v.  Trefren,  26  N.  J.  Law, 

466Diirant  Land  Imp.  Go.  v.  East   213;  People  v.  Piatt,  43  Barb.  (N.  Y.) 

River  Elec    Co.,  17  N.  Y.  Civ.  Proc.    116;  Wolcott  v.  Schenk,  16  How.  Pr. 

224    6  N    Y    Supp.  659.     In  Mooers    (N.  Y.)    449;    People  v.  Keteltas,  12 

V    Martin.  23  Mo.  Anp.  654;   Id.,  99    Hun  (N.  Y.)  67;  Miles  v.  Orr  (N.  J. 

Mo.  84.  12   S.  W.  522,  it  is  decided    Law)    25  Atl.  268;   Wilson  v.  Wood, 

that   though  the  statute  requires  the    84  Miss.  728,  36  So.  609. 

landlord  to  state  the  amount  of  rent       *",  471  Engel-Heller   Co.    T.   Henry 

L.  and  Ten.  113. 


1794 


SUMMARY  PROCEEDINGS. 


§279 


k.  Amendment.  In  one  state  it  has  been  decided  that  the 
complaint  cannot  be  amended  after  filing,  tbe  statute  not  in  terms 
giving  the  justice  this  power,^^^  and  in  another  state  it  was  de- 
cided that  the  affidavit  of  defense  cannot  be  amended.^ ^^  In 
other  cases  a  right  of  amendment  in  proceedings  of  this  character 
has  been  clearly  recognized."*^^ 

§  279.    Answer  or  plea. 

The  statutes  rarely  contain  specific  provisions  as  to  the  plead- 
ing to  be  filed  by  the  person  or  persons  against  whom  the  pro- 
ceeding is  brought,'* ^^  and  the  practice  in  this  regard  is  usually 


Elias  Brew.  Co.,  37  Misc.  480,  75  N. 
Y.  Supp.  1080. 

475  Wilson  V.  Bayley,  42  N.  J.  Law. 
132;  Waters  v.  Haynes,  49  N.  J.  Law, 
598,  9  Atl.  770,  60  Am.  Rep.  592.  In 
Bliss  V.  Caryell,  28  Misc.  162,  59  N. 
Y.  Supp.  13,  it  was  decided  that  if  the 
tenant  appears  and  proceeds  to  trial 
without  pointing  out  any  defect  in 
the  petition,  he  cannot  thereafter  ob- 
ject that  the  court  was  without  juris- 
diction because,  after  the  issuance 
of  the  precept  and  before  trial,  the 
landlord's  name  was  substituted  in 
the  verification  for  that  of  his  agent. 

4T6  Mothershead  v.  DeGive,  82  Ga. 
193,  8  S.  E.  62. 

•»"7  Thompson  v.  Sornberger,  78  111. 
353;  Valencia  v.  Couch,  32  Cal.  340,  91 
Am.  Dec.  589;  Shelby  v.  Houston,  38 
Cal.  410;  Howard  v.  Valentine,  20 
Cal.  2S2;  Earl  Orchard  Co.  v.  Fava, 
138  Cal.  76,  70  Pac.  1073;  Liddon  v. 
Hodnett,  22  Fla.  271;  Jackson  v. 
Warren,  32  111.  331;  Spurck  v.  For- 
syth, 40  111.  438;  Bowles  v.  Dean,  84 
Miss.  376,  36  So.  391;  Gensler  v. 
Nicholas.  151  Mich.  529,  15  Det.  Leg. 
N.  13,  115  N.  W.  458. 

4TS  A  few  of  the  statutes  refer  to  a 
pleading  to  be  filed  by  the  defend- 
ant in  the  proceeding.  See  Michigan 
Comp.  Laws  1897,  §  11168    (Defend- 


ant may  plead  "not  guilty,"  or  such 
plea  may  be  entered  for  him) ;  Min- 
nesota Rev.  Laws  1905,  §  4042  (All 
matters  in  e.xcuse,  justification,  or 
avoidance,  shall  be  set  up  in  the  an- 
swer) ;  Neiv  Hampshire  Pub.  St.  1901, 
c.  246,  §  11  (Under  general  issue, 
defendant  shall  not  question  title) ; 
Neio  York  Code  Civ.  Proc.  §  2244 
(Person  to  whom  precept  is  directed, 
or  his  landlord,  or  any  person  in  pos- 
session, may  file  a  written  answer, 
verified,  denying  generally  the  alle- 
gations, or  specifically  any  material 
allegation  of  the  petition,  or  setting 
forth  any  new  matter  constituting  a 
defense  or  counterclaim).  Under 
this  statute,  a  counter  affidavit  is  in- 
sufficient (Yuelin  v.  Meade,  1  Civ. 
Proc.  R.  446),  as  Is  a  motion  to  dis- 
miss, for  the  purpose  of  raising  the 
issue  of  res  judicata  (Fritzuskie  v. 
Wauroski,  83  App.  Div.  150,  82  N.  Y. 
Supp.  543).  Virginia  Code  1904,  § 
2717  (Plea  to  be  not  guilty);  West 
Virginia  Code  1906,  §  3333  (ditto); 
Wisconsin  Rev.  St.  1898,  §  3364 
(same  as  Minnesota). 

In  two  states,  there  is  a  provision 
for  a  counter  affidavit  by  the  person 
in  possession.  Georgia  Code  1895,  §§ 
4813,  4821  (Tenant  may  arrest  pro 
ceedings  by  filing  affidavit  that  hlb 


§  280  SUMMONS  AND  RETURN.  1795 

determined  by  the  practice  ordinarily  adopted  in  proceedings  in 
the  particular  court.^'^^  In  some,  probably  in  most,  of  the  states, 
the  plea  of  "not  guilty"  is  a  proper  plea,  as  in  proceedings  for 
forcible  entry .^^*^  This  plea  has  been  regarded  as  equivalent  to 
a  general  denial,  putting  in  issue  all  the  facts  alleged  by  plaintilT, 
including  that  of  the  existence  of  the  relation  of  landlord  and 
tenant.'^^i 

In  New  York  the  statute  provides  that  any  person  in  possession 
or  claiming  possession  of  the  premises,  or  a  part  thereof,  may  file 
a  verified  answer.'*^^  j^  h^g  been  held  that  no  person  can  avail 
himself  of  this  provision  unless  he  belongs  to  one  of  the  classes 
against  whom,  under  the  statute,  the  proceeding  might  have  been 
instituted,  and  that  it  gives  no  right  to  entire  strangers  to  inter- 
vene.'*^^  An  assignee  may,  it  has  been  decided,  intervene  by  force 
of  such  provision,  though  she  has  transferred  her  entire  term, 
provided  she  reserved  a  rent.^^'* 

§  280.    Summons  and  return. 

The  statutes  almost  invariably  provide  for  the  issuance  of  a 
summons  or  notice  to  the  person  against  whom  the  proceeding  is 
instituted,  notifying  him  to  appear  before  the  court  or  officer  is- 
suing it,  and  to  show  cause  why  he  should  not  be  compelled  to 
relinquish  possession.     Some  statutes  contain  specific  provisions 

lease    has    not    expired,    that    rent  a  plea  of  the  general  issue,  nor  to  a 

claimed  is  not  due,  or  that  he  does  plea  of  nontenure  at  the  time  of  the 

not  hold  under  complainant).       See  filing  of  the  complaint  and  service 

Moody  V.  Ronaldson,  38  Ga.  652;  Wer-  of  notice. 

ner  T.  Footman,  54  Ga.  128;  Mothers-  4so  See  McGuire  v.  Cook,  13  Ark. 

head  v.  De  Give,  82  Ga.  193,  8  S.  E.  448;    Sullivan  v.   Gary,   17   Cal.   80; 

62.       Mississippi  Code  1906,   §    2890  Minturn  v.   Burr,   20   Cal.    49;    Ray- 

( Person  in   possession  may  file  aflB-  mond  v.  Bell,  18  Conn.   81;    McKin- 

davit  denying  facts  on  which  sum-  ney  v.   Hartman,  4   Iowa,  154;    Gal- 

mons  issued).  ligher  v.  Connell,  23  Neb.  391,  36  N. 

*^^  See  Poffenberger  v.  Blackstone,  W.  566. 

57  Ind.  288;  Ward  v.  Pittsburg,  C,  C.  48i  Sodini  v.  Gaber,  101  Minn.  155, 

&  St.  L.  R.  Co.,  25  Ind.  App.  405,  58  111  N.  W.  962. 

N.   E.    264.     In    Davis   v.    Alden,    66  482  Code  Civ.  Proc.  §  2244. 

Mass.  (12  Cush.)  323,  it  was  decided  483  Heuser  v.    Antonius,   84    N.    Y. 

that  a  plea  that  the  respondent  "is  Supp.  580. 

not  in  possession  of  the  premises  de-  484  Levy  v.  Winkler,  59  Misc.  482, 

manded"  is  bad,  it  not  amounting  to  110  N.  Y.  Supp.  997. 


1796  SUMMARY  PROCEEDINGS.  §  2S0 

L.:.  :o  tlie  contents  of  the  summons,  as,  for  instanot',  tliat  it  describe 
the  premises  sought  to  be  recovered,  or  that  it  state  the  grounds 
on  which  relief  is  sought>^^  That  it  must  state  the  grounds  upon 
which  the  proceeding  is  based  has  been  recognized,  however, 
apart  from  any  statutory  provision  in  that  regard,*^*  and  pre- 
sumably a  statement  of  the  grounds  necessarily  involves  an  iden- 
tification of  the  premises  sought  to  be  recovered.  That  the  stat- 
ute requires  the  summons  to  describe  the  premises  does  not  ne- 
cessitate that  it  show  them  to  be  within  the  judicial  district.*^' 
In  one  state  at  least  the  statute  requires  the  summons  to  be  di- 
rected to  the  persons  named  in  the  petition  as  being  in  possession 
of  the  property .^5^ 

A  defect  in  the  summons  is  cured  by  the  appearance  of  the  de- 
fendant in  the  proceoding  for  the  purpose  of  trial,  without  ob- 
jection on  account  of  such  defect,^^*  though  it  is  different,  aj)- 
parently,  if  he  appears  merely  to  object  on  that  ground.*^*-^ 

In  a  majority  of  the  states  the  statute  contains  specific  provi- 
sions as  to  the  length  of  time  to  intervene  between  the  time  of 
issuing  or  serving  the  summons  and  the  time  named  therein  for 

*M  See  e.  g.,  Michigan  Comp.  Laws   not    sufficiently   show   his   right    to 
1S97,  §  11167;  Mississippi  Code  1906.    maintain  the  proceeding. 
§  2SS6;  yebrasJca  Comp.  St.  1905.  §       *st  People  v.  Kelly,  20  Hun  (N.  Y.) 
752S;  NeiD  Jersey,  2  Gen.  St  p.  1918.    549. 

§  12;  yev)  York  Code  Civ.  Proc.  §  *?s  Xew  York  Code  Civ.  Proc.  § 
223S;  yorth  Carolina  Revisal  1905,  §  2238.  See  Hill  v.  Stocking,  6  Hill 
2003:  Oft  to  Rev.  St.  1906.  §  6604;  (N.  Y.)  314.  41  Am.  Dec.  74S:  Cun- 
Oklcihoma  Rev.  St.  1903.  §  5091.  See  ningham  v.  Goelet,  4  Denlo  (N.  Y.) 
Deuel  V.  Rust,  24  Barb.  (N.  Y.)  43S:  71.  A  summons  addressed  to  a  firm 
Campbell  v.  Mallory,  22  How.  Pr.  (N.  was  held  to  be  sufficient  when  the 
Y.)   1S5.  names  of  the  members  appeared  in 

*S6  McGinnis  V.  Yernon,  67  Pa.  149 ;    the  title  of  the  cause  on  the  sum- 
Kaier  t.   Leahy,  15   Pa.   Co.   Ct.   R.    mons.     Case  v.  Porterfield,  54  App. 
243.     In   Carlisle  v.   Prior.  4S   S.   a    Div.  109,  66  N.  Y.  Supp.  337. 
1S3,  26  S.  E.  244,  it  is  stated  that  the       *J9  Sims  v.  Humphrey,  4  Denio  (N. 
noace  must  show  on  which  of  the   Y.)   1S5:   Nemetty  v.  Naylor,  100  N. 
^^rious  statutory  grounds   the  pro-   Y.   562,  3  N.  E.  497.     See  Mayes  v. 
ceeding  was  commenced.     The   "no-   Evans  (S.  C.)  61  S.  E.  216.      As  to 
tice"    in    that    jurisdiction    answers   what  constitutes  an  appearance  for 
apparently  to  what  is  ordinarily  call-   this  purpose,  see  Luhrs  v  Commoss, 
ed  the  "summons."     It  is  also  decid-   13  Abb.  N.  C.  (N.  Y.)  88. 
ed  in  that  case  that  an  allegation  in       490  Givens  v.   Miller,   62    Pa.   133; 
the  notice  that  the  plaintia  is  the    State  v.  Marshall,  24  S.  C.  507. 
executor  of  the  deceased  owner  does 


§  280 


SUMMONS  AND  RETURN.  1797 


its  return  or  the  trial  of  the  proceeding.  The  purx)Ose  of  the 
statutes  being  to  enable  the  landlord  to  speedily  obtain  the  pos- 
session to  which  he  is  entitled,  the  summons  is  ordinarily  required 
to  be  returnable  after  the  lapse  of  but  a  few  days,  while  the  per- 
son in  possession  is  protected  by  a  requirement  that  it  shall  not 
be  returnable  until  a  minimum  number  of  days  has  elapsed.^^^ 

"1  CaH/ornia  Code  Civ.  Proc.  §  1167  1906,  §  2887  (Summons  to  require 
(Must  require  defendant  to  appear  tenant  to  show  cause  on  a  day  not 
and  answer  within  three  days) ;  Colo-  less  than  three  nor  more  than  five 
rado,  Mills'  Ann.  St.  1891,  §  19J0  days  from  date) ;  Missouri  Rev.  St. 
(Summons  must  require  appearance  1899,  §  4132  (Summons  to  be  served 
in  not  less  than  five  nor  more  than  at  least  five  days  before  return  day)  ; 
seven  days,  nor  more  than  thirty  in  Nebraska  Comp.  St.  §  7527  (Service 
court  of  record);  District  of  Colum-  to  be  three  days  before  trial);  Ne- 
tia  Code  1901,  §  21  (Summons  must  vada  Comp.  Laws  1900,  §  3842  (Serv- 
issue  seven  days  before  trial);  Flor-  ice  to  be  at  least  two  days  before 
ida  Gen.  St.  1906,  §  2227  (Must  re-  return  day);  New  Hampshire  Pub. 
quire  defendant  to  remove  or  show  St.  1901,  c.  246,  §  8  (Service  to  be 
cause  within  not  less  than  three  nor  seven  days  before  return  day) ;  New 
more  than  five  days);  Georgia  Code  Jersey,  2  Gen.  St.  p.  1918,  §  13  (Sura- 
1895,  §§  4813,  4821  (Warrant  to  de-  mons  to  require  tenant  to  show  cause 
liver  possession  to  complainant  to  not  less  than  ten  nor  more  than  fif- 
be  executed  after  three  days,  unless  teen  days  from  date) ;  New  York 
counter  affidavit  filed  and  bond  giv-  Code  Civ.  Proc.  §  2238  (Precept  to 
en) ;  Illinois,  Kurd's  Rev.  St.  1905,  c.  be  made  returnable  not  less  than 
57,  §  7  (Summons  to  name  day  for  three  nor  more  than  five  days 
trial  not  less  than  five  nor  more  than  after  issuance,  except  that  when  pro- 
fifteen  days  from  date  of  summons,  ceeding  is  based  on  holding  over  by 
unless  in  court  of  record,  when  re-  tenant  and  is  instituted  on  day  of 
turnable  to  first  day  of  next  term);  expiration  of  lease,  or  the  next  day 
Indiana.  Burns'  Ann.  St.  1901,  §  7108  thereafter,  the  precept  may  be  made 
(Summons  to  require  appearance  in  returnable  on  the  same  day).  See 
not  less  than  five  nor  more  than  fif-  Russeil  v.  Ostrander,  30  How.  Pr.  93; 
teen  days  after  its  issuance) ;  loioa  Luhrs  v.  Commoss,  13  Abb.  N.  C.  88. 
Code  1897,  §  4214  (Appearance  to  be  in  North  Carolina  Revisal  1905,  §  2002 
not  less  than  two  nor  more  than  six  (Summons  to  require  appearance  at 
days  after  service,  unless  in  court  of  a  time  not  more  than  five  days  from 
record) ;  Michigan  Comp.  Laws  1897,  issue,  unless  by  con.sent) ;  Ohio  Rev. 
§  11167  (Summons  to  be  served  at  St.  1906,  §  6604  (Service  shall  be 
least  two  days  before  time  for  appear-  three  days  before  day  of  trial) ;  Okla- 
ance  named  therein );  ilfinnesof  a  Rev.  homa  Rev.  St.  1903,  §  5091  (ditto); 
Laws  1905,  §  4040  (Day  named  for  Oregon,  Bell.  &  C.  Cc:Ies,  §  5749 
appearance  to  be  not  less  than  three  (Service  to  he  not  less  than  two  nor 
nor  more  than  ten  days  from  issu-  more  than  four  days  before  day  of 
ance  of  summons);  Mississipi  Code   trial);      Pennsylvania,     Pepper     & 


1798  SUMMARY  PROCEEDINGS.  §  280 

"When  the  statute  requires  the  summons  to  be  returnable  in  not 
loss  than  three  days  after  issuauee,  it  may,  if  issued  on  the  twenty- 
first  day  of  the  month,  be  made  returnable  on  the  twenty-fifth,-*'*2 
hut  three  entire  days  must  elapse  between  the  date  of  issuance 
and  that  of  return,  and  it  cannot  be  made  returnal)le  in  such 
case  on  the  twenty-fourth.-* ^^  A  requirement  that  the  summons 
shall  be  returnable  "within  four  days"  is  satisfied  if  it  is  made 
returnable  on  the  fourth  day ,■*••■*  and  the  naming  of  an  excessive 
time  for  return  is,  like  other  defects,  cured  by  appearance  with- 
out objection.495  The  fact  that  the  writ  was  dated  six  days  be- 
fore the  return  day  named,  when  the  statute  provided  that  the 
interval  must  be  no  greater  than  five  days,  was  held  to  be  imma- 
terial, it  being  actually  issued  only  three  days  before.^^^ 

The  statutes  frequently  contain  specific  provisions  for  substi- 
tuted service,  in  case  the  person  to  whom  the  summons  is  directed 
is  not  found,  by  leaving  a  copy  at  his  place  of  residence  or  on  the 
premises,  with  some  person  of  suitable  age  and  discretion,  or  by 
posting  a  copy  on  the  premises.''^^     Such  substituted  service  is 

Lewis'  Dig.  Laws,  "Landlord  &  Ten-  five  days  before  return  day);   West 

ant,"  §§  25,  34  (Tenant  holding  over  Virfjinia  Code  1906,  §  3333    (Service 

to  show  cause  within  four  days  after  to  be  at  least  ten  days  before  return 

issuance,  and  tenant  not  paying  rent  day);    Wisconftin    Rev.    St.    §    3362 

to  appear  not   less  than  three  nor  (Summons  must  require  appearance 

more   than   eight   days   thereafter) ;  not  less  than  three  nor  more  than 

South    Carolina    Civ.    Code    1902,    §  ten  days  from  issuance);   Wyoming 

2423  (Summons  to  require  tenant  to  Rev.   St.  1899,   §  4488    (Summons  to 

show  cause  within  three  days  from  be   served    not  less   than   three  nor 

service);     Soxith    Dakota,    Justices'  more  than  twelve  days  before  trial). 

Code,  §  48  (Time  for  appearance  and  492  People   v.    Marvin    Safe   Co.,    5 

pleading  to  be  not  less  than  two  nor  Hun  (N.  Y.)  218. 

more   than   four   days   from   service  ^n.-?  Sallee  v.  Ireland,  9   Mich.  154. 

of  summons;)   Tennessee,  Shannon's  ^aiHower   v.    Krider,    15    Serg.  '& 

Code  1896,  §  5101   (Time  of  trial  not  R.  (Pa.)  43. 

to  be  less  than  six  days  after  serv-  495  Stroup    v.    McClure,    4    Yeates 

ice);    Teres  Rev.  St.  1895,  art.  2523  (Pa.)    523. 

(Time  for  appearance  to  be  not  more  .  •«  Powers  v.   De  0,  64  App.  Div. 

than  ten  nor  less  than  six  days  from  373,  72  N.  Y.  Supp.  103. 

date  of  citation) ;   Utah  Comp.  Laws  -t^T  Colorado,  Mills'  Ann.  St.  1891, 

1907,    §    3580     (Summons    shall    re-  §    1981;    District   of   Cohtmhia   Code 

quire  defendant   to   appear  not  less  1901,    §    1225;    Illinois.    Kurd's   Rev. 

than    three   nor    more    than    twelve  St.  1903,  c.  57,  §  4;  Indiana,  Burns' 

days   after  service);    Virginia  Code  Ann.    St.    1001,    §    7109;    Iowa  Code 

1904,  §  2717   (Service  to  be  at  least  1897,  §  4213;   Kansas  Gen.  St.  1905, 


§281 


ADJOURNMENT    OF    PROCEEDING.  1799 


valid  only  when  the  conditions  named  in  the  statute  are  shown  to 
exist.^^s  Service  on  a  person  in  possession  of  the  premises,  claim- 
ing to  be  the  lessee's  agent,  has  been  regarded  as  sufficient,  as 
against  the  lessee,  when  the  statute  provides  for  summoning  the 
lessee  "or  other  person  claiming  or  coming  into  possession  un- 
der the  said  lessee  or  tenant,  "^^^  and  service  on  one  member  of 
a  firm  was  regarded  as  sufficient  as  against  both,  when  the  other 
was  absent  from  the  city  and  non  compos  mentis,  and  the  mem- 
bers of  the  firm  were  subtenants,  the  member  who  was  served 
being  the  lessee.^"^ 

§  281.     Adjournment  of  the  proceeding. 

Since  the  object  of  the  statute  is  to  furnish  a  speedy  method 
of  obtaining  the  possession  to  which  one  is  entitled,  there  is  fre- 
quently to  be  found  a  provision  restricting  the  grounds  upon 
which  and  time  for  which  an  adjournment  may  be  granted.^'^i 

§  5845;   Kentucky  St.  1903,  §  2294;    son  in  the  absence  of  both,  the  stat- 
Michigan    Comp.    Laws    1897,    §    11,    ute   providing   for  substituted   serv- 
167;    Minnesota  Rev.   Laws   1905,    §    ice  on  the  person  named  in  the  pre- 
4041;  Mississippi  Code  1906,  §  2888;    cept,   in   his   absence,   by  leaving  a 
Missouri    Rev.    St.    1899,    §§    4116V    copy.     People   v.    DeCamp,    12    Hun 
4132;    Nevada   Comp.   Laws   1900,   §    (N.  Y.)    378. 
3843;   New  Jersey,  2  Gen.  St.  1923,       499  Watts  v.  Fox,  64  Pa.  336. 
§   35;    New   York   Code  Civ.  Proc.   §        soo  Ludwig    v.    Lazarus,    10    App. 
2240;    North   Carolina  Revisal    1905,    Div.  62,  41  N.  Y.  Supp.  773. 
§   2003;    Oklahoma  Rev.   St.  1903,   §        ^oi  Alabama    Code     1907,     §     4268 
5091;     Tennessee,     Shannon's    Code    (For  good  cause,  trial  may  be  post- 
1896,   §    5127;    Texas  Rev.   St.   1895,    poned    not  more   than   fifteen    days, 
art.   2525;   Wisconsin  Rev.   St.  1898,    at  the  cost  of  the  applicant);  Iowa 
§    3363.  Code  1897,  §  4215    (No  adjournment 

*98  See  People  v.  Boardman,  4  in  justice's  court  for  more  than  ten 
Keyes  (N.  Y.)  59;  Beach  v.  Bain-  days);  Kansas  Gen.  St.  1905,  §  5401 
bridge,  7  Hun  (N.  Y.)  81;  Rath-  (No  continuance  for  more  than 
burn  V.  Weber,  13  Civ.  Proc.  R.  (N.  eight  days  unless  applicant  files 
Y.)  50;  People  V.  Piatt,  43  Barb.  (N.  bond);  Michigan  Comp.  Laws  1897, 
Y.)  116;  Cameron  v.  McDonald,  1  §  11169  (If  no  appearance  on  return 
Hill  (N.  Y.)  512;  Deuel  v.  Rust,  day,  officer  may  adjourn  hearing 
24  Barb.  (N.  Y.)  438;  People  v.  not  more  than  six  days)  ;  Iff n??eso«o 
Matthews,  43  Barb.  (N.  Y.)  168;  Id.,  Rev.  Laws  1905,  §  4043  (Justice 
38  N.   Y.  451.  may,  in  discretion,  adjourn  trial  for 

Service  on  two  joint  lessees  can-  not  more  than  six  days,  or  for  three 
not  be  made,  it  has  been  decided,  by  months  if  no  written  lease  signed 
leaving  one  copy  with  another  per-    and   acknowledged   by  both  parties. 


1800  SUMMARY  PROCEEDINGS.  §  282 

§  282.    Findings  of  fact. 

In  order  to  justify  a  judgment  of  dispossession,  there  must  be 
a  finding  of  the  existence  of  the  facts  which,  under  the  statute, 
give  jurisdiction  to  render  such  a  judgment.^"^ 

The  statute  quite  frequently  provides  for  a  trial  by  jury,  usu- 
ally on  the  request  of  one  of  the  parties  to  the  proceeding.^^^^ 

and  defendant  makes  oath  as  to  ab-  rent) ;  Wyojning  Rev.  St.  1899,  §  4491 
sence  of  material  witness  and  gives  (No  continuance  for  more  than 
bond) ;  il/ississippt  Code  190C,  §  2891  eight  days  unless  defendant  gives 
(Magistrate  may,  at  request  of  undertaking  to  pay  rent  and  costs), 
either  party,  adjourn  the  hearing  002  Lacrabere  v.  Wise,  141  Cal.  554, 
Irom  time  to  time.  No  adjourn-  75  Pac.  185,  99  Am.  St.  Rep.  88 
ment  to  be  for  more  than  ten  days  (finding  of  service  of  notice  neces- 
unless  by  consent);  Nebraska  Comp.  sary) ;  Cambridge  Lodge  No.  9,  K. 
St.  1906,  §  7531  (same  as  Kansas);  p.  y.  Routh,  163  Ind.  1,  71  N.  B.  14S 
Nevada  Comp.  Laws  1900,  §  3845  (finding  of  nonpayment  of  rent  due, 
(Justice  may  adjourn  trial,  but  not  after  notice  to  pay,  necessary); 
more  than  five  days,  unless  defend-  Thomas  v.  Flamer,  1  Phila.  (Pa.) 
ant  makes  oath  as  to  absence  of  518,  12  Leg.  Int.  10  (finding  of  in- 
witness  and  gives  bond);  New  York  sufficiency  of  distress  necessary). 
Code  Civ.  Proc.  §  2248  (Adjourn-  noa  California  Code  Civ.  Proc.  § 
ment  in  discretion  of  justice,  to  en-  im-  Connecticut  Gen.  St.  1902,  § 
able  witnesses  to  be  procured,  for  108O;  Florida  Gen.  St.  1906,  §  2231; 
not  more  than  ten  days,  except  by  Qeorgia  Code  1895,  §  4816;  Idaho 
consent) ;  0?iio  Rev.  St.  1906,  §  6G06  code  Civ.  Proc.  §  3987;  Illinois, 
(No  continuance  for  more  than  Hurd's  Rev.  St.  1905,  c.  57,  §  10; 
eight  days  unless  undertaking  given  E:a7isas  Gen.  St.  1905,  §  5849;  Min- 
for  rent  to  accrue  and  costs);  Okla-  nesota  Rev.  Laws  1905,  §  4042;  Neb- 
homa  Rev.  St.  1903,  §  5093  (same  as  raska  Comp.  St.  1905.  §§  2005,  6556 
Ohio);  Oregon,  Bell.  &  C.  Codes,  §  a;  Nevada  Comp.  Laws  1900,  §  3844; 
5750  (No  continuance  for  more  ^Vew  Jersey,  2  Gen.  St.  p.  1918,  §  20; 
than  two  days,  unless  undertaking  j^jp^  york  Code  Civ.  Proc.  §  2247; 
given  to  pay  rent  to  accrue);  South  27orth  Carolina  Revisal  1905,  §  2005; 
Dakota,  Justices'  Code,  §  48  (No  ad-  Qhio  Rev.  St.  1906,  §  6608;  Pennsyh 
journment  for  more  than  fiver  days,  vania.  Pepper  &  Lewis'  Dig.  Laws, 
unless  applicant  gives  security  for  "Landlord  &  Tenant,"  §  25;  South 
rent  to  accrue  and  costs) ;  Texas  Rev.  Carolina  Civ.  Code  1902,  §  2421; 
St.  1895,  art.  2530  (For  good  cause,  Texas  Rev.  St.  1895,  art.  2525;  Vtah 
trial  may  be  postponed  not  more  than  Comp.  Laws  1907,  §  3581;  Vermont 
six  days) ;  Wisconsin  Rev.  St.  1898,  §  Pub.  St.  1906,  §  1871;  Virginia  Code 
3365  (No  adjournment  for  more  1904,  §  2719;  Washington.  Ball.  Ann 
than  six  days  after  return  day  un-  Codes  &  St.  §  5539.  The  statutes 
less  affidavit  as  to  absence  of  ma-  above  cited  of  California,  Georgia, 
terjal   witness    and   bond   given   for    Idaho,    and    Pennsylvania,    provide 


§283 


JUDGMENT  OE  ORDER, 


1801 


§  283.    Judgment  or  order. 

a.  In  default  of  appearance.  A  number  of  the  statutes  have 
provisions  bearing  upon  the  question  whether,  upon  failure  of 
the  defendant  to  appear,  a  juJgmekc  for  possession  shall  be  given 
in  favor  of  the  plaintiff.  By  some  it  is  provided  that  possession 
shall  be  awarded  unless  cause  to  the  contrary  is  shown,^^^  while 
by  others  it  is  provided  that  if  he  lails  to  appear  the  trial  sba'l 
proceed  as  if  he  had  appeared  and  pleaded.^^^  Even  though  the 
statute  provides  for  a  trial  in  the  ibsence  of  any  appearance  by 
defendant,  judgment  may  be  rend-^'red  on  the  pleadings  if  he  ad- 
mits the  material  allegations  of  the  complaint  and  alleges  no 
defense.^^^ 

It  has  been  decided  that  if  tl  o  plaintiff  produces  a  written 


that  tho  trial  shall  be  by  a  Jury. 
The  statute  of  Tennessee  (Shan- 
non's Code,  §  5102)  provides  that 
the  trial  shall  be  without  a  jury. 

504  California  Code  Civ.  Proc.  § 
11G9  (K  defendant  does  not  appear, 
his  default  to  be  entered  and  judg- 
ment for  plaintiff);  Florida  Gen.  St. 
1906,  §  2230  (If  no  cause  to  contrary 
shown,  judgment  for  possession  in 
favor  of  plaintiff) ;  Idaho  Code  Civ. 
Proc.  §  3986  (Same  as  California); 
Maine  Rev.  St.  1903,  c.  .96,  §  5  (If 
defend:^nt  defaulted,  or  fails  to 
show  sufficient  cause,  judgment  for 
possession);  New  Jersey,  2  Gen.  St. 
p.  1919,  §  16  (If  no  sufficient  cause 
shown  to  contrary,  warrant  of  pos- 
session to  issue).  See  Watson  v. 
Idler,  54  N.  J.  Law,  467,  24  Atl.  554. 
Neio  York  Code  Civ.  Proc.  §  2249 
(Substantially  same  as  New  Jer- 
sey). See  Peer  v.  O'Leaery,  8  Misc. 
350,  28  N.  Y.  Supp.  687;  People  v. 
Murray,  2  Misc.  152,  23  N.  Y.  Supp. 
160;  Id.,  138  N.  Y.  635,  33  N.  E. 
1084;  Brown  v.  City  of  New  York, 
66  N.  Y.  385.  North  Carolina  Re- 
visal  1905,  §  2004  (If  no  appearance, 
judgment  for  removal). 

505  ^.zaftama  Code  1907,  §  4268   (If 


I  efendant  does  not  appear,  or  de- 
I  lines  to  plead,  cause  to  proceed  as 
it  he  had  pleaded  not  guilty);  Illi- 
ois,  Kurd's  Rev.  St.  1905,  c.  -57,  § 
2  (If  defendant  does  not  appear, 
.  rial  may  be  ex  parte) ;  Kansas  Gen. 
"t.  1905,  §  5400  (Trial  to  proceed  as 
If  defendant  present);  Minnesota 
ftev.  Laws  1905,  §§  4040,  4042,  4044. 
Dee  Hennessey  v.  Pederson,  28 
Minu.  461,  11  N.  W.  63.  Michigan 
Oomp.  Laws  1897,  §  11170  (If  no  ap- 
pearance and  case  not  adjourned, 
officer  shall  try  the  case) ;  Missis- 
sippi Code  1906,  §  28S9  (If  no  cause 
;hown  to  the  contrary,  warrant  of 
"estitution  shall  issue) ;  Nebraska 
Comp.  St.  1905,  §  7530  (same  as 
Kansas) ;  Ohio  Rev.  St.  1906,  §  6605 
«'If  no  appearance  by  defendant, 
:rial  to  be  as  if  he  were  present) ; 
Oklahoma  Rev.  St.  1903,  §  5092 
(same  as  Ohio);  West  Virginia 
Oode  1906,  §  3333  (If  no  appearance, 
jury  shall  try  issue) ;  Wyoming 
Rev.  St.  1899,  §  4489  (If  no  appear- 
ance, justice  to  try  cause  as  if  plain- 
tiff were  present). 

506  Norton   v.   Beckman,   53   Minn. 
156,  55   N.  W.   603. 


1S02  SUMMARY  PROCEEDINGS.  §  283 

lease  as  that  under  which  defendant  held,  he  cannot,  on  failure 
to  prove  the  formal  execution  thereof,  maintain  the  proceeding 
on  oral  proof  of  possession  and  payment  of  rent  by  defendant.^"' 
A  warrant  of  attorney  in  the  instrument  of  lease,  authorizing 
a  confession  of  judgment  for  possession  in  favor  of  the  landlord 
in  a  summary  proceeding,  has  in  one  state  been  held  to  be  in- 
valid, and  insufficient  to  support  such  a  judgment,  rendered 
without  the  issuance  of  any  process.^*^^  In  another  state,  how- 
ever, there  is  a  recognized  practice  by  which  a  judgment  for  pos- 
session may  be  entered  in  favor  of  the  landlord,  in  wliat  is  knowTi 
as  an  "amicable  action  of  ejectment,"  under  such  a  warrant  of 
attorney,  upon  the  expiration  of  the  term  or  upon  a  default  by 
the  tenant  of  a  character  named,  the  judgment  being  subject  to 
be  stricken  off  if  shown  to  have  been  confessed  without  justifica- 
tion.509 

b.  For  rent  or  damages.  The  statute  usually  provides  that,  in 
case  the  decision  is  in  favor  of  the  petitioner  or  plaintiff  in  the 
proceeding,  judgment  shall  be  rendered  for  possession  and  costs, 
while,  if  for  the  defendant,  the  judgment  shall  be  for  costs.  Tho 
statute  also  quite  frequently  provides  that  when  the  proceeding 
is  based  on  the  nonpayment  of  rent,  judgment  shall  be  given  for 
the  amount  of  the  rent  due,  and  occasionally  for  twice  or  treble 
this  amount.^^^     In  some  of  the  states  the  landlord,  proceeding 

507  Barry  v.  Ryan,  70  Mass.  (4  man  v.  Butterfield,  135  Pa.  236,  19 
Gray)  523,  64  Am.  Dec.  92,  where  Atl.  938;  Stewart  v.  Jackson,  181 
it  is  stated,  as  a  reason  for  so  hold-    Pa.   549,   37  Atl.   518. 

ing,  that  the  law  will  imply  no  con-  sio  California    Code    Civ.    Proc.    § 

tract   when   the   parties   have   made  1174    (Three   times  amount  of  rent 

an    express    one,    and    the    plaintiff,  due).     See  Nolan  v.  Hentig,  138  Cal. 

having   produced   what   he   asserted  281,     71     Pac.     440.     Georgia     Code 

to    be   an   express    contract,    cannot  ISPS,     §     4817     (Double     stipulated 

deny  its  existence.  rent).     See  Sykes  v.  Benton,  90  Ga. 

508  French  v.  Wilier,  126  111.  611,  402,  17  S.  E.  1002.  Michigan  Comn. 
18  N.  E.  811,  2  L.  R.  A.  717,  9  Am.  Laws  1S97,  §  11168;  Missotiri  Rev. 
St.  Rep.  651.  St.     1899,     §     4132;     Montana    Rev. 

509  See  Cook  v.  Gilbert,  8  Serg.  &  Codes  1907,  §  7283  (Three  times 
R,  (Pa.)  567,  11  Am.  Dec.  632;  Mc-  amount  of  rent  due);  Utah  Comp. 
Calmont  v.  Peters.  13  Serg.  &  R.  Laws  1907,  §  3584  (Three  times 
(Pa.)  196;  Flanigen  v.  City  of  Phil-  amount  of  rent  due);  Washington. 
adelphia,  51  Pa.  491;  Grossman's  Ball.  Ann.  Codes  &  St.  §  5542  (Twice 
Appeal,  102  Pa.  137,  48  Am.  Rep.  amount  of  rent  due).  See  Bond  v. 
196;  Svartz's  Appeal,  119  Pa.  20S,  Chapman,  34  Wash.  606,  76  Pac.  97. 
13  Atl.  69,  4  Am.  St.  Rep.  631;  Dike- 


283 


JUDGMENT  OR  ORDER, 


1803 


against  the  tenant  holding  over,  is  entitled  to  judgment  for  com- 
yensatiou  or  damages  on  account  of  such  holding  over,^^^'^^^  or  oc- 
casionally for  double  or  treble  the  agreed  rent  or  rental  value 
for  the  time  of  such  wrongful  holding.^^^  ^  recovery  of  any  rent 
which  may  be  in  arrear  is  also  occasionally  authorized,  even 
though  the  proceeding  is  based  merely  on  a  holding  over  by  the 
tenant,^^'* 

It  has  been  held  that  there  can,  in  a  proceeding  based  on  non- 
payment of  rent,  be  no  judgment  for  the  unpaid  rent,  unless  the 
statute  expressly  authorizes  it,^!^  nor  can  a  judgment  for  com- 


cii, 5] 2 AZa&ama  Code  1907,  §  4273; 
Arkansas,  Kirby's  Dig.  St.  1904,  § 
3644;  California  Code  Civ.  Proc.  § 
1174  (Treble  damages);  Colorado, 
Mills'  Ann.  St.  1891,  §  1995  (Treble 
damages,  recoverable  In  separate 
suit) ;  District  of  Columbia  Code 
1901,  §§  996,  122«;  Idaho  Code  Civ. 
Proc.  §  3990  (same  as  California) ; 
Indiana,  Burns'  Ann.  St.  1901,  § 
7106.  (See  Whipple  v.  Shewalter, 
91  Ind.  114;  Thomas  v.  Walmer,  18 
Ind.  App.  112,  46  N.  E.  695).  Mon- 
tana Rev.  Codes  1907,  §  7283  (Treble 
damages) ;  Nevada  Comp.  Laws 
1900,  §  3849  (Treble  damages) ; 
North  Carolina  Revisal  1905,  §§ 
2004-2006;  North  Dakota  Rev.  Codes 
1905,  §  8441;  Pennsylvania,  Pepper 
&  Lewis'  Dig.  Laws,  "Landlord  & 
Tenant,"  §§  25,  28.  See  Murtland  v. 
English,  214  Pa.  325,  63  Atl.  882. 
Tennessee,  Shannon's  Code  1896,  §§ 
5112,  5116;  Utah  Comp.  Laws  1907, 
§  5584;  Washington,  Ball.  Ann. 
Codes  &  St.  §  5542.  See  Hinckley  v. 
Casey,  45  Wash.  430,  88  Pac.  753. 
Wisconsin  Rev.  St.  1898,  §  3367. 

513  Alabama  Code  1907,  §  4273; 
District  of  Columbia  Code  1901,  §§ 
996,  1226;  Georgia  Code  1895,  § 
4817  (semble). 

Vermont  Pub.  St.  1906,  §  1873,  au- 
thorizing  recovery   of   "rents"   in   a 


proceeding  against  a  tenant  holding 
over,  does  not  refer  to  the  rent  re- 
served, but  a  fair  and  reasonable 
compensation  for  the  use  of  the 
premises.  Baldwin  v.  Skeels,  51  Vt. 
121.  For  a  like  construction  of  a 
substantially  similar  statute,  see 
Leahy  v.  Lubman,  67  Mo.  App.  191. 

C14  District  of  Columbia  Code  1901, 
§§  996,  1226  (Landlord  may  embody 
in  his  declaration  claim  for  arrears 
of  rent,  for  double  rent,  or  for  dam- 
ages for  waste) ;  North  Carolina 
Revisal  1905,  §§  2002,  2005  (Plain- 
tiff may  claim  rent  in  arrear). 

515  Ow  V.  Wickham,  38  Kan.  225, 
16  Pac.  335;  Jarvis  v.  Driggs,  69  N. 
Y.  147;  Bennett  v.  Nick,  29  Misc. 
632,  61  N.  Y.  Supp.  106;  Spiio  v. 
Barkin,  30  Misc.  87,  61  N.  Y.  Supp. 
870;  Stelle  v.  Creamer,  69  App.  Div. 
296,  74  N.  Y.  Supp.  669.  In  Whipple 
v.  Shewalter,  91  Ind.  114,  it  is  de- 
cided that,  conceding  that  the 
plaintiff  had  no  right  to  assert  such 
claim  in  the  summary  proceeding, 
objection  on  that  account  must  be 
promptly  made.  In  Duke  v.  Comp- 
ton,  49  Mo.  App.  304,  it  was  decided 
that  a  provision  giving  the  trans- 
feree of  the  reversion  the  right,  on 
a  default  in  rent,  to  institute  the 
proceeding  to  recover  possession, 
did  not  give  him  the  benefit  of  the 


1S04  SUMMARY  PROCEEDINGS.  §  283 

pensation  for  the  loss  of  the  use  of  the  premises  be  rendered  in 
a  proceeding  against  a  tenant  holding  over  his  term,  in  the  ab- 
sence of  statutory  authority  therefor.^^*' 

The  statutory  right  of  the  landlord  to  recover  overdue  rent,  in 
a  summary  proceeding  based  on  nonpayment  of  the  rent,  is  not 
waived,  it  has  been  held,  by  his  acceptance  of  rent  falling  due 
after  the  institution  of  the  proceeding,  though  he  thereby  waives 
his  right  to  recover  possession  for  nonpayment.^^'^  Nor  is  the 
landlord's  statutory  right  to  recover  damages  and  costs  against 
a  tenant  holding  over  affected  by  the  fact  that  pending  the  pro- 
ceeding the  tenant  relinquishes  possession  to  him.-"^^^ 

It  has  been  held  in  one  jurisdiction  that  the  plaintiff  cannot  re- 
cover double  damages  under  the  statute  unless  they  are  claimed 
in  the  complaint,^^'^  though  a  different  view  has  been  adopted  in 
other  jurisdictions  on  a  construction  of  the  local  statute.^^o  x^ 
has  also  been  decided  that  where  the  statute,  in  naming  the  requi- 
sites of  the  complaint,  does  not  refer  to  the  necessity  of  a  prayer 
for  a  judgment  for  rent,  such  prayer  is  unnecessary  to  uphold  a 
judgment  for  the  rent,  for  nonpayment  of  which  possession  is  de- 
manded.^21  lu  t^g  jurisdiction  first  referred  to  it  was  also  de- 
cided that  rent  becoming  due  between  the  time  of  the  trial  and 
the  time  of  the  filing  of  the  complaint  could  not  be  recovered  in 
the  absence  of  the  assertion  of  a  claim  therefor,  either  in  the 
original  complaint  or  in  a  supplement  thereto,'522  \y■^^l  g,  different 
view  has  been  taken  in  another  state. ^^^a 

A  provision  of  the  statute  authorizing  the  recovery  of  damages 
for  the  detention  of  the  premises,  *Ho  be  estimated  up  to  the 

statute   entitling   the   "landlord"    to  v.  Wilbur,  4  Wash.  644,  30  Pac.  665; 

recover  both  posse<;sion  and  rent.  Gaffney   v.   Megrath,   11   Wash.   456, 

616  Clark    V.    Snow,    24    Tex.    242;  39  Pac.  973.     See  Hart  v.  Pratt,   19 

Sargent    v.     Smith,    78     Mass.     (12  Wash.  560,  53  Pac.  711. 

Gray)    426;    Shunick   v.   Thompson,  b2o  pettis  v.  Brewster,  94  Ga.  527, 

25   111.  App.  619;   Mackenzie  v.  Por-  19  S.  E.  755;   Bierkenkamp  v.  Bier- 

ter,  40  Colo.  340,  91  Pac.  916.  kenkamp,  88  Mo.  App.  445. 

517  Neiner    y.    Altemeyer,    68    Mo.  b2i  Shields  v.  Stillman,  48  Mo.  82. 

App.  243.  522  State    v.    Pittenger,    37    Wash. 

B18  Peters  v.  Fisher,  50  Mich.  331,  384,  79  Pac.  942. 

15  N.  W.  496;   McLain  v.  Nurnberg,  523  Nolan  v.  Hentig,  138  Cal.   281, 

16  N.  D.  144,  112  N.  W.  243.  See  71  Pac.  440.  And  see  Goesse  & 
Hebron  Church  v.  Adams,  121  Mass.  Remmers  Bldg.  &  Cont.  Co.  v.  Kin- 
257;   Barnett  v.  Feary,  101   Ind.  95.  nerk,  127   Mo.  App.  451,  105   S.  W. 

619  Hall  &  Paulson  Furniture  Co.    673. 


.  284  APPEAL  AND  CERTIORARI.  1S06 

time  of  trial,"  has  been  held  to  autliorize  damages  in  excess  of  the 
amount  named  in  the  complaint-^^^  In  computing  such  damages, 
it  has  been  decided,  the  rental  value  of  the  property,  and  any 
loss  of  profits  or  rents  from  the  detention  of  the  premises,  may 
be  considered.'^25 

In  case  of  a  proceeding  against  a  tenant  and  a  subtenant,  it  has 
been  said,  a  judgment  for  possession  should  be  entered  against 
both,  and  a  judgment  for  double  rent  against  the  former  only.^^' 

§  284.    Appeal  and  certiorari. 

The  statutes  almost  invariably  authorize  an  appeal  by  the  per- 
son against  whom  the  judgment  is  given  in  the  proceeding,  such 
appeal  being  effective  to  stay  the  execution  of  a  judgment  of 
dispossession  only  in  case  the  appellant  gives  a  bond  or  under- 
taking, sufficient  to  satisfy  any  damage  to  the  plaintiff  caused 
by  the  continued  withholding  of  possession.J^^T    The  appeal  is  or- 

B24  White  V.  Stellwagon,  54  Ind.  Maryland  Code  Pub.  Gen.  Laws  1904, 
^gg  art.    53,    §    2;     Massachusetts    Rev. 

52.Barnett  v.  Feary.  101  Ind.  95;  Laws  1S02.  c.  181.  §  6;  Michigan 
Lautmann  v.  Miller,  158  Ind.  382.  Comp.  Laws  1897.  §  11176;  Minne- 
63  N  E  761;  Campbell  v.  Nixon,  2  sota  Rev.  Laws  1905,  §  4047;  Mts- 
Ind  App  463.  28  N.  E.  107;  Pence  souri  Rev.  St.  1899,  §  4139;  Nebras- 
V.  Williams.  14  Ind.  App.  86.  42  N.  ka  Comp.  St.  1905.  §  7539;  Nevada 
E  494-  Thomas  v.  Walmer,  18  Ind.  Comp.  Laws  1900.  §  3849;  Neio 
App    112    46  N.  E.   695.  Hampshire   Pub.   St.   1901,  c.   246,   5 

Special  damages,  it  is  said,  can-  17;  Nezo  Mexico  Comp.  Laws  1897. 
not  be  recovered,  if  not  alleged.  §§  3357,  3358;  New  York  Code  Civ. 
Thomas  v  Walmer,  18  Ind.  App.  Proc.  §  2262;  North  Carolina  R^ 
112  46  N  E  695.  The  special  dam-  visal  1905,  §  2008;  Oregon,  Bell.  & 
ages  here  in  question  were  for  waste.  C.  Codes.  §  5754;  South  Carolina 
5'>6  Fletcher  v.  Fletcher.  123  Ga.  Civ.  Code  1902,  §  2423;  Tennessee, 
470    51  S    E    418  Shannon's  Code  1896.  §§  5108,  5110; 

.2,  Alabama  Code  1907,  §  4281;  Texas  Rev.  St.  1895.  art.  2534;  r/iaTi 
Arizona  Rev.  St.  1901,  §§  2684,  2693;  Comp.  Laws  1907.  §  3586;  Vermont 
Colorado,  Mills'  Ann.  St.  1891.  §§  Pub.  St.  1906,  §  1876;  Yirgima  Code 
1987  1988-  Connecticut  Gen.  St.  1904,  §  2720;  Washington,  Ball. 
1902'  5  1087-  District  of  Columbia  Ann.  Codes  &  St.  §  5546;  West  Yxr- 
Code  1901,  §'l232;  Florida  Gen.  St.  ginia  Code  1906.  §  2169;  Wisconsin 
1906  §  2234-  Georgia  Code  1895,  §  Rev.  St.  1898,  §  3368. 
48n'  'Illinois,  Kurd's  Rev.  St.  c.  57,  As  to  liabilities  on  appeal  bonds 
8  10-  Indiana,  Burns'  Ann.  St.  1901.  In  such  proceedings,  see  King  v. 
8  7112-  Kansas  Gen.  St.  1905.  §  Brewer.  19  Ind.  267;  Stults  v.  Zahn. 
5809;  Maine  Rev.  St.  1903,  c.  96.  §  8;    117  Ind.  297,  2  N.  E.  154;  Harring- 


1S06 


SUMMARY  PROCEEDINGS. 


§284 


dinarily  to  a  superior  court  of  original  jurisdiction,  and  the  trial 
in  such  court  proceeds  as  if  the  cause  had  been  originally  insti- 
tuted there.  Occasionally  the  statute  specifically  provides  for 
the  removal  of  a  proceeding  of  this  character  to  a  higher  court 
by  writ  of  certiorari.'^^s  Jq  some  jurisdictions  such  a  writ  will  lie 
under  general  statutory  proA'isions  or  under  common-law  rulcs.'^^o 
In  case  judgment  of  dispossession  is  awarded  in  favor  of  the 
plaintiff  in  the  lower  court,  and  he  is  put  in  possession  thereunder, 
the  appellate  court  will,  in  a  proper  case,  upon  reversing  such 
judgment,  issue  a  writ  of  restitution  restoring  the  defendant  to 
the  possession  of  the  prcmises.^^o  Such  a  writ  will  not  issue, 
however,  if  there  is  a  mere  reversal  without  rendition  of  any 
judgment  in  the  higher  court,^^^  nor  if  it  clearly  appears  that  the 
plaintiff  has  no  longer  any  interest  in  the  land,  entitling  him  to 
possession. ^532  jj^  ^j^p  state  it  is  said  that  the  writ  will  issue  in 
case  the  reversal  is  for  jurisdictional  defects  in  the  proceedings, 
but  not  when  it  is  based  on  mere  irregularities.'^^a 


ton  V.  Brown,  24  Mass.  (7  Pick.) 
232;  Byrne  v.  Morrison,  25  App. 
D.  C.  72;  Bartholomew  v.  Chapin, 
51  Mass.  (10  Mete.)  1;  Davis  v.  Alden, 
68  Mass.  (2  Gray)  309;  Jackson  v. 
Richards.  82  Mass.  (16  Gray)  497; 
Pray  v.  Wasdell,  146  Mass.  324,  16 
N.  E.  266. 

028  Michigan  Comp.  Laws  1905,  § 
11179;  Fennsylvania.  Pepper  &  Lew- 
is' Dig  Laws,  "Landlord  &  Tenant," 
§  28;  Tennessee,  Shannon's  Code 
1896,   §    5111. 

B29  See  Morris  Canal  &  Banking 
Co.  V.  Mitchell,  31  N.  J.  Law,  99; 
Layton  v.  Dennis,  43  N.  J.  Law,  380; 
Roberts  v.  McPherson,  62  N.  J.  Law, 
165,  40  Atl.  630;  Id.,  63  N.  J.  Law, 
352,  43  Atl.  1098;  Benjamin  v.  Ben- 
jamin, 5  N.  Y.  (1  Seld.)  383;  Free- 
man V.  Ogden,  40  N.  Y.  105. 

Where  the  statute  authorized  the 
plaintiff,  in  case  restitution  of  the 
premises  was  awarded  him  upon  the 
tenant's  appeal,  either  to  recover  on 
the  appeal  bond  or  to  sue  In   tres- 


pass or  in  case  for  the  unlawful  de- 
tainer and  for  all  other  damage  sus- 
tained by  him,  it  was  hold  that,  hav- 
ing elected  to  sue  on  the  bond,  and 
having  recovered  the  rental  value 
of  the  premises  up  to  the  time  of 
the  rendition  of  the  judgment  of 
restitution,  the  landlord  could  not 
afterwards  sue  for  items  of  damage 
not  recoverable  in  the  action  on  the 
bond.  Schellenberg  v.  Frank,  139 
Mich.  183,  102  N.  W.  644. 

550  See  Du  Bouchet  v.  Wharton, 
12  Conn.  533;  McGee  v.  Fessler,  1 
Pa.   126. 

531  Mears  v.  Remare,  34  Md.  333. 

532  Chretien  v.  Doncy,  1  N.  Y.  (1 
Comst.)  419;  McGee  v.  Fessler,  1  Pa. 
126.  See  McQuade  v.  Emmons,  38 
N.  J.  Law,  397.  So  restitution  was 
refused  when  the  plaintiff  was  not 
entitled  to  possession  owing  to  the 
existence  of  a  receivership.  Marsh 
V.  Masterson,  15  Daly,  114,  3  N.  Y. 
Supp.  414. 

533  People  V.   Piatt,   43   Barb.    (N. 


.  985  WARRANT  OF  DISPOSSESSION.  1807 

The  landlord  may,  it  has  been  decided,  have  such  a  judgment 
in  the  higher  court  as  will  give  him  his  costs  and  entitle  him  to 
the  benefit  of  any  recognizance  which  he  may  have  taken  to 
secure  intervening  rent  upon  the  appeal  from  the  ma:4istrate, 
although,  pending  the  appeal,  the  tenant  may  have  relinquished 
possession  to  him,^-^^  or  the  landlord's  estate,  and  consequent  right 
of  possession,  may  have  come  to  an  end.^ss 

It  has  been  decided  that  where  the  statute  provided  that  the 
tenant  might,  at  any  time  before  the  time  appointed  for  show- 
ing cause,  file  an  affidavit  denying  the  facts  alleged,  which  mat- 
ters might  be  tried  by  the  magistrate,  and  it  also  provided  that 
on  appeal  the  case  should  be  tried  anew,  the  tenant  might  file 
such  affidavit  on  appeal."'-'''^ 

The  fact  that  the  complaint  is  required  by  the  statute  to  be 
verified  in  order  to  confer  jurisdiction  on  the  justice  does  not, 
it  has  been  decided,  preclude  an  amendment  on  appeal,  increasing 
the  amount  demanded  for  damages,  without  a  new  verification.^^T 

After  the  landlord  has  obtained  a  judgment  for  possession  and 
for  rent  up  to  a  specified  date,  and  the  tenant  has  appealed, 
giving  a  bond  to  relinquish  possession  upon  the  affirmance  of  the 
judgment  and  to  pay  all  damages  and  all  rent  due  up  to  the 
time  of  such  relinquishment,  another  action,  between  the  same 
parties,  cannot  be  instituted  to  recover  possession  of  the  same 
premises  and  for  rent  from  the  time  of  the  recovery  of  such 
judgment  in  the  former  proceeding.^^s 

§  285.    Warrant  of  dispossession. 

In  case  the  judgment  is  in  favor  of  the  plaintiff,  a  warrant 
issues  directing  the  delivery  to  him  of  the  possession  of  the 
premises.  It  is  the  duty  of  the  officer  executing  the  warrant  to 
remove  all  persons  who  are  parties  to  the  proceeding,  and,  it 

Y.)  116;  People  v.  Hamilton,  15  Abb.    Mass.  309;   Casey  v.  King,  98  Mass. 
Pr    (N.  Y.)   328;   Bristed  v.  Harrell,    503. 

/^„    ./.  -VT  ■«■  a, aan      Qoa  s.sG  Harvey  v.  Clark,  81  Miss.  166, 

21  Misc.  93,  46  N.  Y.  Supp.  966.     bee  „„„„„„•' 

„^  n.T    -tr    4r-i  32  So.  906. 

People  V.  Matthews,  38  N.  Y.  451.  ^^^^^^     ^^^^^     ^      Becker-Moore 

534  Hebron   Church  v.  Adams,  121  p^.^^  ^^^  ^^^  ^^^  ^pp   357,  80  S.  W. 

Mass.   257.  346. 

B35  Coburn  v.  Palmer,  62  Mass.  (8  nss  McLain  v.  Nurnberg,  16  N.  D. 

Cush.)     124;     King    v.    Lawson,    98  138,  112  N.  W.  245. 


1S08  SUMMARY  PROCEEDINGS.  §  285 

seems,  all  those  persons  on  the  premises  who  are  there  as  mem- 
bers of  the  tenant's  family,  servants  or  licensees.'^^g  Hq  has  been 
held  to  be  liable  in  damaj^es  if  he  ejects  persons  not  holding 
under,  or  deriving  title  from,  parties  to  the  proceeding,  although 
the  warrant  required  him  to  remove  the  defendant  in  the  pro- 
ceeding "and  aU  others, "^'*°  and  this  is  in  accord  with  the  modern 
decisions,  as  to  t^^e  execution  of  a  writ  for  the  possession  of 
lands,  that  persons  not  parties  cannot  be  removed  thereunder.^* ^ 
It  has  been  decided  that  the  officer  owes  no  duty  to  the 
landlord  to  remove  the  tenant's  goods,  but  that  he  may  do  so  as 
representative  of  the  landlord.^*^  Jq  one  state  it  is  said  that  if 
he  removes  the  goods,  and  the  tenant  refuses  to  take  them  as  they 
are  removed,  he  is  bound  to  exercise  reasonable  care  in  storing 
them.^^^  Elsewhere,  however,  it  is  said  that  the  landlord  may 
leave  them  on  the  sidewalk,  without  any  responsibility  in  ref- 
erence to  their  future  disposition,'^-**  and  that  he  is  not  liable 
because  the  goods  are  removed  by  him  in  the  rain  and  so  in- 
jured.^*^  If  he  chooses  to  care  for  or  store  them,  he  cannot 
assert  any  riglit  to  charge  storage.^*"  If  he  refuses  to  relinquish 
the  goods  when  demand  is  made,  he  becomes  liable  as  for  con- 
version,'^*'^ but  not  if  they  are  still  on  the  premises  and  these  are 

539  See  ante,  at  note  140.  Bayliss,  40  N.  J.  Law,  60.     But  see 

640  Colt    V.    Eves,    12    Conn.    243.  Danforth   v.    Stiatton,   77   Me.   200; 

But  in  Inhabitants  of  Union  Tp.  v.  Scott  v.   Richardson,   41   Ky.    (2   B. 

Bayliss,  40  N.  J.  Law,  60,  it  is  said  Men.)  510,  38  Am.  Dec.  170. 

to   be   the   officer's   duty   to   remove       543  Gaertner  v.  Bues,  109  Wis.  165, 

"all   persons   in  possession,   as  well  85  N.  W.  3S8.     Compare  ante,  §  255b, 

the  defendant  as  other  persons  not  at  notes  25-29. 

parties   to   the    record."     The    opin-       544  Conway  v.  Kennedy,  2  City  Ct. 

ion  cites  authorities  bearing  on  the  R.  (N.  Y.)   309. 

execution    of    the    writ    of    habere       545  Higenbothem  v.  Lowenbein,  28 

facias  issued  in  an  ejectment  under  How.  Pr.   (N.  Y.)   221. 

the  old  law,  in  which  case  the  exe-       •'•■4fi  Roberts     v.     Kain,     29     N.     Y. 

cution   of  the  writ  rgninst  persons  Super.  Ct.  (6  Rob.)   354;  Conway  v. 

other  than  parties  to  the  record  was  Kennedy,  2  City  Ct.  R.  (N.  Y.)   300. 

absolutely    necessary    to    render    a  Compare  ante,  §  255  b,  at  note  546. 

judgment  against  the  casual  ejector       547  Conway  v.  Kennedy,  2  City  Ct. 

effective.  R.  fN.  Y.")  309;   Smusch  v.  Kohn,  22 

541  See  Freeman,  Executions,  §  Misf.  344,  49  N.  Y.  Supp.  17C;  Reich 
4T5;  Murfree,  Sheriffs  (2d  Ed.)  §  v.  Cochran,  114  App.  Div.  141,  9*S 
1022.  N.  Y.  Supp.  755. 

542  Inhabitants    of    Union    Tp.    v. 


^  2S6  CONCLUSIVENESS  OF  JUDGMENT.  1809 

in  the  possession  of  another,  since  in  such  case  the  demand  should 
be  made  on  the  latter.^^s  Both  the  landlord  and  the  officer  are  no 
doubt  liable  for  injuries  wantonly  caused  to  the  tenant's  goods.^^® 
It  is  said  that  the  tenant  has  a  reasonable  time  within  which  to 
remove  his  chattels,  after  the  dispossession  in  summary  proceed- 
ijjgs_65o  His  right  of  property  therein  cannot  be  lost,  however, 
by  his  mere  delay  in  asserting  it,  until  the  statute  of  limitations 
has  run  against  himSf^i-  552  though  any  delay  beyond  a  reasonable 
time  in  this  regard  would  deprive  him  of  the  right  to  go  on  the 
premises,  for  the  purpose  of  removing  his  chattels,  without  there- 
by becoming  liable  as  a  trespasser. 

§  286.     Conclusiveness  of  judgment. 

A  judgment  in  a  summary  proceeding  determining  the  right  of 
possession  is  a  bar  to  any  subsequent  action  or  proceeding  based 
upon  a  claim  by  the  defeated  party  that  he  and  not  the  other  should 
have  had  judgment  for  possession.-'^s^  But  the  judgment  is  not 
a  bar  to  a  subsequent  proceeding  by  the  landlord  to  recover  rent, 
or  damages  for  holding  over,  even  though  these  might  have  been 
recovered  in  such  proceeding,^^^^  nor  is  it  a  bar  to  an  action  for 
breach  of  covenants  by  either  party.^^^  it  is  a  bar  to  another 
proceeding  by  the  landlord  to  obtain  possession  based  upon  the 
same  state  of  facts.^^^ 

A  judgment  in  a  summary  proceeding  is  ordinarily,  like  a 
judgment  in  any  other  legal  proceeding,  conclusive  as  to  such 
facts  as  are  necessary  conditions  to  the  rendition  of  the  judg- 
ment.^^'^  Applying  this  rule,  it  has  been  stated  in  a  number  of 
cases  that  a  judgment  for  plaintiff  is  conclusive  as  to  the  exis- 

648  Peck  V.  Knox,  31  N.  Y.  Super.  Rep.  929;  Campbell  v.  Nixon,  2  Ind. 

Ct.  (1  Sweeney)  311.  App.  463,  28  N.  E.  107;   Hinsdale  v. 

B40  See  Miller  v.  White,  80  111.  580.  White,  6  Hill   (N.  Y.)   507. 

BsoSmusch  V.  Kohn,  22  Misc.  344,  5"  Abrams     v.    Watson,    59    Ala. 

49  N.  Y.  Supp.  176.  524;    Schuricht  v.  Broad  well,  4  Mo. 

B51.  552See  ante,  §  242  a,  note  113;  App.  160;   Keating  v.  Springer,  146 

§  255,  note  24.  HI-  481,  34  N.  E.  805,  22  L.  R.  A.  544, 

553  Norwood  V.  Kirby's  Adm'r,  70  37  Am.  St.  Rep.  175. 

Ala.    397-    Nemetty    v.    Naylor,    100  see  Marsteller    v.    Marsteller,    132 

N.  Y.  562.  3  N.  E.  497.  Pa.  517,  19  Atl.  344,  19  Am.  St.  Rep. 

6B4Belsbaw  v.  Moses,  49  Ala.  283;  C04. 

Ullman  v.  Herzberg,  91  Ala.  458,   8  ■•■■^  See    2    Black,    Judgments,    §§ 

So.  408,  11  L.  R.  A.  619,  24  Am.  St.  613,  663. 

L.  and  Ten.  114. 


IS  10  SUMMARY  PROCEEDINGS.  §  286 

tciice  of  the  relation  of  landlord  and  tenant  between  the  partie.s,^'* 
but  in  view  of  the  fact  that,  as  we  have  seen,  the  procecdin<;s 
will  in  some  cases  lie  even  though  such  relation  does  not  existj'^so 
it  would  be  perhaps  more  strictly  correct  to  say  that  it  is  con- 
clusive of  the  existence  of  that  relation,  or  of  such  other  rela- 
tion as  will,  under  the  statute,  justify  the  proceeding.^oo  A 
judgment  for  the  plaintiff  is  conclusive  as  to  the  fact  of  the 
defendant's  possession  of  the  premises  at  the  time  of  its  rendi- 
tion and  the  plaintiff's  right  to  possession.5<5i  It  is  also  said  to  be 
conclusive  of  the  validity  of  the  lease,562  but  as  to  this,  some  ques- 
tion might  be  raised,  it  seems,  since  the  fact  that  a  lease  is  invalid 
would  not,  ordinarily,  it  is  conceived,  preclude  a  summary  pro- 
ceeding by  the  landlord  to  recover  possession.'^sa 

658  Harvin  v.  Blackman,  112  La.  ceo  See  ante,  §  273  a  (1). 
24,  36  So.  213;  Brown  v.  City  of  New  ceo  a  judgment  for  plaintiff  in  a 
York,  66  N.  Y.  385;  Reich  v.  Coch-  proceeding  by  the  original  lessor 
ran,  151  N.  Y.  122,  45  N.  E.  367,  37  against  an  undertenant  would  not 
L.  R.  A.  805,  56  Am.  St.  Rep.  607;  be  conclusive  that  the  latter  is  a 
Rosenquest  v.  Noble,  21  App.  Div.  tenant  of  the  plaintiff.  See  La 
583,  48  N.  Y.  Supp.  398.  So  in  Rich-  Farge  v.  Park,  1  Edm.  Sel.  Cas.  (N. 
mond  V.  Stable,  48  Conn.  22,  it  is  de-  Y.)  223.  Nor  would  the  judgment 
cided  that  a  judgment  for  plaintiff  be  conclusive  of  this  relation  when 
in  such  proceeding  is  conclusive  rendered  in  favor  of  a  subsequent 
that  the  relation  of  landlord  and  lessee,  as  being  entitled  to  posses- 
tenant  exists,  so  that  the  possession  sion,  so  as  to  authorize  the  latter 
of  the  defendant  cannot  have  been  to  recover  in  use  and  occupation, 
adverse.  In  Reich  v.  Cochran,  151  sei  Western  Book  &  Stationery  Co. 
N.  Y.  122,  45  N.  E.  367,  37  L.  R.  A.  v.  Jevne,  179  111.  71,  53  N.  E.  565; 
805,  56  Am.  St.  Rep.  607,  it  is  de-  Brown  v.  City  of  New  York,  66  N. 
cided  that  a  judgment  for  plaintiff  Y.  385;  Reich  v.  Cochran,  151  N.  Y. 
in  the  proceeding  precludes  a  sub-  122,  45  N.  E.  367,  37  L.  R.  A.  805,  56 
sequent  showing  by  defendant  that  Am.  St.  Rep.  607.  But  see  McWil- 
the  alleged  lease  to  him  was  merely  Hams  v.  King,  32  N.  J.  Law,  21,  con- 
part  of  a  proceeding  to  secure  a  tra,  construing  a  statute, 
usurious  loan  to  him  by  the  lessor,  662  Harvin  v.  Blackman,  112  La. 
that  is,  the  judgment  is  conclusive  24.  36  So.  213;  Reich  v.  Cochran, 
that  the  defendant  held  under  a  151  N.  Y.  122,  45  N.  E.  367,  37  L. 
lease.  And  in  McCotter  v.  Flynn,  R.  A.  805,  56  Am.  St.  Rep.  607;  Mul- 
30  Misc.  119.  61  N.  Y.  Supp.  786,  it  ligan  v.  Cox,  23  Misc.  695,  52  N.  Y. 
is  decided  that  the  judgment  in  a  Supp.  Ill;  Meyerhoffer  v.  Baker, 
summary  proceeding  based  on  the  121  App.  Div.  797,  106  N.  Y.  Supp. 
nonpayment    of    rent    is    conclusive  718. 

that    there    had    been    no    previous  563  See  ante,  §  273  a  (3).     In  Bol- 

surrender.  ler  v.   City  of  New  York,  40  N.  Y. 


*  287  EFFECT  AS  TERMINATING  TENANCY.  1811 

A  judgment  for  plaintiff  in  a  proceeding  to  recover  possession 
on  the  ground  of  nonpayment  of  rent  is  conclusive,  it  has  been 
decided,  as  to  the  fact  that  some  rent  is  due,  though  not  as  to  the 
amount,^-  and  a  judgment  for  defendant  therein  is  eoncluswe 
that  no  rent  is  due,  if  it  is  based  on  a  finding  to  that  effect.-'*'^ 
A  judgment  for  plaintiff  in  such  a  proceeding,  based  on  an 
allegation  of  an  assignment  of  the  lease  to  the  defendant,  and 
nonpayment  of  rent  by  him,  has  been  regarded  as  conclusive  of 
his  lial)ility,  in  a  subsequent  action  for  rent,  as  an  assignee  of  the 

lease  ^^'' 

In  some  jurisdictions  the  doctrine  prevails  that  where  a  judg- 
ment might  have  been  based  on  any  one  of  two  or  more  distinct 
facts,  and  it  does  not  appear  upon  which  it  was  actually  based 
the  person  asserting  it  as  an  estoppel  has  the  burden  ot 
showing  upon  which  it  was  based,-^«^  and  this  doctrine  has  been 
applied  in  the  case  of  a  judgment  in  a  summary  proceeding 
In  other  jurisdictions  the  view  is  taken  that  a  judgment  is  to  be 
presumed,  in  the  absence  of  evidence  to  the  contrary,  to  have 
settled  all  the  issues  involved  in  favor  of  the  successful  party. 

§  287.    Effect  of  proceeding  as  terminating  tenancy. 

A  jud-ment  for  the  plaintiff  against  a  tenant  holding  over 
establishes  that  the  tenancy  has  already  come  to  an  end,  and 
consequently  the  question  whether  the  judgment  terminates  the 
tenancy  cannot  arise.  When  the  proceeding  is  based,  however, 
on  the  nonpayment  of  rent,  or  breach  of  other  covenant,  the  ques- 
tion whether  a  judgment  for  recovery  of  possession  will  termi- 

Super.  Ct.   (8  Jones  &  S.)    523.  it  is  565  white  v.   Coatsworth,   6  N.   Y. 

J     ■ir.A    fv.'nt   n    iudffment  for  plain-  (2   Seld.)   137. 

S'is  LrconCu^wrot  t.e  vaU.U.  -Grarton  v.   Br„ham,   70   Hun, 

„,  t.e  .ease  .n  a  .u.se,ue.t  action  ^^l^^-^^^-^^^^^^,  ,  ,,, 

'"JBrown  v.  City  ol  New  York.  6G  ».« McSloy  v.  Kyan,  27  Mich^  110; 
N  Y  385  (judgment  by  default);  Lewis  v.  Ocean  Nav.  4  Pier  Co.,  125 
Jarvls  TvrJ.  69  N.  Y.  143;  Ros-  N.  Y.  341,  26  N.  E.  301  The  case 
»l,  V  Noble  21  App.  DlT.  583.  ot  Yonkers  &  New  York  Fire  Ins, 
TTy  sup  398  Stel  V.  Cream-  Co.  v.  B.sbop,  1  Daly  (N.  Y.)  440.  Is 
er  69  App  Div  296.  74  N.  Y.  Supp.  apparently  contra,  and  must  be  tb- 
l!69-  Harley  v.  McAulltf.  26  Mo.  525.  gardcrt  as  oyerniled. 
lee  Lewy   V.   woltman,   110   N.   Y.       -.See  2  Black.  Judgments,  5  629. 

Supp.  256. 


IS  12  SUMMARY  PROCEEDINGS.  §  287 

nate  all  rights  and  liabilities  under  the  lease  may  possibly  arise. 
The  recovery  of  a  judgment  of  dispossession  in  such  a  case  would 
presumably,  in  the  absence  of  any  express  provision  on  the  sub- 
ject, terminate  the  tenancy,  especially  after  the  issue  of  execution 
on  the  judgment.^^^ 

In  New  York  it  was  originally  provided  by  statute  that  the 
issue  of  a  warrant  for  the  removal  of  a  tenant  should  cancel  the 
agreement  for  the  use  of  the  premises  and  annul  the  relation  of 
landlord  and  tenant,  and  it  was  held  that,  in  the  case  of  a  pro- 
ceeding based  on  the  nonpayment  of  rent,  the  warrant  related 
back  to  the  time  of  the  default  for  which  the  possession  was 
awarded,  and  that  no  rent  thereafter  accruing  could  be  recovered, 
though  the  landlord  could  recover  the  rent,  for  nonpayment  of 
which  the  proceeding  was  instituted.^'^i  Subsequently  there  was 
an  addition  to  the  statute  in  the  form  of  a  provision  that  the 
issue  of  the  warrant  should  not  prevent  the  recovery  by  the  land- 
lord of  any  sum  of  money  which  was,  at  the  time  when  the 
precept  was  issued,  payable  as  rent;  or  the  reasonable  value  of 
the  use  and  occupation  for  any  period  of  time  as  to  rent  for 
which  there  was  no  agreement.^'^^  xhe  effect  of  the  last  clause 
of  the  statute  is  to  authorize  the  recovery  of  the  value  of  the  use 
and  occupation  for  any  period  or  fractional  period  during  which 
the  tenant  remains  in  possession  after  the  date  of  dissolution 
of  the  tenancy.^^3  If  the  rent  is  payable  in  advance,  the  fact 
that  the  tenant  is  dispossessed  during  a  particular  rent  period 
does  not  affect  the  right  of  the  landlord  to  recover  the  whole  rent 
for  that  period.5^* 

In  view  of  the  above  provision  of  the  New  York  statute,  termi- 
nating the  tenancy  upon  the  issue  of  the  warrant  of  removal,  the 

570  In  Johannes  v.  Kielgast,  27  111.  lander  v.  Nile  Tobacco  Works,  21 
App.  576,  the  effect  of  a  judgment  Misc.  339,  47  N.  Y.  Supp.  188.  See 
of  dispossession  was  stated  to  be  to  Davison  v.  Donadi,  2  E.  D.  Smith 
terminate    the     tenancy,     and     this  (N.  Y.)   121. 

statement    is    adopted    in    Snell    v.  574  Kahn  v.  Tobias,  16  Misc.  83,  37 

Owen,  63  111.  App.  377.  N    Y.   Supp.  632;    Martin  v.  Lee,  29 

571  Hinsdale  v.  White,  6  Hill  (N.  Misc.  333,  60  N.  Y.  Supp.  515;  Bem- 
i.)  507;  Crane  v.  Hardman,  4  E.  D.  stein  v.  Heinemann,  1^3  Misc.  464,  51 
Smith  (N.  Y.)   339.  N.  Y.  Supp.  467.     Compare  Rigland- 

572  Code   Civ.    Proc.    §    2253.  er  v.  Nile  Tobacco  Works,  21  Misc. 
573Fursman   v.    Pennace,    15    Civ.    339,  47  N.  Y.  Supp.  188,  and  ante,  § 

Proc.  R.  340,  2  N.  Y.  Supp.  339;  Rig-    182  j,  at  notes  955-955  c. 


c  287  EFFECT  AS  TERMINATING  TENANCY.  1813 

tenancy  is  not,  it  has  been  held,  restored  by  the  subsequent  re ver- 
sal  of  the  order  of  dispossession,  unless,  it  seems,  the  tenanl 
invokes  the  discretionary  power  of  the  court  to  award  to  him 
restitution  of  possession.^'^^ 

Although  the  statute  expressly  provides  that  the  relation  ot 
tenancy  shall  be  annulled  by  the  issue  of  the  warrant,  it  has  been 
decided  that  if  the  warrant  is  not  actually  executed,  and  the 
tenant  accepts  the  rent,  this  shows  a  consent  by  the  landlord 
to  "waive"  his  rights  in  this  regard,  and  the  tenancy  J^  still  to 
be  considered  in  existence  upon  the  same  terms  as  before. 
This  provision  has  been  held  to  apply  to  a  case  in  which  the  war- 
rant is  not  actually  issued  because,  owing  to  the  tenant  s  relin- 
quishment  of  possession,  its  issue  is  unnecessary,  and  consequently 
the  liability  for  rent  then  ceases.^^^  The  issuance  of  the  warrant, 
it  has  been  decided,  terminates  not  only  the  original  tenancy, 
but  also  the  subtenancies.s^s 

The  New  York  statute,  providing  that  the  issue  of  the  warrant 
shall  cancel  the  agreement  for  the  use  of  the  premises  and  ter- 
minate the  relation  of  landlord  and  tenant,  does  not  affect  the 
existence  of  covenants,  not  a  part  of  the  agreement  for  the  use 
of  the  premises,  though  contained  in  the  same  instrument,  which 
are  designed  to  furnish  security  to  the  lessors  against  the  eftect 
of  dispossession,^^«  and  consequently  it  may  be  validly  stipulated 
that  upon  dispossession  by  summary  proceedings,  the  landlord 
may  relet  for  account  of  the  tenant,  and  that  he  shall  remain 
liable  for  any  disparity  between  the  rent  so  obtained  and  the 
amount  so  reserved  in  the  lease.^so    But  a  provision  that  in  caso 

5T5Niles  V  Iroquois  Realty  Co..  57  2251  provides  that  the  warrant  shall 
Misc.  443,  109  N.  Y.  Supp.  712.  direct  the  removal  of  "air  tenants^ 

5T6Voorhiesv.  Cummings,  42APP.  "« Hall  v.  Gould  13  J.  Y-  (3 
Div.  26a.  58  N.  Y.  Supp.  1120.  Kern.)    127;   Michaels  v.  Fishel    169 

5TT  Gallagher  v.  Reilly,  16  Daly.  N.  Y.  381.  62  N.  E.  42  ;  Longobardi 
227  10  N  Y.  Supp.  536;  Riglander  v.  v.  Yuliano,  33  Misc.  472.  67  N.  Y. 
Nile  Tobacco  Works.  21  Misc.  339.  Supp.  902;  Franceshini  v.  Chaucer. 
47  N  Y.  Supp.  188;  Baldwin  v.  Thib-    110  N.  Y.  Supp.  775.  _  ^^    ^ 

adeau,   28  Abb.   N.  C.  14.   17   N.  Y.       5so  Hackett  v.  Richards    13  N.  Y^ 
^532  (3  Kern.)  138;  Lewis  v.  Stafford,  24 

7t8  Ash  V    Purnell,  26  Abb.  N.   C.    Misc.  717,  53  N.  Y.  Supp.  801;  James 
92    16  Daly.  189.  11  N.  Y.  Supp.  54.    v.    Rubino,    30   Misc.    452,    62   N.    Y. 
the  court  making  special   reference    Supp.  468.     See  ante.  §  182  j. 
to  the  fact  that  Code  Civ.  Proc.  § 


1814  SUMMARY  PROCEEDINGS.  §  288 

of  "re-entry"  the  lessor  may  so  relet  in  behalf  of  the  tenant, 
inserted  in  a  lease  containing  an  express  clause  of  re-entry  for 
breach  of  covenants,  has  been  held  not  to  authorize  him  to  so 
relet  upon  recovery  of  possession  by  summary  proceeding.^^^ 

It  has  been  decided  in  several  cases  that  if,  after  the  service 
of  the  summons  or  precept,  in  a  proceeding  based  on  the  non- 
payment of  rent,  the  tenant  relinquishes  possession  of  the  prem- 
ises in  compliance  therewith,  the  relation  of  tenancy  is  termi- 
nated.^^2  This  may,  perhaps,  be  regarded  as  a  case  of  surrender 
by  operation  of  law,  the  prior  demand  for  possession  being  equiv- 
alent to  a  subsequent  acceptance  thereof.^^s  tj^^  eases  do  not 
discuss  the  question  from  the  standpoint  of  principle. 

§  288.    Injunction  against  proceeding. 

A  proceeding  by  a  landlord  to  recover  possession,  or  execution 
of  a  judgment  therein  in  his  favor,  will  not  be  restrained  by  a 
court  of  equity  on  a  ground  which  might  be  asserted  in  the  pro- 
ceeding itself  as  a  defense  thereto,^^^  nor  on  the  ground  of  error 
in  the  proceeding.'*^^  An  injunction  wuU  issue,  it  seems,  to  relieve 
from  fraud  in  such  a  proceeding,586  or  to  allow  the  assertion  of 

681  Michaels  v.   Fishel,   169   N.    Y.  wick  v.  Spargur,  1  Civ.  Proc.  R.   (N. 

381,  62  N.  E.  425,  57  L.  R.  A.  317.  Y.)   422,  and  note;   Natkins  v.  Wet- 

A    different   view   was    taken    wlien  terer,    76    App.    Div.    93,    78    N.    Y. 

the   lessor   was   given   the   right   to  Supp.  713;  Appeal  of  Pittsburg  &  A. 

enter  the  said  premises  on  default,  Droveyard  Co.,  123  Pa.  250,  16  Atl. 

"either  by  process  of  law  or  other-  625;    Vanarsdalen    v.    Whitaker,    10 

wise,"  and  to  relet.     Baylies  v.  Ing-  Phila.   (Pa.)  153. 

ram,  84  App.  Div.  360,  82  N.  Y.  Supp.  585  McLean     v.     Carroll,     6     Rob. 

891.  (La.)     43;     Leonard    v.    McCool,    3 

s82Ash  v.    Purnell,   26  Abb.  N.   C.  Strob.  Eq.    (S.  C.)   44. 

92,  16  Daly,  189,  11  N.  Y.  Supp.  54;  ssc  in    Huff    v.    Markham,    71    Ga. 

Baldwin  v.  Thibadeau,  28  Abb.  N.  C.  555,  it  is  said  that  it  will  issue  only 

14,  17  N.  Y.  Supp.  532;  Gallagher  v.  in   extraordinary   cases   and  to  pre- 

Reilly,  10  N.  Y.  Supp.  536.  vent   fraud   and   irreparable   injury. 

583  See  ante,  §  190  c  (5).  In   New  York   it  was  held   that  an 

684  Wingo  v.  Hardy,  94  Ala.  184,  10  injunction  will  issue  to  relieve  the 

So.  659,  16  L.  R.  A.  813,  33  Am.  St.  tenant   from   fraud   by  the   landlord 

Rep.  105;  Brown  v.  Watson,  115  Ga.  in    such    a    proceeding.     See    cases 

502,  41  S.  B.  998  (though  defendant  cited  14  N.  Y.  Ann.   Cas.,  at  p.  155, 

unable  by  reason  of  poverty  to  de-  note  to  Weber  v.  Refers.     See,  also, 

fend    at   law) ;    Curd    v.    Farrar,    47  Asbyll  v.  Haims,  38  Misc.  578,  78  N. 

Iowa,   504,  29  Am.  Rep.  492;    Chad-  Y.  Supp.  64.     That  fraud  or  mistake 


289  WRONGFUL  INSTITUTION.  18'15 

equities  which  could  not  be  asserted  in  the  proceeding  itself.^^^ 
In  New  York  it  is  held  that  an  injunction  will  issue  to  restrain 
the  execution  of  a  writ  of  dispossession  if  the  justice  is  foj  f^^ 
reason  without  jurisdiction,588  and  in  Pennsylvania  the  fact  that 
complicated  issues  of  law  are  involved,  not  proper  for  the  decision 
of  the  inferior  tribunal  having  jurisdiction  of  the  proceeding,  has 
been  regarded  as  ground  for  an  injunction.^sa 

There  is  a  decision  to  the  effect  that  a  grantee  of  the  reversion 
may  have  an  injunction  against  a  proceeding  by  the  original 
lessor,  who  is  insolvent.^^^o 

§  289.     Liability  for  wrongful  institution  of  proceeding. 

The  general  rule  is  that,  in  order  to  make  one  liable  for  the  in- 
stitution of  a  civil  suit,  as  of  a  criminal  prosecution,  it  must 
have  been  with  malice  and  without  probable  cause,^^!  and,  under 
this  rule  a  landlord  would  not  be  liable  to  his  tenant  for  damage 
to  the  latter  arising  from  his  wrongful  institution  of  a  summary 
proceeding  to  recover  possession,  unless  it  was  instituted  mali- 
ciously and  without  probable  cause.  There  are  decisions  to  this 
effect  ^92  but  there  are  also  decisions  to  the  effect  that,  even  apart 
from  statute,  the  tenant,  if  improperly  deprived  of  possession  by 
force  of  such  a  proceeding,  may  recover  damages  against  the 
landlord,  without  any  suggestion  that  malice  and  probable  cause 
must  exist.^^^    In  any  case,  no  doubt,  if  the  proceedings  are  m- 

would  be  ground  for  an  injunction  592Melson  v.  Dickson.  63  Ga.  682. 
is  recognized  in  Denny  v.  Fron-  36  Am.  Rep.  128;  Porter  v  Johnson, 
heiser.  207  Pa.  174.  56  Atl.  406.  96    Ga.    145.    23    S^,  E.    123;    Hegan 

«8TPetsch  V.  Biggs,  31  Minn.  392.  Mantel  Co.  v.  Cooks  Adm  r  22  Ky. 
18  N  W  101;  Webb  V.  King,  21  App.  Law  Rep.  427,  57  S.  W.  929.  See 
D  C  141  (semble).  See  14  N.  Y.  Block  v.  Bonnet,  28  La.  Ann.  540 
Ann  '  Cas  .  at  p.  156,  and  also  note  In  Juergen  v.  Allegheny  County.  204 
in  i'n  Y  Civ.  Proc.  R.  at  p.  425.  Pa.  501,  54  Atl.  281,  it  was  held  that 
588  See  cases  cited  14  N.  Y.  Ann.  the  tenant  could  not  maintain  an 
^g    ^t  p   153  action   for  damages  for  the  reason, 

580Kaufmann  v.  Liggett,  209  Pa.  it  seems,  that  he  was  protected 
87  58  Atl  129  67  L.  R.  A.  353,  103  against  a  wrongful  ouster  owing  to 
Am    St    Rep.  '988.  the    fact   that   the   statute   provides 

590  Texas  Land  Co.  v.  Turman,  53  for  a  jury  trial  in  the  summary  pro- 
Tex    619  ceeding. 

59;  See'  authorities  cited  19  Am.  ^93  See  Wacholz  v.  Griesgraber  70 
&  Eng.  Enc.  Law  (2d  Ed.)   655,  673.    Minn.  220.  73  N.  W.  7;   Richardson 


1816  SUMMARY  PROCEEDINGS.  §  289 

valid  as  to  the  person  ousted  thereunder,  for  lack  of  jurisdiction 
of  the  subject-matter  of  the  person,  the  judgment  is  no  protection 
to  the  landlord,  or  to  the  persons  undertaking  to  execute  it,  and 
they  are  liable  in  damages  as  trespassers.'^^* 

Occasionally  the  statute  expressly  provides  that  if  a  judgment 
in  favor  of  the  landlord  is  reversed  on  appeal,  the  tenant  shall 
be  entitled  to  recover  for  any  damage  caused  him  by  such  pro- 
ceeding ;f595  and  under  such  a  statute,  it  has  been  held,  the  grounds 
of  reversal  are  immaterial,  and  cannot  be  proven  in  defense  to 
the  action  for  damages.^'^^  Such  a  statute  has  been  regarded 
as  authorizing  the  tenant  either  to  demand  an  issue  to  ascertain 
the  damages  on  the  trial  on  appeal,  or  to  bring  a  separate  action 
for  damages.5»7  Where  the  statute  expressly  provided  that  the 
landlord  should  remain  liable  in  trespass  for  any  unlawful  pro- 
ceeding under  the  statute ;  and  also  that  either  the  landlord  or  the 
tenant  might,  in  subsequent  legal  proceedings,  deny  or  disprove 
the  facts  on  which  the  decision  was  based,  the  landlord  was  held 
liable  for  a  dispossession  under  an  erroneous  judgment,  this 
latter  protecting  the  justice  and  constable,  but  not  the  land- 
lord.^98 

It  has  been  held  that  the  tenant  may  recover  the  pecuniary 
loss  caused  by  his  dispossession,^^^  and  nothing  more,  in  the  absence 
of  malice  or  oppression.«o°  He  has  also  been  allowed  to  recover 
the  value  of  the  building  erected  by  him  and  destroyed  by  the 
landlord  on  obtaining  possession,  and  the  amount  of  a  sum  of 

V.   Callihan,   73   Miss.   4,  19   So.   95.  bos  McWilliams  v.   King,  32   N.   J. 

The  facts  in  these  cases  were,  how-  Law,  21.     But  it  was  held  that  the 

ever,  it  seems,  such  as  to  show  both  relinquishment  of  possession  by  the 

malice  and  lack   of  probable  cause,  tenant  on  a  statement  by  the  officer 

504  McCoy  V.  Hyde,  8  Cow.  (N.  Y.)  that  if  he  did  not  do  so  the  officer 

68;    Croft  v.  King,  8  Daly   (N.  Y.)  would  return  the  next  day  and  put 

265;  Colt  V.  Eves,  12  Conn.  243.  him  out  did  not  involve  any  liability 

595  See  New  York  Code  Civ.  Proc.  in  trespass  on  the  part  of  the  land- 

§  2263;  North  Carolina  Revisal  1905,  lord,   the   officer  not  having  at   the 

§     2010;     Pennsylvania,     Pepper    &  time  any  warrant  to  dispossess  the 

Lewis'  Dig.  Laws,  "Landlord  &  Ten-  tenant.     Coe    v.    Haines,    44    N.    J. 

ant,"  §  28.  Law,  134. 

5f«  Hayden     v.     Florence     Sewing  599  Quinn  v.  McCarty,  33  Leg.  Int. 

Mach.  Co.,  54  N.  Y.  221.  (Pa.)    312. 

597  Burwell    v.    Brodie,    134    N.    C.  Bf'o  Koenig    v.     Bauer,     1     Brewst. 

540,  47  S.  E.  47.  (Pa.)    304. 


§  289 


WRONGFUL  INSTITUTION. 


1817 


money  kept  on  the  premises  and  lost  in  the  course  of  the  tenant's 
removalj^oi  and  also  the  value  of  the  unexpired  term,  which 
latter  is,  ordinarily,  to  be  ascertained  by  deducting  the  rent  re- 
served from  the  rental  value  of  the  premises.^^^  tj^^  landlord 
has  been  held  liable  for  injuries  to  the  tenant's  goods  and  loss 
of  fruit  and  vegetables  caused  by  the  latter 's  dispossession,^"^ 
and  a  claim  for  damages  by  reason  of  the  tenant's  deprivation 
of  his  shelter  and  support,  and  distress  in  body  and  mind,  and 
mortification  and  loss  of  employment,  has  been  upheld.^"^ 

The  landlord,  by  wrongfully  procuring  the  dispossession  of  the 
tenant,  does  not  lose  his  right  to  credits  which  he  would  other- 
wise have,  such  as  those  for  advances  and  supplies.^*^^ 


601  Eten  V.  Luyster,  60  N.  Y.  252. 

602  See  Small  v.  Clark,  97  Me.  304, 
54  Atl.  758;  Woods  v.  Kernan,  57 
Hun,  215,  10  N.  Y.  Supp.  654.  In 
Wilkinson  v.  Stanley  (Tex.  Civ. 
App.)  43  S.  W.  606,  it  was  held  that 
if  the  tenant  was  wron^ully  dis- 
possessed by  sequestration  proceed- 
ings \t  the  suit  of  the  landlord,  the 
value  of  the  unexpired  term  was  not 


the  measure  of  damages,  but  that 
his  damages  were  the  same  as  In 
any  case  of  wrongful  deprivation  of 
possession  by  the  landlord. 

603  Woods  v.  Kernan,  57  Hun,  215, 
10  N.  Y.  Supp.  654. 

604Burwell  v.  Brodie,  134  N.  C. 
540,  47  S.  E.  47. 

«05Burwell  v.  Brodie,  134  N.  C. 
540,  47  S.  E.  47. 


CHAPTER  XXIX. 

ACTIONS  FOR  RENT. 

§  290.     At  common  law. 

a.  Debt. 

b.  Covenant. 

c.  Assumpsit. 

d.  Account. 

291.  Under  the  code  procedure. 

292.  Proceedings  in  equity. 

293.  Parties  plaintiff. 

a.  Persons  beneficially  Interested. 

b.  Transferees. 

c.  Persons  jointly  entitled. 

d.  On  death  of  person  entitled. 

e.  Statutory  provisions. 

294.  Parties  defendant. 

a.  Joint  or  several  liability. 

b.  On  assignment  of  leasehold. 

c.  On  death  of  person  liable. 

d.  Persons  asserting  title. 

e.  Guarantors  and  sureties. 

295.  Pleading. 

296.  Set-off,  recoupment,  and  counterclaim. 

297.  Limitations. 

298.  No  prior  demand  necessary. 

299.  Joinder  of  causes  of  action  and  defenses. 

300.  Actions  for  successive  installments. 

301.  Stipulations  for  attorney's  fees. 

§  290.    At  common  law. 

a.  Debt.  At  common  law,  when  the  person  to  whom  rent  was 
payable  had  a  freehold  interest  in  the  rent,  the  nonpayment 
thereof  on  demand  was  considered  a  disseisin  of  the  rent,  and 
consequently  the  real  action  of  novel  disseisin  was  the  proper 


§  290  DEBT.  1819 

form  of  proceeding  by  which  to  recover  it.*  By  statute,  however, 
an  exception  to  this  rule  was  made  in  favor  of  the  executors  and 
administrators  of  tenants  in  fee  of  rents,  who  were  authorized 
to  sue  in  debt  for  arrears  of  rent  due  to  their  decedents.^  Since 
the  abolition  of  real  actions,  it  has,  in  England,  been  decided  that 
an  action  of  debt,  or  its  equivalent,  will  lie  in  favor  of  the  owner 
of  a  rent  charge  in  fee,  on  the  theory  that  such  an  action  did  not 
lie  at  common  law  owing  merely  to  the  fact  that  the  higher 
remedy  by  real  action  existed.^'  ^ 

In  the  case  of  a  rent  for  life,  whether  rent  reserved  on.  a  lease 
for  life  or  a  rent  charge  granted  for  life,  the  tenant  of  the  land 
was  at  common  law  regarded  as  personally  liable  for  the  rent,  and, 
while  this  personal  liability  could  not  be  enforced  during  the 
existence  of  the  life  interest  in  the  rent,  because  temporarily 
superseded  by  the  existence  of  the  "real"  obligation  on  the  part 
of  the  land,  upon  the  termination  of  such  real  obligation  by  the 
termination  of  the  life  interest  the  tenant's  personal  obligation 
became  enforcible  by  the  owner  of  the  rent,  or  his  personal  rep- 
resentatives.^ This  was  changed,  however,  by  the  statute  of  8 
Anne,  c.  14,  §  4,  so  far  as  concerns  leases  for  life,^  and  there 
are,  in  several  states,  similar  statutory  provisions  empowering 
one  having  rent  due  upon  a  lease  for  life  to  sue  thereon  as  if  the 
lease  were  for  years.'^ 

1  Litt.    §§   233-240.  law,   Imposed   on  the  land   alone,  a 

2  32  Hen.  VIII,  c.  37  (A.  D.  1540) ;  "real  obligation,"  and  hence  the 
Co.  Litt.  162  a;  Harrison,  Chief  mere  abolition  of  real  actions  could 
Rents,  180.  A  tenant  of  land  in  fee  not  make  it  a  personal  obligation, 
simple  who  has  leased  for  years  has  See  the  learned  review  of  the  sub- 
been  held  not  to  be  a  tenant  in  fee  ject  by  T.  Cyprian  Williams,  Esq., 
of  the  rent  reserved  on  the  lease  for  13  Law  Quart.  Rev.  288,  and  the 
years,  so  that  the  statute  would  au-  references  therein  to  Ognel's  Case, 
thorize   an    action    of   debt    for   the  4  Coke,  48  b. 

rent   by   his   executors.     Prescott   v.  s  Ognel's  Case,  4  Coke,  49  a;   Gil- 
Boucher,  3  Barn.  &  Adol.  849.  bert.  Rents,  98;  Co.  Litt.  162  a,  Har- 
3,*  Thomas   v.    Sylvester,   Li.   R.    8  grave's   note;    15    Law   Quart.   Rev 
Q.    B.    368;    Christie    v.    Barker,    53  291. 

Law  J.  Q.  B.   537;    Searle  v.  Cooke,  e  See  Webb  v.  Jiggs,  4  Maule  &  S 

43  Ch.  Div.  519.     See  In  re  Herbage  113. 

Rents    [1896]    2    Ch.    811.     The    cor-  7  Delaware  Rev.  Cede  1903,  p.  867' 

rectness  of  these  decisions  has  been  Tnrliana,    Burns'    Ann.    St.    1901,    § 

questioned   on   the   ground   that   the  7100;  Missouri  Rev.  St.  1899,  §  4101; 

duty  of  paying  rent  was,  at  common  New  Jersey,  2  Gen.  St.  p.  1915,  §  1; 


1820  ACTIONS  FOR  RENT.  «  290 

The  right  of  one  leasing  for  years  to  sue  for  arrears  of  the 
rent  reserved  in  an  action  of  debt  was  recognized  at  an  early 
date  in  the  history  of  that  section,^  and  that  the  action  is  avail- 
able for  this  purpose  has  never  been  questioned.®  The  action 
will  also  lie  for  rent  reserved  upon  a  tenancy  at  will.io 

The  action  of  debt  is,  as  before  stated,ii  not  based  on  a  contract, 
but  is  rather  a  remedy  for  the  recovery  of  a  specific  sum  in  the 
possession  of  the  defendant  belonging  to  the  plaintiff,  and,  in 
order  to  impose  liability  on  the  tenant  therein,  he  need  not  have 
contracted  to  pay  the  rent  reserved,  he  being  liable  as  having 
obtained  the  profits  of  the  land.  In  other  words,  privity  of  estate, 
as  distinct  from  privity  of  contract,  is  sufficient  to  sustain  the 
right  of  action.i2  Accordingly,  an  assignee  of  the  leasehold 
estate  which  owes  the  rent  is  liable  in  debt  to  the  person  entitled 
to  the  rent,i3  ^nji  ^  transferee  of  the  reversion  may  recover 
therein  against  the  lessee  or  an  assignee  of  the  lessee,^  *  as  may  a 
transferee  of  the  rent  without  the  reversion. ^^  And  if  part  only 
of  the  reversion  is  transferred,  the  transferee  may  recover  his 
proportion  of  the  rent  in  an  action  of  debt.^°  Debt  will,  more- 
over, lie  against  the  original  lessee    although  the  latter  has  as- 

New  York  Real   Prop.   Law,   §   191;    125;    McKeon   v.   Whitney,   3   Denio 
South  Carolina  Civ.   Code,  §  2433.        (N.  Y.)   452. 

8  2  Pollock  &  l\Iaitland,  Hist.  Eng.  k  Walker's  Case,  3  Coke,  22  a. 
Law,  209.  Thursby  v.  Plant,  1  Wms.  Saund.  237, 

oLitt.  §§  58.  72;  Co.  Litt  47  b;  1  Lev.  259;  Ards  v.  Watkin, 
Gilbert,  Rents,  93;  Trapnall  v.  Mer-  Cro.  Eliz.  637,  C51;  Rowland  v.  Cof- 
rick,  21  Ark.  503;  Rowland  v.  Coffin,  fin.  29  Mass.  (12  Pick.)  125;  Patten 
26  Mass.  (9  Pick.)  52;  Id.,  29  Mass.  v.  Deshon,  67  Mass.  (1  Gray)  325; 
(12  Pick.)  125;  Outtoun  v.  Dulin,  Outtoun  v.  Dulin,  72  Md.  536.  20  Atl. 
72  Md.  536,  20  Atl.  134;  McKeon  v.  134.  The  lessee  and  his  assignee 
Whitney,  3  Denio  (N.  Y.)  452;  Mc-  may,  it  has  been  said,  be  sued  joint- 
Ewen  V.  Joy,  7  Rich.  Law  (S.  C.)  ly.  See  Com.  Dig.,  Dett  (e). 
33;  Elder  v.  Henry,  34  Tenn.  (2  is  Williams  v.  Hay  ward,  1  El.  & 
Sneed)  81.  El.  1040;  Allen  v.  Bryan.  5  Barn.  & 

10  Litt.  §  72.  C.  512;  Ryerson  v.  Quackenbush,  26 

"See  ante,  §  171,  at  note  124.  N.   J.   Law,   236;    Demarest   v.    Wil- 

12  See  ante.  §  171,  at  notes  122,  lard,  8  Cow.  (N.  Y.)  206;  Kendall 
123.  V.  Garland,   59   Mass.   (5  Cush.)    74, 

13  Walker's    Case,    3   Coke,    22    a;    51  Am.  Dec.  44. 

Thursby  x.  Plant,  1  Wms.  Saund.  237.  is  Broom  v.  Hore,  Cro.  Eliz.  633: 
note  (1) ;  Rowland  v.  Coffin,  26  Mass.  Ards  v.  Watkin,  Cro.  Eliz.  637,  651. 
(9  Pick.)  52;  Id.,  29  Mass.  (12  Pick.) 


§  290  I^EBT.  1821 

signed  his  lease,  since  the  lessee  cannot  destroy  the  tenancy  into 
which  he  has  entered  without  the  landlord's  assent.  If,  how- 
ever, the  landlord  accept  the  lessee's  assignee  as  tenant,  expressly, 
or  by  implication,  as  by  receiving  rent  from  him,  he  cannot  there- 
after bring  debt  against  the  original  lessee,  since  he  is  no  longer 
in  privity  of  estate  with  the  latter.^ ^  If  the  lessee's  interest  in 
a  part  of  the  premises  is  assigned  to  another  person,  or  in  dif- 
ferent parts  to  different  persons,  each  of  such  assignees  is  liable 
in  debt,  by  reason  of  privity  of  estate,  for  a  proportional  part  of 
the  rent.^^  The  transferee  of  the  reversion  cannot  bring  debt 
against  the  original  lessee  after  the  latter 's  assignment  of  tlie 
term,  since  there  is,  in  such  case,  neither  privity  of  contract  nor 
of  estate. 1^  And  for  the  same  reason  the  owner  of  the  property 
cannot  bring  debt  against  one  holding  under  a  lease  made  by  a 
stranger  to  the  title.^o 

An  action  of  debt,  if  brought  by  or  against  one  not  a  party 
to  the  original  lease,  as  in  the  case  of  an  action  by  the  transferee 
of  the  lessor  or  against  the  assignee  of  the  lessee,  being  based  on 
privity  of  estate,  was,  at  common  law,  regarded  as  a  "local" 
action,  which  must  be  brought  in  the  county  where  the  land 
lies^i  while,  if  brought  against  the  original  lessee  by  his  lessor, 
it  was  regarded  as  transitory,  as  being  based  on  contract,  and 
might  be  brought  where  the  lessee  was  found  or  where  the  con- 
tract was  made.22 

"Walker's    Case,    3    Coke,    22    a;  Bayly  v.   Briggs,   Latch,   271;    Stev- 

Marsh  v.  Brace,  Cro.  Jac.  334;  Mills  en-on  v.  Lambard,  2  East,  575;  Bar- 

V.   Auriol,   1   H.    Bl.    433;    Auriol    v.  ker  v.  Darner,  Garth.  183;  Whitaker 

Mills,    4    Term   R.    94;    Wadham   v.  v.  Forbes,  L.  R.  10  C.  P.  583;  Brack 

Marlowe,  8  East,  314,  note;   Wall  v.  et   v.    Alvord,    5   Cow.    (N.   Y.)    18; 

Hinds,   70   Mass.    (4   Gray)    256,   64  Lansing  v.  Van  Alstyne,  2  Wend.  (N. 

Am.  Dec.  64;  Bliss  v.  Gardner,  2  111.  Y.)    561,  note. 
App.    (2   Bradw.)    422.  22  y.  b.  38  Hen.  6,  15;  Y.  B.  8  Hen. 

i-^Gamon   v.  Vernon,   2  Lev.   231;  6,  23;   Walker's  Case,  3  Coke,  21  b; 

Curtis  V.   Spitty,  1  Bing.  N.  C.  760;  Bulwer's   Case,   7   Coke,   28   b;    Wey 

Harris  v.   Frank,   52   Miss.   155;    St.  v.  Yally,  6  Mod.  194;  1  Wms.  Saund. 

Louis   Public   Schools   v.   Boatmen's  (Ed.    1871),    notes    to    Thursby    v. 

Ins.  &  Trust  Co.,  5  Mo.  App.  91.  Plant,    306-308;    Bracket   v.   Alvord, 

19  Humble    v.    Glover,    Cro.    Eliz.  5    Cow.     (N.    Y.)     18;    Henwood    v. 

328;    Walker's   Case,   3  Coke,   22   a.  Cheeseman,  3  Serg.  &  R.   (Pa.)   502; 

2oMackey  v.  Robinson,  12  Pa.  170.  Chitty,     Pleading     (7th     Ed.)      282. 

See  post,  §  304,  at  note  20.  The    statement    that    the    action    of 

21  Bord  v.  Cudmore,  Cro.  Car.  183;  debt,    when    brought   by   the   lessor 


1822  ACTIONS  FOR  RENT.  J  290 

The  action  of  debt  for  rent,  involving  a  statement  of  the  demise 
under  which  the  rent  was  reserved,  the  amount  of  the  rent,  and 
the  period  at  which  it  became  due,  was  to  a  great  extent  super- 
seded in  England,  while  yet  the  distinctive  forms  of  action  ex- 
isted, by  the  action  of  debt  for  use  and  occupation,  which,  unlike 
the  action  of  assumpsit  for  use  and  occupation,23  was  not  based 
on  statute,^'*  but,  like  the  latter  action,  necessitated  no  allega- 
tion by  the  plaintiff  of  any  formal  demise  of  the  premises  or  reser- 
vation of  any  rent,  it  being  sufficient  to  state  that  the  defendant 
was  indebted  to  the  plaintiff  for  the  use  and  occupation  of  certain 
premises  belonging  to  the  plaintiff  and  occupied  by  the  defen- 
dant by  his  request.25  This  action  was  always  regarded  as  trans- 
itory.26 

b.  Covenant.  On  the  lessee's  covenant  to  pay  rent  ordinarily 
jontained  in  the  instrument  of  lease,  an  action  of  covenant  may 
be  brought  at  common  law,^'^  and,  in  jurisdictions  where  such 
form  of  action  is  abolished,  an  equivalent  action  to  enforce  the 
lessee's  liability  on  his  covenant  will  lie.  To  support  the  com- 
mon-law action  of  covenant,  there  must  be  a  technical  covenant 
by  the  lessee,  that  is,  the  lease  must  be  sealed  by  him,^^  since 

against  the  lessee,  is  based  on  con-  20  Elger  v.  Marsden,  5  Taunt.  25; 
tract,  involves  a  use  of  the  term  King  v.  Fraser,  6  East,  348. 
"contract"  in  a  sense  diiterent  from  27  Thursby  v.  Plant,  1  Wms. 
that  in  which  it  is  now  ordinarily  Saund.  237,  1  Lev.  259;  Marsh  v. 
used.  See  ante,  §  157  a  (1),  note  Brace,  Cro.  Jac.  334;  Cross  v.  U.  S., 
294.  81  U.  S.  (14  Wall.)  479,  20  Law.  Ed. 

The  action  of  debt  was  regarded  721;  Greenleaf  v.  Allen,  127  Mass. 
as  transitory  if  brought  by  the  les-  248;  Union  Pac.  R.  Co.  v.  Chicago, 
sor  against  the  lessee's  executor  for  R.  I.  &  p.  R.  Co.,  164  111.  88,  45  N. 
rent  due  in  the  lessee's  time,  while  E.  488;  Russell  v.  Fabyan,  28  N.  H. 
local  if  brought  against  such  execu-  543,  61  Am.  Dec.  629;  Taylor  v.  De 
tor  for  rent  due  in  the  executor's  Bus,  31  Ohio  St.  468;  Outtoun  v. 
time.  Bolton  v.  Cannon,  1  Vent  Dulin,  72  Md.  536,  20  Atl.  134. 
271;  Cormel  v.  Lisset,  2  Lev.  80.  28  Johnson   v.   Muzzy,   45   Vt.   419, 

23  See  post,   §  302.  12  Am.  Rep.  214;   Hinsdale  v.  Hum- 

24  See  Egler  v.  Marsden,  5  Taunt,  phrey,  15  Conn.  433;  Trustees  of 
25;  Gibson  v.  Kirk,  1  Q.  B.  850;  Mc-  Hocl^ing  Co'unty  v.  Spencer,  7  Ohio 
Keon  V.  Whitney,  3  Denio  (N.  Y.)  (2d  pt.)  149.  See  ante,  §  49.  But, 
452.  as  before  stated,  there  are  decisions 

25  Wilkins  v.  Wingate,  6  Term  R.  to  the  effect  that  it  is  under  the  les- 
62;  Gibson  v.  Kirk,  1  Q.  B.  850:  see's  seal  if  it  is  under  the  lessor's 
King  v.  Fraser.  6  East,  348.  See  seal  and  accepted  by  him.  Ante,  § 
Davies  v.  Edwards,  3  Maule  &  S.  380.    53  b. 


COVENANT.  1823 

the  proper  action  on  a  written  agreement  to  pay  rent,  not  under 
seal,  is  assumpsit.^^ 

Not  only  will  such  an  action  lie  in  favor  of  the  lessor  against 
the  lessee,  but,  as  before  stated,3o  h  will  lie  in  f-^\^^^''^^ll 
feree  of  the  reversion,^!  or  against  an  assignee  of  the  leasehold, 
since  the  covenant  for  rent  is  one  which  runs  with  the  land.  • 
The  liability  of  the  assignee  of  the  leasehold  on  the  covenant  is 
in  a  sense,  based  on  privity  of  estate,  that  is,  it  is  imposed  on  such 
assignee  as  an  incident  of  the  leasehold  estate  passing  to  him, 
and^for  this  reason  an  action  of  covenant  against  him  has  been 
regarded  as  local.^^     On  the  other  hand,  such  an  action  by  the 
transferee   of  the  reversion,  if  against  the  original  lessee,  has 
been  regarded  as  based  on  privity  of  contract,  on  the  theory  that 
the  privity  of  contract  is  transferred  by  the  statute,  32  Hen.  8, 
c    34    and  has  therefore  been  regarded  as  transitory ,3e  as  m  an 
actiok  on  the  covenant  by  the  original  lessor  against  the  original 
lessee,^'^ 

23€omyn.  Landl.  &  Ten.  482.  See  -Barker  v  Damer  Carth  182; 
article  by  Prof.  J.  B.  Ames,  and  au-  Stevenson  v.  Lambard.  2  East.  liS 
jrormes  there  cited.  2  Harv.  Law  Copeland  v.  Stephens.  1  Barn.  & 
Rev  37  .  But  if  the  action  was  not  Aid.  593.  607;  Paul  v.  Nurse.  8  Barn^ 
on  the  promise,  but  merely  for  the  &  C.  486;  Bowdre  v.  Hajnpton,  6 
rent  reserved,  debt  was  the  proper  Rich.  Law  (S.  C.)  208;  Salisbury  v. 
rent  reserveu.  Shirley,    66    Cal.    323.    5    Pac.    104; 

Tsee  ante.  |§  180  b  (1).  181  b.  Hintze  v.  Thomas.  7  MdJ^^^  C-" 
3iM.d<^leys  V.  Lovelace,  12  Mod.  solidated  Coal  Co.  v.  Peers,  166  111. 
45;  Thur^by  v.  Plant.  1  Wms.  Saund.  361.  46  N.  E.  1105.  38  L.  R.  A^  624^ 
23^;  Outtoun  v  Dulin.  72  Md.  536,  -Barker  v^  Damer.  Carth  12. 
20  Atl  134-  Baldwin  v.  Walker,  21  Stevenson  v.  Lambard,  2  East  575 
conn.  '168;  Webster  v.  Nichols.  104  Thursby  v.  Plant^  1  Wms.  Saund. 
Ill  160-  Main  v.  Feathers.  21  Barb.  237;  Bowdre  v.  Hampton.  6  Rich, 
m    Y->'  646  L^^    ^^-   ^-^    ^^^'    ^^=^^"^  ^-   ^^"^ 

3;  Barker  "v.  Damer,  Carth.  182;  Alstyne.  2  Wend.  (N.  Y.)  561.  note. 
Stevenson  V.  Lambard,  2  East.  575;  3c  Thursby  v.  Plant.  1  Wms. 
Williams  V.  Rosanquet.  1  Brod.  &  Saund.  237.  1  Lev.  259.  and  notes  in 
B  238  Howard  v.  Ramsay.  7  Har.  &  1  Wms.  Saund.  (Ed.  1871)  278, 
j'  (Md)  113-  Bowdre  v.  Hampton,  307;  Comyn.  Landl.  &  Ten.  460;  1 
6 ' Rich   Law  (S    C.)  208;  McMurphy   Chltty,  Pleading  (7th  Ed.)  283. 

V  Minot    4  N.  H.  251;   Port  v.  J?.ck-        3t  Wey  v.  Tally.  6  Mod.  194;  Hen- 
son    17  Johns    (N.  Y.)   239;  Hannen    wood    v.    Cheeseman,    3    Serg.    &   R. 

V  Ewalt.  18  Pa.  9.     And  see  cases    (Pa.)    500;    1  Chitty,  Pleading   (7th 
cited  ante,  §  181  b,  note  670.  Ed.)   283. 

88  See  ante,  §  149  b   (2). 


1824  ACTIONS  FOR  RENT.  |  290 

The  distinction  above  indicated,  between  an  action  bj'  the 
transferee  of  the  reversion,  as  being  based  on  privity  of  contract, 
and  one  against  the  assignee  of  the  leasehold,  as  being  based  on 
privity  of  estate,  is  difficult  to  comprehend.  In  both  cases,  it 
would  seem,  the  action  is  in  a  sense  based  on  privity  of  contract 
as  being  brought  on  the  covenant,  while  it  is  also  in  a  sense 
based  on  privity  of  estate,  in  that  the  right  of  action  or  liability 
on  the  covenant  arises  from  the  ownership  of  an  estate  in  the 
land. 

c.  Assumpsit.  An  action  of  special  assumpsit  may  be  main- 
tained upon  the  lessee's  express  promise  to  pay  a  certain  sum  as 
rent,  provided  such  promise  is  not  under  seal.'^^  It  may  also  be 
brought  upon  his  express  promise  to  pay  a  reasonable  compensa- 
tion for  the  use  and  occupation  of  land.^^  To  be  distinguished 
from  such  an  action  of  special  assumpsit  is  that  of  indebitaius 
assumpsit,  which  does  not  involve  proof  of  an  independent  ex- 
press promise,  but  is  based  on  a  legal  inference,  from  the  fact 
that  the  use  and  occupation  of  land  is  by  permission,  of  a  promise 
to  pay  the  reasonable  value  thereof.^'' 

d.  Account.  In  jurisdictions  where  the  action  of  account 
still  exists,  it  may,  it  seems,  be  under  certain  circumstances  a 
proper  form  of  action  for  the  recovery  of  rent.-*^  And  a  statu- 
tory action  on  an  account  annexed  will  lie,  it  has  in  one  state 
been  decided,  under  circumstances  in  which  formerly  assumpsit 
for  use  and  occupation  was  the  remedy,  that  is,  where  there  is  a 
lease  not  under  seal  or  a  mere  permissive  occupation.^^  jn  an- 
sa See    cases    cited    in    article    by    Conn.   425;    Long  v.   Fitzimmons,   1 

Prof.  Ames,   on   Assumpsit   for  Use  Vv^atts  &  S.   (Pa.)   530;   Gunnison  v. 

and    Occupation,    in    2    Harv.    Law  'Bancroft,  11  Vt.  490;   Scott  v.  Lance, 

Rev.,  at  pp.  378,  379.    And  see,  also,  21  Vt.  507.     In  Nedvidek  v.   Meyer, 

Hinsdale    v.    Humphrey,    15    Conn.  46   Mo.   600,  it  is  said  that   "where 

433;  Rubens  v.  Hill,  213  111.  523,  72  riarties    have    mutual    dealings,    and 

N.    E.    1127;    Trustees    of    Hocking  rent   from   one   to   another  becomes 

County  V.  Spencer,  7  Ohio    (2d  pt.)  the  subject  of   an   account  between 

149;    Burnham  v.  Best,   49  Ky.    (10  them,  it  is  recoverable  in  an  action 

B.  Mon.)  227;  Sivem  v.  Sharretts,  48  on    account."     Citing   the   case   last 

Md.  408;    Johnson  v.  Muzzy,  45  Vt.  above  named. 

419,  12  Am.  Rep.  214.  -tsBowen    v.    Proprietors     of    the 

39  2  Harv.  Law  Rev.  379.  South     Building,     137     Mass.     274; 

40  See  post,  §  302.  Brown   v.    Magorty,   156   Mass.    209, 

41  See  Lockwood  v.  Lockwood,   22  30  N.  E.  1021. 


§  292  PROCEEDINGS  IN  EQUITY.  1S25 

Other  state  it  has  been  held  that  the  statutory  action  of  account 
will  lie  for  the  value  of  the  permissive  occupation  of  the  premises 
when  there  is  no  agreement  as  to  the  amount  of  rent  to  be  paid,^^ 
and  also  when  there  is  a  written  lease,  and  this  is  not  produced.** 

§  291.    Under  the  code  procedure. 

In  a  large  number  of  jurisdictions,  the  common-law  forms 
of  action  having  been  by  statute  abolished,  the  statements  made 
above  as  to  the  appropriate  forms  of  action  for  the  recovery  of 
rent,  and  their  distinguishing  characteristics  in  this  regard,  have 
no  longer  any  practical  application,  though  an  understanding  of 
these  characteristics  is  desirable  for  a  full  comprehension  of  the 
common-law  view  of  rent.  Likewise,  in  most  states,  the  common- 
law  distinctions,  above  referred  to,  between  local  and  transitory 
actions  for  rent,  have  been  superseded  by  statutes  directing 
where  suit  shall  be  brought,  as,  for  instance,  by  provisions 
that  suit  shall  be  brought  in  the  county  of  the  defendant's 
residence,  or  where  he  may  be  served  with  process,***  and  so  if 
the  rent  is  payable  in  a  certain  county,  the  venue  may  be  de- 
termined by  a  provision  that  an  action  on  a  contract  shall  be 
brought  at  the  place  of  performance.*'^ 

§  292.     Proceedings  in  equity. 

Equity  has  occasionally  taken  jurisdiction  of  a  proceeding  by 
the  landlord  for  the  recovery  of  rent  on  the  ground  that  the 
remedy  at  laAv  was  inadequate.  One  case  in  which  equity  thui» 
takes  jurisdiction  has  been  already  referred  to,  that  is,  where 
the  tenant  has  made  a  sublease,  the  court  in  such  case  com- 
pelling the  subtenant  to  pay  the  rent  to  the  chief  landlord,  on 
the  theory  that  the  rent  should  be  discharged  out  of  the  profits 
of  the  land.*6  This  theory,  that  the  profits  of  the  land  are  prop- 
erly applicable  to  the  payment  of  rent,  and  that  equity  alone 
can  enforce  such  application,  would  seem  to  be  the  ground  on 
which  the  jurisdiction  of  equity  may  most  ordinarily  be  sought 

43  Cameron  v.  Moore,  10  Ga.  368.         45  See    Campbell    v.    Gates     (Tex. 
44Burch  V.  Harrell.  93  Ga.  719,  20    civ.  App.)   51  S.  W.  268. 


S.  E.  212 

44a  See  University  of  Vermont  v, 
Joslyn,  21  Vt.  52. 

L.  and  Ten    115. 


46  See  ante,  §  181  c,  at  note  706. 


1826  ACTIONS  FOR  RENT.  §  292 

and  sustained.  It  cannot,  however,  be  said  that  this  reason  for 
the  assumption  of  jurisdiction  clearly  appears  from  the  cases, 
unless  it  is  to  be  inferred  from  the  fact  that  the  decisions  sus- 
taining the  equitable  jurisdiction  have  ordinarily  been  based 
on  the  nonavailability  of  the  remedy  by  distress  in  the  particular 
case,  the  effect  of  this  being  to  deprive  the  tenant  of  one  possible 
mode  of  securing  the  application  on  his  rent  of  the  profits  of  the 
land.  Thus,  jurisdiction  has  been  assumed  by  equity  when  the 
remedy  by  distress  was  nonexistent  owing  to  uncertainty  as  to 
the  character  of  the  rent,^^  or  owing  to  uncertainty  as  to  the 
boundaries  of  the  land  out  of  Avhich  the  rent  issued,^^  or  because 
the  rent  was  reserved  out  of  incorporeal  things  or  other 
property  not  subject  to  distress.*^  The  fact  that  no  sufficient 
distress  was  found  on  the  premises  has  been  decided  to  be  in- 
sufficient ground  for  the  interference  of  equity  in  the  absence 
of  fraud  on  the  part  of  the  tenant,^*^  a  view  which  has,  however, 
been  vigorously  questioned.^^  In  the  numerous  jurisdictions  in 
which  the  remedy  by  distress  no  longer  exists,  the  absence  of 
such  remedy  in  a  particular  case  cannot,  it  is  plain,  have  any 
bearing  upon  the  landlord's  right  to  equitable  relief,  but  the  fact 
that  he  has  or  has  not  one  of  the  statutory  remedies  substituted 
for  distress,  such  as  a  lien  on  the  chattels  or  crops  on  the  prem- 
ises,^- or  a  right  of  attachment,^^  would  probably  have  a  bearing 
on  the  question.  The  fact,  in  any  case,  that  the  landlord  has, 
by  statute,  or  by  express  stipulation,  the  right  to  resume  posses- 
sion of  the  premises  on  nonpayment  of  rent,  might  of  itself,  it 

4T  Collet    V.    Jacques,    1    Ch.    Cas.  of   incorporeal    things.     See  ante,    § 

120;    Cocks  v.   Foley,   1   Vern.   359;  169  a.     In  the  third  case  cited,  the 

Leeds  v.  New  Radnor,  2  Brown  Ch.  rent  was  created  by  the   king,  and 

338,    518.     See    Lawrence    v.    Ham-  consequently    a    different    rule    was 

mett,  26  Ky.  (3  J.  J.  Marsh.)   287.  applied. 

48  North   V.    Strafford,    3   P.   Wms.  co  Davy  v.  Davy,  1     Ch.  Cas.  144; 

148 ;  Holder  v.  Chambury,  3  P.  Wms.  Champernoon  v.  Gubbs,  2  Vern.  382. 

256;     Bridgewater    v.     Edwards,     4  That    equity    will    take   jurisdiction 

Brown    Pari.    Cas.    139;    Benson    v.  if    distress    is    prevented    by   fraud, 

Baldwyn,  1  Atk.  598.  see  above  cn?es,  and  also  Dawson  v. 

4P  Thorndike    v.    Allington,    1    Ch.  "Williams,  1  Freem.  Ch.    (Miss.)    99. 

Cas.   79;   Busby  v.  Salisbury,  Finch,  si  See  article  by  Prof.  C.  C.  Lang- 

256;  Leeds  v.  Powell,  1  Ves.  Sr.  171.  dell,  10  Harv.  Law  Rev.  93. 

In   the   first   two   cases   cited,   what  52  See   post,   §    321. 

was   termed   a   rent    was    really   an  b3  See  i)OSt,  chapter  XXXII. 
annuity,  since  rent  cannot  issue  out 


e  292  PROCEEDINGS  IN  EQUITY.  1827 

seems,  be  ground  for  a  refusal  by  a  court  of  equity  to  take  juris- 
diction to  aid  in  the  collection  of  reiit,^^  though  in  one  case, 
perhaps,  a  different  view  has  been  expressed.^s 

Equity  will  not  assume  jurisdiction  in  order  to  impose  liability 
on  one  other  than  the  lessee,  on  the  ground  that  he  was  the 
actual  beneficiary  of  the  lease,  and,  as  such,  occupied  the  land 
while  the  lessee  was  merely  his  trustee,  there  being  no  such 
liability  in  the  case  of  a  third  person  not  a  party  to  the  lease 
nor  a  legal  assignee  thereof.^® 

The  fact  that  the  amount  of  rent  payable  by  the  defendant  is 
uncertain,  either  because  he  is  a  tenant  of  but  a  part  of  the  land 
subject  to  the  lease,^^  or  for  other  reasons,^^  seems  to  be  regarded 
as  ground  for  the  interposition  of  equity.  And  the  jurisdiction 
of  equity  was  in  one  case  upheld  on  the  ground  that  the  instru- 
ment of  lease  was  lost.^® 

54  See  10  Harv.  Law  Rev.  91.  bs  Livingston     v.     Livingston,      4 

55  Pennsylvania  R.  Co.  v.  St.  Johns.  Ch.  (N.  Y.)  287,  8  Am.  Dec. 
Louis,  A.  &  T.  H.  R.  Co.,  118  U.  S.  562;  Van  Rensselaer  v.  Layman,  39 
290,  305,  30  Law.  Ed.  83,  where  Mr.  How.  Pr.  (N.  Y.)  9.  In  Dawson  v. 
Justice  '  Miller  says:  "Having  a  Williams,  1  Freem.  Ch.  (Miss.)  99, 
valuable  contract  in  regard  to  the  it  was  held  that  the  fact  that  the 
operation  of  the  road  for  a  great  lease  required  the  rent  to  be  fixed 
many  years  to  come,  plaintiff  (the  yearly  by  appraisers  was  ground  for 
lessor)  cannot  be  compelled  to  for-  equitable  jurisdiction.  In  Brennan 
felt  it  and  resume  possession  and  v.  Gale,  56  App.  Div.  4,  67  N.  Y, 
sue  for  all  its  damages  in  one  ac-  Supp.  382,  it  was  held  that  the 
tion."  Here  the  equitable  jurisdic-  landlord  could  ask  for  an  account- 
tion  was  sustained  on  the  ground  ing.  where  he  was  to  have  the  sur- 
that  there  were  numerous  and  com-  plus,  above  all  profits  made  by  the 
plex  issues,  involving  demands  "for  lessee,  up  to  a  certain  sum.  In  Jackson 
an  accounting,  injunction  and  spe-  v.  King,  82  Ala.  432,  13  So.  232,  it 
cific  performance  of  the  lessee's  was  held  that  the  lessor  could  not 
stipulations  to  keep  the  property  sue  at  law  where  the  compensation 
in  good  condition.  for  the  use  of  the  land  was  to  be  a 

56  Walters  v.  Northern  Coal   Min.  specific   part  of  the  crops   for  each 

Co.,  5  De  Gex,  M.  &  G.   629,  disap-  year,  and  the  lease  was  to  continue 

proving  Clavering  v.  Westley,   3  P.  until  this  amounted  to  sufficient  to 

Wms.   402;   Borcherling  v.  Katz,  37  discharge  a  certain  debt  by  the  les- 

N   J   Eq.  (10  Stew.)  151.     See  Ram-  sor  to  the  lessee,  the  determination 

age  v.  Womack  [1900]  1  Q.  B.  116.  of    this    involving    complicated    ac- 

5T  Swedesborough  Church  v.  Shiv-  counts, 

ers    16   N.  J.  Eq.    (1  C.   E.  Green)  so  Lawrence  v.   Hammett,    26   Ky. 

453             '  (3  J.  J.  Marsh.)  287. 


1828  ACTIONS  FOR  RENT.  §  292 

In  some  cases,  equity  has  taken  jurisdiction  of  a  proceeding 
by  the  landlord  for  rent  merely  because  of  the  tenant's  failure  to 
object  to  the  jurisdiction  by  demurrer  or  by  answer.^^  These 
decisions  have  been  questioned.^^ 

The  tenant  may  file  a  bill  of  interpleader  to  ascertain  the 
person  entitled  to  the  rent,  when  it  is  claimed  by  each  of  two 
persons,  both  of  whom  deduce  title  from  the  lessor,^^  or  one  of 
whom  so  deduces  his  title,  and  the  other  of  vrhom  is  the  les- 
sor liimself.63  The  tenant  has  no  right  to  file  such  bill  as 
against  the  lessor,  or  one  claiming  under  the  lessor,  and  a 
third  person  asserting  a  claim  against  him  under  a  title  para- 
mount to  the  lease,  for  the  reason,  in  the  first  place,  that  the 
claim  of  the  latter  cannot  be  the  same  as  that  of  the  former, 
that  is,  for  the  rent  reserved  by  the  lease,  and,  in  the  second 
place,  that  even  were  the  latter 's  claim  valid,  this  would  be  no 
defense  to  the  claim  for  rent,^^  Nor  can  one,  who  has  taken 
leases  of  the  same  premises  from  two  adverse  claimants  of  the 
premises,  compel  them  to  litigate  the  title  in  an  action  by  one 
of  them  for  rent.^^ 

60 Livingston     v.     Livingston,     4  165;   White  Water  Valley  Canal  Co. 

Johns.  Ch.   (N.  Y.)    287,  8  Am.  Dec.  v.  Comegj-s,  2   Ind.   4b9;    Snodgrass 

562;  Leeds  v.  New  Radnor,  2  Brown  v.  Butler,  54  Miss.  45;  Dodd  v.  Bel- 

Ch.    338,   518;    North  v.   Strafford,  3  lows,    29    N.    J.    Eq.    (2    Stew.)    127. 

P.  Wms.  148.     See  Holder  v.  Cham-  See  Williams  v.  Halbert,  46  Ky.   (7 

bury,  3  P.  Wms.  256.  B.    Men.)     184,    and    the    admirable 

61 1  Story,  Eq.  Jur.  §  684  c.  opinion  of  Sanborn,  J.,  in  Standley 

62  Cowtan  v.  V*'illiams,  9  Ves.  Jr.  v.  Roberts,  8  C.  C.  A.  305,  59  Fed. 
107;  Clarke  v.  Byne,  13  Ves.  Jr.  383;  836.  The  decisions  in  xMcDevitt  v. 
Glaser  v.  Priest,  29  Mo.  App.  1;  Sullivan,  8  Cal.  592;  Hall  v.  Craig, 
Badeau  v.  Tylee,  1  Sandf.  Ch.  (N.  125  Ind.  523,  25  N.  E.  538.  contra, 
Y.)  270;  Seaman  v.  Wright,  12  Abb.  cannot  well  be  supported.  The 
Pr.  (N.  Y.)  304;  McCoy  v.  McMur-  same  may  be  said  of  the  dictum  in 
trie,  12  Phila.  (Pa.)  180.  See  2  McCoy  v.  Bateman,  8  Nev.  126. 
Story,  Eq.  §  811.  65  Standley  v.  Roberts,  8  C.  C.  A. 

63  Clarke  v.  Byne,  13  Ves.  Jr.  383;  805,  59  Fed.  836,  although  the  stat- 
Ketcham  v.  Brazil  Block  Coal  Co.,  88  ute  in  terms  required  any  person 
Ind.  515.  who  has  an  interest  in     the  contro- 

6*  Dungey   v.   Angove,    2   Ves.    Jr.  versy    adverse   to   plaintiff,    or   who 

310;  Clarke  v.  Byne,  13  Ves.  Jr.  383;  is  a  necessary  party  to  a  complete 

Johnson  v.  Atkinson,  3  Anstr.  798;  determination    of    the    question    In- 

Crawshay  v.    Thornton,    2    Mylne  &  volved,  to  be  made  a  party  to  the 

C.   1;    Crane  v.  Burntrager,  1   Ind.  suit. 


PARTIES  PLAINTIFF.  1829 

An  injunction  will  not  issue  to  restrain  an  action  at  law  for 
the  rent  on  a  ground  which  may  be  asserted  as  a  defense  to  the 
action.^^* 

§  293.    Parties  plaintiff. 

a  Persons  beneficially  interested.  The  person  entitled  to  sue 
for"rent  is  ordinarily  the  person  who  is  entitled  to  receive  the 
rent,  by  reason  of  his  ownership  of  the  reversion,  or  of  the  rent 
without  the  reversion.^^^  At  common  law,  as  before  stated, 
rent  can  be  reserved  only  to  the  lessor,«^'=  and  consequently  a 
third  person  to  whom  the  lease  attempts  to  reserve  rent  cannot 
sue  therefor,^^^  but  by  a  few  decisions  in  this  country  such 
third  person  may  recover  the  rent,  on  the  theory  that  the  agree- 
ment to  pay  rent  was  made  for  his  benefit.«5e 

One  in  whom  the  legal  title  to  the  reversion  is  vested  as  trustee 
is  ordinarily  the  proper  person  to  recover  rent  incident^  to  the 
reversion  65f  But  in  some  jurisdictions,  in  which  a  right  or 
recovery  by  a  party  beneficially  interested  has  been  strongly 
asserted  and  the  distinction  between  legal  and  equitable  rights 
has  been  obscured,  a  right  in  the  cestui  que  trust  to  recover  rent 
reserved  on  a  lease  by  the  trustee  might  perhaps  be  recognized. 
If  a  lease  is  made,  by  an  instrument  not  under  seal,  by  one 
person  as  agent  for  the  owner  of  the  premises,  and  the  relation 
of  agency  is  not  disclosed  on  the  face  of  the  instrument,  either 
the  principal  or  the  agent  may  sue  on  the  lessee's  contract  to 
pay  rent««  the  same  rule  being  applicable  as  in  the  case  of  other 
contracts  made  with  an  agent."  A  disclosed  principal  may  also 
sue,  provided  the  lessee's  contract  to  pay  rent  is  not  under  seal, 

ena  Slater  v.Schwegler   (N.  J.  Eq.)    21    Ind.    App.    614.    ^2   N.   E    1012; 
54  All    937.  Murphy  v.  Hopcroft,  142  Cal.  43,  75 

65b  See  Heclit  v.  Ferris,  45  Mich.  Pac.  567;  Bates  v.  Scheik,  47  Mo. 
376,  8  N.  W.  82,  and  ante,  §  180  a,  b.    App.  642. 

c5cSee  ante,  §  170,  at  notes  101-  ce  Nicoll  v.  Burke,  78  N.  Y.  580. 
107.  34  Am.  Rep.   561;    Manete  v.  Simp- 

«5d  Southampton  v.  Brown,  6  ^^^^^  39  ^  y.  St.  Rep.  617,  15  N.  Y. 
Bvivn.  &  C.  718;  Berkeley  v.  Hardy,  g^^^  ^^g.  Philadelphia  Fire  Ex- 
5  Barn.  &  C.  355.  tinguisher  Co.  v.  Brainerd,  2  Wkly. 

cseSee   ante,    §   170.   at   note   108-    ^^^^^    ^^^     ^p^^     ^^3.    g^yant    v. 

109.  Wells.  56  N.  H.  152. 

G5f  See  Chapin  v.  Foss,  75  111.  280,  ,„   .  r^  >, 

,,%.     ^^^^r    1Q9   m     104  er  See  ante,  §  56  b. 
Harms   v.   McCormick,   132    ill.    wi, 

22  N.  E.  511;  Patterson  v.  Emerick, 


1830  ACTIONS  FOR  RENT.  §  293 

and  this  is  a  fortiori  the  case  if  the  principal  is  named  in  the 
instrument  as  the  lessor.^^  And  the  agent  for  a  disclosed  prin- 
cipal may  sue,  it  seems,  provided  the  lease  is  made  in  the  name 
of  the  agent  and  it  can  consequently  be  inferred  that  the  con- 
tract was  to  pay  rent  to  hira.*^^  In  the  case  of  an  instrumcni  of 
lease  executed  by  an  agent  in  his  own  name  and  under  seal,  he 
alone  is  authorized  to  sue  for  the  rent,'^''  and  a  statute  autliorizing 
actions  by  the  real  party  in  interest  does  not  enable  the  principal 
to  sue  in  such  case,  unless  perhaps  his  title  has  been  in  some  way 
recognized  by  the  lesseeJ^ 

b.  Transferees.  In  case  of  a  transfer  of  the  reversion,  the 
transferee  is  the  proper  person  to  sue  for  rent  thereafter  ac- 
cruing, as  being  the  person  entitled  thereto,'^^  unless  the  person 
making  the  transfer  reserves  the  rent,  in  which  case  the  latter  is 
the  person  to  sue.'''^  If  the  rent  is  transferred  without  the  rever- 
sion, the  transferee  is  the  person  entitled  to  sue.'^'*  The  right  to 
rent  to  accrue  in  the  future  was  never  regarded  as  a  chose  in 
action  at  common  law,  within  the  rule  precluding  the  assignee 
of  a  chose  in  action  from  suing  thereon  in  his  own  name,  and  con- 
sequently the  transferee  of  the  rent  without  the  reversion  could 
always  sue  therefor.  But  an  installment  of  rent  which  is  already 
due  is  a  chose  in  action  and  nothing  more,  and,  consequently,  one 
taking  an  assignment  of  such  an  installment  after  it  was  due 
could  not,   at    common   law,   sue   therefor   in   his   own  nameJ^ 

esHuffcut,    Agency,    §§    164,    165.  ^4  pfafE  v.  Golden,  126  Mass.  402; 

But   see   Harms  v.    McCormick,   132  Wineman  v.   Hughson,   44   111.   App. 

111.  104,   22  N.  E.  511.  22;    Willard  v.  Tillman,  2   Hill    (N. 

69HufEcut,  Agency,  §  208.  Y.)  274;  Moffatt  v.  Smith,  4  N.  Y.  (4 

70  Harms  v.  McCormick,  132  111.  Comst.)  126;  Hunt  v.  Thompson,  84 
104,  22  N.  E.  511;  Melcher  v.  Krei-  Mass.  (2  Allen)  341;  Bowman  v. 
ser,  28  App.  Div.  362,  51  N.  Y.  Supp.  Keleman,  65  N.  Y.  598;  Demarest  v. 
249.  See  Sanborn  v.  Randall,  62  N.  Willard,  8  Cow.  (N.  Y.)  206  (Action 
H.  620,  and  ante,  §  56  a.  on  covenant) ;  Ards  v.  Watkin,  Cro 

71  Schaefer  v.  Henkel,  75  N.  Y.  Eliz.  637,  651;  Allen  v.  Bryan,  5 
378.     In  Berkeley  v.  Hardy,  5  Barn.  Barn.  &  C.  512. 

&  C.  355,  it  was  decided  that,  when  Marcum    v.    Hereford,    38    Ky.    (8 

the  lease  was  made   in  the  agent's  Dana)  1,  and  Hicks  v.  Doty,  67  Mass. 

name,   the   principal   could   not   sue  (4    Bush)     420,    seem    to    take    the 

for  the  rent,  though  it  was  express-  view  that  one  to  whom  rent  there- 

ly  made  payable  to  him.  after   to   accrue   is   assigned   cannot 

72  See  ante,  §  180  b.  sue   therefor,    apart   from   statute. 

73  See  ante,  §  180  c  (1).  75  Lewes  v.  Ridge,  Cro.  Eliz.  863; 


§  293  PARTIES  PLAINTIFF.  1831 

In  most  jurisdictions,  however,  the  rule  forbidding  an  assignee- 
of  a  chose  in  action  to  sue  thereon  has  been  changed  by  statute, 
and  so  the  assignee  of  rent  already  due  may  sue  therefor  in  his 
own  name,  as  may  any  other  assignee  of  a  chose  in  action. 

c.  Persons  jointly  entitled.  If  tenants  in  common  make  a 
joint  demise  for  years,  reserving  one  entire  rent,  they  may,  at 
common  law,  join  as  plaintiffs  in  an  action  of  debt  for  the  rent,'''^ 
or  each  may,  it  seems,  bring  a  separate  action  of  debt  for  his 
share.'^'^'  Tenants  in  common  entitled  to  rent,  not  as  being  the 
original  lessors  but  as  having  obtained  the  reversion  by  transfer 
from  the  lessor,  must  sever,  it  seems,  for  the  purpose  of  an  ac- 
tion of  debt,'^^  and  this  must  be  done  by  tenants  in  common  who 
make  separate  demises  of  their  undivided  shares,  with  a  moiety 
of  the  rent  payable  to  each.'^^ 

The  question  whether  tenants  in  common,  who  join  in  making 
a  lease,  should  join  in  an  action  on  the  covenant  for  rent,  is 
determined  by  the  same  considerations  as  control  in  the  case  of 
any  other  contract  made  with  two  or  more  persons^^*  They 
must  all  join  as  plaintiffs  if  it  is  joint,  while  if  it  is  a  several 
covenant,  that  is,  if  it  is  in  effect  a  separate  covenant  with  each, 
they  cannot  join,  but  must  sue  separately .'^^^  AVhether  it  is  one 
or  the  other  is  to  be  determined  by  considering  not  only  the 
language  used,  but  also  the  interests  of  the  parties.^*^  Ordinarily 
a  covenant  to  pay  rent  will,  in  such  a  case,  be  a  joint  covenant, 

Canhan  v.  Rust,  8  Taunt.  227;  Bur-  lessor  may  sue  alone  in  debt  for  his 

den  V.  Thayer,  44  Mass.    (3   Mete.)  share  of  the  rent,  see  Hare  v.  Proud- 

76,   37   Am.   Dec.   117;    Demarest  v.  foot,  6  U.  C.  Q.  B.  (0.  S.)  617. 

Willard,   8   Cow.    (N.   Y.)    206.     See  to  powis  v.  Smith,  5  Barn.  &  Aid. 

Lord  V.  Carnes,  98  Mass.  308.  851;    Wilkinson  v.  Hall,  1     Bing.  N. 

76Midgley  v.  Lovelace,  Carth.  289;  C.  713. 

Martin  v.  Crompe,  1  Ld.  Raym.  341;  79a  Dicey,    Parties,   112;    Hammon, 

Decker  v.  Livingston,  15  Johns.   (N.  Contracts,  770. 

Y.)   479.     See  1  Piatt,  Leases,  133.  7ob  See  Comyn,  Landl.  &  Ten.  455; 

77  Midgley     v.      Lovelace,     Carth.  1    Piatt,    Leases,    134;    Eccleston    v. 

289,   Holt.  74;    Martin  v.  Crompe,  1  Clipsham,   1   Wms.   Saund.  153,  and 

Ld.  Raym.  341;  Harrison  v.  Barnby,  notes;  Foley  v.  Addenbrooke,  4  Q.  B. 

5     Term     R.     246.        See     Powis     v.  197;   Marys  v.  Anderson,  24  Pa.  272; 

Smith.  5  Barn.  &  Aid.  850,  1  Dow.  &  Bryant    v.    Wells,    56    N.    H.     152; 

R.  490.  Churchill  v.   Lammers,  60  Mo.  App. 

7s  Huntley's   Case,   3   Dyer,   326   a,  245. 

1    And.    21;    1    Piatt,    Leases,    134.  so  See  ante,  §  52. 
That  each  of  several  devisees  of  the 


1832  ACTIONS  FOR  RENT.  §  293 

in  a  suit  on  which  all  the  covenantees  must  join,  since  a  l)reach 
of  the  covenant  as  to  one  is  a  breach  as  to  all,  and,  consequently, 
their  interests  in  its  performance  are  joint,  and  this  has  been 
held  to  be  the  case  even  when  it  is  expressly  stated  what 
share  of  the  rent  is  to  be  paid  to  each,  as  when  it  is  reserved  to 
them  "according  to  their  several  and  respective  rights  and  in- 
terests."^^ Tenants  in  common  who  are  such  by  acquisition  of 
undivided  interests  in  the  reversion  from  the  original  lessor  or 
lessors  may,  it  is  held,  either  join  or  sever  in  suing  on  the  cove- 
nants which  run  with  the  land,  among  which  is  that  for  rent,^- 
their  contract  being  joint  and  their  interests  several.^^ 

In  case  of  a  demise  by  joint  tenants,  as  distinct  from  tenants  in 
common,  reserving  an  entire  rent,  one  of  the  lessors  alone  cannot 
sue  therefor  in  debt,^^  and  they  must,  it  seems,  like  tenants  in 
common,  join  in  a  suit  on  a  joint  covenant  made  with  both  or  all 
of  them,  though  it  is  otherwise  if  the  covenant  is  several  in  its 
nature.^^ 

d.  On  death  of  person  entitled.  In  case  of  the  death  of  the 
landlord  the  right  to  rent  already   due  passes  to  his  personal 

siPowis  V.  Smith,  5  Barn.  &  Aid.  ley,  21  N.  Y.  280;    1   Piatt,  Leases, 

850;  Wallace  v.  McLaren,  1  Man.  &  135;    Addison,  Contracts   (10th  Ed.) 

R.  516   (semble);   Tylee  v.  McLean,  218.     That  each  owner  of  the  rever- 

10  Wend.  (N.  Y.)  374;  Wall  v.  Hinds,  sion    may    in    such    case   sue   separ- 

70  Mass.  (4  Gray)   256,  64  Am.  Dec.  .itely,  see  Cole  v.  Pattison,  25  Wend. 

64.     This  is  in  accordance  with  the  (N.  Y.)    456;   Jones  v.  Felch,  16  N. 

general  rule  that  a  separation  of  in-  Y.  Super.  Ct.  (3  Bosw.)   63;  Bowser 

terests  of  covenantees  is  not  created  v.  Cox,  3  Ind.  App.  309,  29  N.  E.  616; 

by  a  statement  as  to  the  proportions  Henniker  v.   Turner,  4     Barn.  &  C. 

to  be  taken  by  each.     Lane  v.  Drink-  157. 

water,  1  Cromp.  M.  &  R.  599;  Byrne  In  Cantwell  v.  Moore,  44  111.  App. 

V.  Fitzhugh,  1  Cromp.  M.  &  R.  597.  656,  it  was  decided  that  grantees  of 

But   a  contrary  view,  to  the   effect  the  lessors  could  sue  jointly,  though 

that   when   the   proportion    of   rent  the  latter,  at  the  time  of  making  the 

payable  to  each  lessor  is  stated,  each  joint  lease,  owned  separate  portions 

may     sue     separately     therefor,     is  of   the  land,  and  each  conveyed  to 

adopted  in   Gray  v.  Johnson,  14  N.  one    of    the    plaintiffs    his    separate 

H.  414.  portion. 

82  Midgley  V.  Lovelace,  Carth.  289;  83  See  Roberts  v.   Holland    [18931 

latchen     V.    Buckly,    1    Lev.     109;  1  Q.  B.  665;  Piatt,  Covenants,  130. 

Wormersley    v.    Dally,    26    Law    J.  84  Bac.  Abr.,  Joint   Tenants    (K) ; 

Exch.    219;    Harrison   v.   Barnby,    5  1    Plan,    Leases,    127.     See    Litt.    § 

Term  R.  246.    See  Martin  v.  Crompe,  311;  Co.  Litt.  180  b. 

1  Ld.  Raym.  341;  Marshall  v.  Mose-  ss  Welnsteine  v.  Harrison,  66  Tex. 


„  293  PARTIES  PLAINTIFF.  1833 

representative,  and  that  thereafter  falling  due  ordinarily  passes 
with  the  reversion  to  the  heir  or  devisee,  nnless  the  reversion 
itself  is  personalty,  when  it  passes  to  the  personal  representa- 
tives.8«.  87  An  action  for  the  rent  is  properly  brought  by  the 
person  or  persons  so  entitled. 

In  case  of  the  death  of  one  of  two  or  more  persons  to  whom  the 
reversion  belongs  as  tenants  in  common,  his  undivided  mterest, 
if  freehold  in  character,  passes  to  his  heir  or  devisee,^^  and  the 
rioht  to  recover  a  proportionate  share  of  the  rent  passes  to  the 
latter  along  with  such  undivided  interest,^^  and  he  may  sue  there- 
for in  debt  ^^     Whether  the  heir  or  devisee  of  the  undivided  in- 
terest of  a  tenant  in  common  has  a  right  of  action  in  covenant, 
as  well  as  in  debt,  that  is,  upon  the  privity  of  contract  as  well  as 
upon  that  of  estate,  does  not  clearly  appear  from  the  ca^es,  but 
that  he  may  sue  on  the  covenant  would  seem  to  be  a  necessary 
result  of  the  principle  that  the  covenant  for  rent  runs  with  the 
land  91     In  one  case,  however,  it  is  apparently  decided  that,  such 
a  covenant  being  made  jointly  with  all  the  tenants  in  common, 
upon  the  death  of  one  the  right  of  action  vests  exclusively  m  the 
survivor  or  survivors,^-  this  according  with  the  rule  which  ap- 

546    1  S    W    626;  Churchill  v.  Lam-  and    the    general    language    of    the 

mers.  60  Mo.  App.  244.  later  case  favors  the  view  that  the 

80.87  See  ante,  §  180  g.  right  of  action  on  the  covenant  to 

88  Roberts  V.  Holland  [1893]  1  Q.  pay  rent  vests  in  the  survivor,  to  the 
g   gg5  exclusion  of  the  heir  or  devisee  of 

89  Beer   v.    Beer,    12   C.   B.    60;    1  the    deceased    tenant    in    common. 
Piatt    Leases,   13i.  The  language  of  Byles,  J.,  in  Thomp- 

90Burne  v.'  Cambridge,  1  Moody  son  v.  Hakewill,  19  C.  B.  (N.  S.) 
&  R  539-  Beer  v.  Beer,  12  C.  B.  60.  U3.  would  seem  to  make  it  a  ques- 
9iThat  a  covenant  may  run  with  tion  of  construction  whether  the 
an  undivided  interest  in  the  rever-  right  to  sue  on  a  covenant  in  favor 
sion  see  Midgley  v.  Lovelace,  Carth.  of  tenants  in  common  shoulu,  on  the 
289-'  Thompson  v.  Hakewill,  19  C.  death  of  one,  vest  in  the  survivor, 
B  (N  S  )  713-  Roberts  v.  Holland  to  the  exclusion  of  the  heir  or  de- 
11893]'  1  Q.  B.  665.  visee.     In  Codman  v.  Hall,  91  Mass. 

92  Wallace  v.  McLaren,  1  Man.  &  (9  Allen)  335,  it  is  decided  that,  on 
R  516  The  statement  by  Williams,  the  death  of  one  of  the  three  joint 
J  in  the  later  case  of  Beer  v.  Beer,  owners  who  made  the  lease,  "the 
12  C  B  73  that  the  remark,  in  the  cause  of  action  for  rent,  or  for  use 
earlier  case,  that  the  survivor  may  and  occupation,  survived  to  the 
sue  for  the  whole,  is  unnecessary  to  other  two." 
the     decision,    seems    questionable. 


1834  ACTIONS  FOR  RENT.  §  294 

plies  ordinarily  in  the  ease  of  a  eontract  made  with  several  per- 
sons jointly.^3 

e.  Stiitiitory  provisions.  The  common-law  rules  as  to  the 
proper  persons  to  sue  for  rent,  or  to  join  in  an  action  therefor, 
are  modified  in  many  of  the  states  by  the  codes  of  procedure  and 
the  practice  acts  providing  for  the  prosecution  of  all  actions 
in  the  names  of  the  real  parties  in  interest,  and  authorizing  the 
joinder  as  plaintiffs  of  all  persons  having  an  interest  in  the  sub- 
ject-matter of  the  action  and  in  the  relief  sought  to  be  obtained. 

§  294.    Parties  defendant. 

a.  Joint  or  several  liability.  At  common  law  a  covenant  for 
rent  is,  like  any  other  contract,  in  its  nature  joint  as  to  the  cove- 
nantors, unless  it  is  so  expressed  as  to  be  several,  or  joint  and 
several,  and  the  action  must  be  brought  against  all  the  covenan- 
tors, except  in  certain  cases,  as  when  one  of  them  is  dead,  or  is 
out  of  the  jurisdiction,  or  is  bankrupt.^*  The  covenant  may, 
however,  be  so  phrased  as  to  impose  on  the  covenantors  a  lia- 
bility both  joint  and  several,  in  which  case  the  covenantee  has 
the  option  of  suing  either  one  or  all  of  the  covenantors,^'^  or  it 
might  be  so  expressed  as  to  impose  merely  a  several  liability, 
in  which  case  the  covenantors  must  be  sued  separately.^^*  A 
covenant  is  not  several  rather  than  joint  because  the  demise  is 
expressed  to  be  to  the  covenantors  "as  tenants  in  common,  and 
not  as  joint  tenants,"  nor  because  they  covenant  that  "they,  or 
some  or  one  of  them,  their  executors,  administrators  or  assigns," 
will  pay  the  rent.^^ 

In  a  number  of  states  it  is  provided  by  statute  that  con- 
tracts which  would  at  common  law  be  joint  contracts  shall  be 
construed  as  joint  and  several  contracts,  and  such  a  provision 
would  presumably  apply  to  a  covenant  for  rent,  as  would,  pre- 
sumably, the  provision  found  in   many  states  authorizing  the 

93  See      Leake,      Contracts,      376;  05  LiHy    v.    Hodges,    8    Mod.    166; 

Hammon,  Contracts,   763,  and   ante,  Enys     v.     Donnithorne,    2     Burrow, 

§  55  b.  1190;   Northumberland  v.  Errington, 

9i  Dicey,    Parties,    230;    Hammon,  5  Term  R.  522. 

Contracts,    758,    769;    15   Enc.   Pldg.  "sa  See  ante,  §  52. 

&  Prac    548,  556;    Comyn,  Landl.  &  sc  White  v.  Tyndall,  13  App.  Cas. 

Ten.   457.  263. 


PARTIES  DEFENDANT.  1835 

joinder  of  two  or  more  persons  severally  liable  upon  the  same 
instrument  or  obligation.^"^  . 

b  On  assignment  of  leasehold.  In  case  of  an  assignment 
of  the  leasehold,  either  the  lessee  or  the  assignee  is  a  proper 
party  defendant  to  an  action  for  rent,  the  first  being  liable  by 
reason  of  privity  of  contract,^^  and  the  second  by  reason  of 
privity  of  estate.^s-^  The  landlord  may  at  common  law  sue,  at 
his  election,  either  the  lessee  or  the  latter 's  assignee,  the  former 
in  covenant,  on  the  privity  of  contract,^«^  the  latter  either  m 
debt  on  the  privity  of  estate,^^'^  or  in  covenant,  on  the  privity 
of  contract  based  on  the  privity  of  estate.^^  If,  however,  he 
sues  both  the  lessee  and  the  latter's  assignee,  he  can  issue  execu- 
tion against  one  of  them  only.i^o 

In  case  the  lessee  assigns  the  leasehold  interest  m  part  of 
the  premises,  the  assignee  is,  as  before  stated,  liable  m  propor^ 
tion  to  the  value  of  the  premises  of  which  he  becomes  the  tenant 
and  is  a  proper  defendant  in  an  action  to  enforce  such  liability 
He  may  be  sued  without  the  joinder  of  those  who  may  be  liable 
for  the  balance  of  the  rent  as  being  tenants  of  the  other  part  of 
the  premises  102  and  it  would  seem  that  it  is  improper  to  join 
them,  the  liability  of  each  for  his  share  of  the  rent  being  .several 
and  independent  of  that  of  the  others.i"^ 

c  On  death  of  person  liable.  In  case  of  the  death  of  a 
sole  tenant  of  the  premises,  his  personal  representative  is,  sub- 
ject to  some  limitations  heretofore  referred  W^  liable  for  the 
rent  thereafter  accruing,  and  is  consequently  the  proper  party 
defendant  to  an  action  for  rent. 

At  common  law,  if  a  lease  is  made  to  two  or  more  persons, 
one  of  whom  dies,  no  portion  of  the  liability  on  the  covenant 
for  rent,  regarded  as  a  joint  covenant  by  the  lessees,  passes  to 

97  See  15  Enc.  Pldg.  &  Prac.   741,       101  See  ante.  §  181  b.  at  notes  677. 

744  ^'^^• 

OS  See  ante   §  181  a.  at  note  653.  1^2  Van    Rensselaer    v.    Bonesteel, 

9sa  see  ante.  §  181b.  24  Barb.    (N.  Y.)    365. 

«sbSeeante,  §  181  a,  atnote653.        "^  See    Bowdre    v.     Hampton.     6 
.80  See  ante,  §  181  b,  at  note  665.    Rich.   Law    (S.  C.)    208;   Van  Rens- 

99  See  ante,  §  181  b,  at  notes  670-    selaer  v.  Layman.   39  How.  Pr.    (N. 

Y  )  9      But  Hannen  v.  Ewalt,  18  Pa. 
673.  ' 

100  See     2      Piatt,     Leases,     356;    9,  is  to  the  contrary. 

Comyn,  Landl.  &  Ten.  270;  Brett  v.       104  See  ante.  §  181  c. 
Cumberland.  Cro.  Jac.  523. 


1836  ACTIONS  FOR  RENT. 


§204 


the  personal  representative  of  the  deceased,  but  the  whole  lia- 
bility is  imposed  on  the  survivors,  this  being  the  general  rule  in 
case  of  the  death  of  a  joint  contractor.' os  Iq  a  number  of  juris- 
dictions, however,  this  common-law  rule,  that  the  surviving  con- 
tractor or  contractors  are  liable,  to  the  exclusion  of  the  repre- 
sentatives of  the  deceased  contractor,  has  been  changed  by  stat- 
ute ;  and  even  at  common  law,  if  the  promise  to  pay  rent  can  be 
construed  as  a  several  promise,  or  as  a  joint  and  several  prom- 
ise, a  different  rule  applies,  and  the  representative  of  the  de- 
ceased promisor  is  liable  thereon. '^^ 

Though  the  personal  representative  of  the  deceased  joint 
contractor  is,  under  the  above  rule,  not  liable  on  the  covenant 
for  rent  by  reason  of  his  possession  of  assets  of  the  estate,  never- 
theless, if  a  part  interest  passes  to  him,'^^  ^nd  he  enters  on  the 
premises,  he  is,  it  seems,  liable  for  a  proportionate  part  of  the 
rent  as  the  assignee  of  an  undivided  interest  in  the  term.i"^ 

If  the  leasehold  vests  in  two  or  more  persons  by  assignment, 
and  one  of  them  thereafter  dies,  the  liability  for  his  share  of  the 
rent  would  seem  to  pass  to  his  executor,  as  assignee  of  the  term, 
provided  the  executor  enters,  of  which  liability,  however,  he  may 
divest  himself  by  an  assignment  to  another.'o^ 

d.  Persons  asserting  title.  It  has  been  held  that  where  the 
defendant  in  an  action  for  rent  has  been  sued  for  damages  for 
his  occupation  of  the  premises  by  a  third  person  claiming  to  be  the 
real  owner,  such  third  person  should  be  made  a  party,  under  a 
statute  providing  that  when  a  complete  determination  of  a  con- 
troversy cannot  be  affected  without  the  presence  of  other  parties, 
the  court  must  cause  them  to  be  brought  in.iio  But  ordinarily 
a  third  person  claiming  under  paramount  title,  even  though  the 
tenant  has  attorned  to  him,  is  not  a  proper  party  to  an  action 

106  See  Hammon,     Contracts,  761;  day,  took  the  leasehold   Interest  as 

Dicey,   Parties,   237;    White  v.  Tyn-  tenants  in  common,  and  not  as  joint 

dall,  13  App.  Cas.  263,   and  ante,  §  tenants  with  the  right  of  survivor- 

55  a,  at  note  84.  ship. 

106  White  V.  Tyndall,  13  App.  Cas.  los  See  ante,  §  181  c,  at  note  699. 
263;  Enys  v.  Donnithorne,  2  But-  io9  See  ante,  §  181  c,  at  notes  699, 
row,  1190.     See  Hammon,  Contracts,  702. 

765,  767;   Dicey,  Parties,  238.  "o  McKesson  v.  Mendenhall,  64  N. 

107  That  is,  if  the  lessees,  as  they   C.  286. 
would  ordinarily  do  at  the  present 


§294 


PARTIES  DEFENDANT.  1837 


against  the  tenant  for  rent,  since  the  question  of  title  is  not  an 
issue  in  such  an  action.^^^ 

e.  Guarantors  and  sureties.  At  common  law,  a  guarantor  of 
the  performance  by  the  lessee  of  his  contract  to  pay  rent  cannot 
be  joined  with  the  lessee  or  tenant  in  an  action  for  rent,  the 
contract  of  guaranty  being  entirely  separate  frcm  the  contract 
for  rent.112  On  the  other  hand,  one  who  enters  into  a  contract 
of  suretyship  for  the  lessee's  performance  of  his  covenant  may 
be  sued  jointly  with  the  latter,  unless  the  liability  of  the  princi- 
pal and  surety  is  expressly  made  several  and  not  joint,!^'  and  if 
it  is  joint,  and  not  several,  nor  joint  and  several,  they  must  be 
sued  together,  as  must  any  joint  contractors.^!^ 

The  rule  that  a  guarantor  cannot  be  joined  with  the  principal 
debtor  as  a  joint  defendant  has  in  some  states  been  regarded  as 
changed  by  the  statutory  provision,  frequently  found,  that  two 
or  more  persons  severally  liable  upon  the  same  written  instru- 
ment or  obligation  may  all  be  included  in  one  action  at  the  option 
of  the  plaintiff,!!^  and  it  has  accordingly  been  decided  that 
under  such  a  statute  a  lessor  may  join  in  one  action  the  lessee 
and  one  who  guaranteed  the  performance  of  the  lessee's  cove- 
in  Hill  V.  Williams,  41  S.  C.  134,  of  the  lease  "guaranteed"  the  pay- 
19  S.  B.  290.  See  Standley  v.  Roberts,  ment  of  rent  as  it  fell  due,  it  was 
8  C.  C.  A.  305,  59  Fed.  836,  and  ante,  held  that  he  might  be  sued  jointly 
at  note  65a.  with  the  lessee.    This  seems  to  have 

112  Virden  v.  Ellsworth,  15  Ind.  been  properly  a  contract  of  surety- 
144;  Cross  v.  Ballard,  46  Vt.  415;  ship  rather  than  of  guaranty,  since 
Tumey  v.  Penn,  16  111.  485;  Tourte-  the  person  so  joining  was  a  party  to 
lott  V.  Junkin,  4  Blackf.  (Ind.)  483.  the  original  contract.  In  Preston  v. 
In  the  two  latter  cases,  though  the  Huntington,  67  Mich.  139,  34  N.  W. 
contract  is  spoken  of  as  one  of  sure-  279,  it  was  decided  that  one  who, 
tyship,  it  seems  to  have  been  one  of  by  an  endorsement  on  the  instru- 
guaranty,  strictly  ppeaking.  ment  of  lease,  executed  on  the  same 

113  This  is  the  general  rule  in  the  date,  stated  that  he  became  surety 
case  of  contracts  of  suretyship,  for  the  punctual  payment  of  the 
Castner  v.  Slater,  50  Me.  212;  Lee  rent,  and  that  in  case  of  default  he 
V.  Bolles,  20  Mich.  46;  Oxford  Bank  would  pay  the  rent  due,  was  a  surety, 
V.  Haynes,  25  Mass.  (8  Pick.)  423,  19  and  could  be  sued  jointly  with  the 
Am.  Dec.  334;  Gaff  v.  Sims,  45  Ind.    principal. 

262;  McMillan  v.  Bull's  Head  Bank,       n*  City  of  Philadelphia  v.  Reeves, 
32  Ind.  11,  2  Am.  Rep.  323.  48  Pa.  472. 

In  McLott  V.  Savery,  11  Iowa,  323,  ns  See  16  Enc.  Pldg.  &  Prac.  942. 
where  one  joining  In  the  execution 


1838  ACTIONS  FOR  RENT.  §  295 

nant  by  words  to  that  effect  in  the  instrument  of  lease,  which 
was  signed  by  him.^^^  But  such  a  statute  does  not  authorize  an 
action  against  two  sureties  jointly  if  their  liability  is  for  differ- 
ent demands,  as  when  each  of  two  tenants  is  to  pay  half  the  rent, 
and  each  surety  is  liable  for  one  tenarft's  share  of  the  rent.^^'' 
It  has  been  decided  that  a  separate  writing  annexed  to  the  in- 
strument of  lease  does  not  impose  a  liability  "upon  the  same 
written  instrument"  within  the  statute,^^®  though  in  another 
jurisdiction,  where  the  statute  authorized  the  joinder  of  persons 
severally  liable  upon  the  same  obligation  or  instrument,  "includ- 
ing sureties  on  the  same  instrument,"  one  who  guaranteed  the 
lessee's  contract  by  an  endorsement  on  the  lease  could,  it  was  held, 
be  sued  with  him.i^* 

§  295.     Pleading. 

At  common  law,  in  an  action  of  debt  for  rent,  even  though 
the  rent  was  reserved  by  deed,  it  was  unnecessary  to  set  out  or 
recite  the  deed  in  the  declaration,  it  being  regarded  not  as  the 
gist  of  the  action,  but  as  merely  inducement.^20  ■Q■^J^^  jf  ^j^g  decla- 
ration undertook  to  recite  the  important  parts  of  the  deed  and 
the  particulars  of  the  demise,  any  substantial  variance  in  thi^. 
regard  was  fatal.^^i  it  -^rj^s  necessary,  in  an  action  of  debt,  to 
allege  the  reservation  of  the  rent^--  and  the  time  at  which  it 
became  due.^^"^ 

In  an  action  of  covenant  it  was  necessary  to  show  that  the 
writing  upon  which  the  action  was  brought  was  a  deed,  that  is, 
was  under  seal,^^*  j^  being  sufficient,  in  this  regard,  however,  to 
aver  that   it   was    an   indenture.125     j^  -y^^s   also   necessary,   in 

lie  Carman  v.  Plass,  23  N.  Y.  286;  121  Bristow  t.  Wright,  2  Doug.  665, 

Decker  v.   Gaylord,  8  Hun    (N.  Y.)  and   note;    Sands   v.   Ledger,   2   Ld. 

110.  Raym.  792. 

117  Southmayd  v.  Jackson,  15  Misc.  122  Parker  v.  Harris,  1  Salk.  262; 
476,  37  N.  Y.  Supp.  201.  com.  Dig.,  Pleader  (2  W.  14). 

118  Phalen  v.  Dingee,  4  E.  D.  Smith  ^^^  ^  ^^  ^^ 
(N.    Y.)    379;    T.bbits    V.    Percy,    24 

Barb.  (N.  Y.)  39. 

119  Lucy  V.   Wilkins,  33  Minn.   21,       '-"Southwel  v.   Brown,  Cro.   Eliz. 

21  N.  W.  849.  ^'^^• 

i2oComyn,   Landl.    &   Ten.   430;    1  1^5  Moore   v.    Jones,   2   Ld.   Raym. 

Wms.  Saund.  276,  note  (1)  to  Duppa  1536. 
V.  Mayo. 


§  295  PLEADING.  1839 

such  an  action,  to  state  the  making  of  the  lease,  to  set  out  the 
covenant  for  rent,  and  to  aver  the  breach  thereof.^ -^ 

The  statement  or  suggestion  occasionally  made  at  the  pres- 
ent day,  that  there  must  be  an  averment  of  a  promise  to  pay  the 
rent,^27  jg  jjq  doubt  correct  if  the  action  is  covenant  or  assumpsit, 
or  can  be  regarded  as  the  statutory  equivalent  thereof.  If,  how- 
ever, the  action  is  one  of  debt,  or  can  be  regarded  as  the  equiva- 
lent thereof,  and  there  seems  ordinarily  no  objection  to  so  re- 
garding it,  no  necessity  exists  of  averring  a  promise,  the  action 
being  based  upon  the  reservation  of  the  rent  and  enjoyment  of 
the  land.128 

The  declaration  or  complaint  must  always,  at  the  present  day, 
as  at  common  law,  either  by  express  statement  or  necessary  im- 
plication, aver  that  the  installment  or  installments  of  rent  sued 
for  are  past  due.^^a 

If  the  action  is  not  between  the  original  parties  to  the  lease, 
the  declaration  or  complaint  must  show  how,  by  assignment  or 
otherwise,  the  plaintiff  became  entitled  to  the  rent  or  the  de- 
fendant became  liable  therefor.^^o  j^^^i  j^  j^^s  been  held  that, 
though  the  landlord  alleges  an  assignment  of  the  leasehold  in 
the  whole  premises,  he  may  prove  an  assignment  of  the  leasehold 

126  Comyn,  Landl.  &  Ten.  463.  ment  of  the  rent,  the  entry  of  de- 
"In  an  action  of  covenant  for  non-  fendant,  and  the  breach  in  not  pay- 
payment  of  rent,  it  is  sufficient  to  al-  ing  so   much    rent  due."       1  Wms. 
lege    in    the    declaration    that    the  Saund.  233  a,  note  (2). 
plaintiff,  on  such  a  day  and  year,  at  127  Burgess  v.  American  Mortg.  Co., 
such  a  place,  by  a  certain  indenture  115  Ala.   408,   22   So.   282;    Vestal   v. 
made  between  him  of  the  one  part  Ctaig,  25  Ind.  App.  573,  08  N.  E.  752; 
and  the  defendant  of  the  other  part  Ramsey  v.  Johnson,  7  Wyo.  392,  52 
(which  the  plaintiff  brings  here  into  Pac.  1084,  40  L.  R.  A.  690. 
court),  demised  to  the  defendant  cer-  128  gee  ante,  at  notes  11,  12. 
tain  premises   particularly  mention-  129  gee  Mason  v.  Seitz,  36  Ind.  516; 
ed  and  described  in  the  said  inden-  Elmer  v.  Land  Creek  Tp.,  38  Ind.  56; 
ture  (instead  of  setting  out  the  par-  Dubois  v.  Van  Orden,  6  Johns.    (N. 
eels,  as  is  too  frequently  done)   ex-  Y.)  105;  Van  Rensselaer  v.  Bradley, 
cept  as  therein  is  excepted,  to  hold  3   Denio     (N.  Y.)    135,  45   Am.  Dec. 
the  same  to  the  defendant,  except,  451;  Ramsey  v.  Johnson,  7  Wyo.  392, 
etc.,  for  a  certain  term  therein  men-  52  Pac.  1084,  40  L.  R.  A.  690. 
tioned  and  still  unexpired,  yielding  iso  Willard  v.  Tillm.an,  2  Hill    (N. 
the   rent   of  *   *   *   payable  on,  etc.,  Y.)  274;  Comyn,  Landl.  &  Ten.  430;  2 
and  then  state  the  covenant  for  pay-  Chitty,  Pleading  (13th  Am.  Ed.)  564. 


1840 


ACTIONS  FOR  RENT. 


§  295 


jn  part  only,  so  as  to  impose  a  merely  partial  liability  for  rent 
upon  the  assignee.^^i 

It  is  not  necessary  for  the  plaintiff  to  aver  that  he,  or  his 
predecessor  in  title,  was  the  rightful  owner  of  the  premises  at 
the  time  of  the  lease,  since  this  has  no  bearing  upon  the  liability 
for  rent.^32 

Since  the  liability  for  rent  under  an  express  reservation 
thereof,  or  under  a  covenant  to  pay  rent,  is  not  dependent  upon 
occupancy  by  the  lessee,^^-"  it  is  not  necessary  to  allege  such 
occupancy.^33  ^q^  is  it  necessary,  in  an  action  against  an  as- 
signee of  the  lease,  to  allege  that  he  took  possession  under  the 
assignment,  such  taking  of  possession  not  being  requisite  for  the 
imposition  of  liability  on  him.^34 

It  has  been  asserted  that  the  declaration  must  state  the  time 
of  the  commencement  and  the  duration  of  the  lease.' ^^    "Whether 


131  Van  Rensselaer  t.  Jones,  2 
Barb.   (N.  Y.)    643. 

i32Havemeyer  v.  Switzer,  15  Misc. 
629,  37  N.  Y.  Supp.  352;  Kiernan  v. 
Terry,  26  Or.  494,  38  Pac.  671;  Ayotte 
V.  Johnson,  25  R.  I.  403,  56  Atl.  110; 
Stephen,  Pleading  (9th  Am.  Ed.) 
327,  and  ante,  §  78  c  (3). 

132a  See  ante,  §  182  b. 

13S  Bellasis  v.  Burbriche,  1  Ld. 
Raym.  170;  Douglass  v.  Branch  Bank 
of  Mobile,  19  Ala.  659,  54  Am.  Dec. 
207;  Marix  v.  Stevens,  10  Colo.  261, 
15  Pac.  350;  Mayer  v.  Lawrence,  58 
111.  App.  194;  Havemeyer  v.  Switzer, 
15  Misc.  629,  37  N.  Y.  Supp.  352;  Wes- 
ton V.  Ryley,  15  Misc.  638,  37  N.  Y. 
Supp.  216;  Gilhooley  v.  Washington, 
4  N.  Y.  (4  Comst.)  217.  In  Mulford 
V.  Young,  6  Ohio,  294,  it  is  said  that 
the  declaration  must  state  that  de- 
fendant enjoyed  the  premises,  or  that 
the  lessor  tendered  him  the  enjoy- 
ment. No  authority  is  cited  for  the 
statement.  In  Bellasis  v.  Burbriche, 
1  Ld.  Raym,  170,  1  Salk.  208,  a  ten- 
ancy at  will  is  distinguished  in  this 
respect  from  a  tenancy  for  years,  it 


being  said  that,  as  against  a  tenant 
at  will,  occupation  must  be  averred, 
since  It  is  by  reason  of  such  oc- 
cupancy that  he  is  liable.  But  this 
can  be  so  only  when  "the  tenant  is 
chargeable  merely  in  respect  of  his 
occupation."  See  Comyn,  Landl.  & 
Ten.  430.  If  a  tenant  at  will  has 
agreed  to  pay  rent,  he  is,  it  seems, 
liable  by  his  agreement,  and  his  oc- 
cupancy is  necessarily  immaterial. 
See  ante,  §  182  b,  at  notes  829,  829  a. 

134  Comyn,  Landl.  &  Ten.  467;  Wil- 
liams V.  Bosanquet,  1  Brod.  &  B.  238. 
The  decision  in  La  Dow  v.  Arnold,  14 
Wis.  458,  that  an  averment  of  occupa- 
tion by  the  assignee  is  necessary,  is 
based  on  the  theory  that  such  occu- 
pation is  necessary  to  the  imposition 
of  liability  on  the  assignee,  a  view 
which  is  not  in  accord  with  the  au- 
thorities generally.  See  ante,  §  158  a 
(2)    fe). 

■"  135  Pendill  v.  Neuberger,  64  Mich. 
220,  31  N.  W.  177.  See  Post  v.  Blaze- 
witz,  13  App.  Div.  124,  43  N.  Y. 
Supp.  59. 

As  to  averments  in  an  action  for 


§  295  PLEADING.  1841 

this  was  necessary  at  common  law  may  be  doubted,  provided 
the  declaration  showed  that  the  rent  accrued  during  the  ten- 
ancy.i^^  It  is,  however,  and  always  has  been,  a  proper  and  usual 
averment,  and  a  variance  in  the  regard  might  be  fatal,  if  not 
removed  by  amendment.^^? 

It  is  not,  it  seems,  ordinarily  necessary  to  state  whether 
the  lease,  or  the  stipulation  as  to  rent,  was  written  or  oral,  even 
though  a  writing  is  necessary ,i38,i39  i^^t  in  a  common-law  ac- 
tion of  covenant  it  is  necessary  to  state,  expressly  or  by  impli- 
cation, that  the  promise  to  pay  rent  was  in  writing  and  under 
seal.^^°  Under  some  of  the  codes  of  procedure  an  averment  m 
this  regard  might  be  necessary,  and  so  it  has  been  decided 
that  when  the  statute  requires  a  declaration  on  a  written  in- 
strument to  set  out  a  copy,  or  the  legal  effect  thereof,  with 
proper  averments  to  describe  the  cause  of  action,  the  declaration 
must  allege  whether  the  rent  claimed  is  due  under  a  written 
instrument.^  ^^ 

It  was  unnecessary,  under  the  common-law  system  of  plead- 
ing, to  describe  the  premises,  either  in  an  action  of  debt  or  of 
covenant.^^2  Ordinarily,  under  the  code  procedure,  a  brief  de- 
scription of  the  premises  leased  is  included  in  the  complaint,  if 
the  lease  is  not  set  out  therein  in  extcnso,  but  such  a  description 
seems  no  more  necessary  in  an  action  under  the  codes  than  at 
common  law.^^^     If  the  complaint  does  undertake  to  describe  the 

rent  accrued  during  an  extension  of  gested,    be    proven   under    an    aver- 

the  lease,  see  Crystal  Ice  Co.  v.  Mor-  ment  of  a  written  lease,  or  the  mis- 

ris,  160  Ind.  651,  67  N.  E.  502;  Kram-  statement  might  be  cured  by  amend- 

er  V.  Cook,  73  Mass.  (7  Gray)  550.  ment.      Thomas  v.  Nelson,  69  N.  Y. 

136  See  Comyn,  Landl.  &  Ten.  430.  118. 

463;  Turner  V.  Lamb,  14  Mees.  &  W.  i4o  See    Piatt,    Covenants,    546;    1 

412.  Chitty,  Pleading,  364. 

The  date  of  the  lease,  as  named  In  i4i  Bumham  v.  Roberts,  103  Mass. 

the  complaint,  has  bee»  said  to  be  379. 

immaterial.     Woodruff  v.  Butler,  75  1421    Wms.    Saund.    233;    Comyn, 

Conn.  679,  55  Atl.  167.     But  a  differ-  Landl.    &  Ten.    430;    Davies    v.   Ed- 

ent  view  is  taken  in  Locke  v.  Ken-  wards,  3  Maule  &  S.  380;  Van  Rensse- 

nedy,  171  Mass.  204,  50  N.  E.  531.  laer  v.  Bradley,  3  Denio  (N.  Y.)  135, 

137  See  Locke  v.  Kennedy,  171  Mass.  45  Am.  Dec.  451;  Miller  v.  Blow,  68 
204,  50  N.  E.  531.  111.  304. 

138,  130  See  Browne,  Stat,  of  Frauds,  1*3  But  a  motion  to  make  the  com- 
§  505;  1  Chitty,  Pleading,  303.  An  plaint  more  definite  in  this  respect 
oral  lease  might,  it  has  been  sug-    might  be  entertained.    See  Post  v. 

L.  and  Ten.  116. 


1842  ACTIONS  FOR  RENT.  §  296 

premises,  an  error  in  this  regard  is  fatal,  unless  corrected  by 
amendment.^  ^•^ 

§  296.    Set-off,  recoupment,  and  counterclaim. 

Under  the  statutes  of  set-olf  and  counterclaim  existent  in 
most  jurisdictions,  by  which  a  defendant  in  an  action  on  a  con- 
tract is  allowed  to  assert,  in  reduction  of  plaintiff's  demand,  a 
cross  demand  of  a  contractual  character  against  the  plaintiff, 
the  defendant  in  an  action  for  rent,  regarding  it  as  an  action 
on  the  contract  to  pay,  imiy  no  doubt  assert  cross  demands  of 
a  contractual  character,  subject  to  the  restrictions  which  may 
exist  under  the  particular  statute  as  regards  unliquidated  claims. 
That  he  may  or  may  not  do  this  seems,  however,  to  have  been 
rarely  the  subject  of  express  decision,!-*^  and  the  discussion  as 
to  the  right  of  the  tenant  to  assert  a  cross  demand  has  centered 
rather  upon  the  question  whether  such  demand  is  one  which  is 
so  connected  with  the  contract,  transaction,  or  subject-matter 
involved  in  the  suit,  as  to  be  a  proper  subject  for  "recoupment," 
as  distinguished  from  "set-off,"  or  its  statutory  equivalent. 

The  later  cases  in  this  country  are  practically  in  unison 
in  holding  that  in  an  action  for  rent  the  defendant  may,  even 
apart  from  statute,  recoup  the  damages  caused  by  the  plain- 
tiff's breach  of  any  covenant  of  the  lease,^'*^  a  doctrine  which 

Blazewitz,  13  App.  Div.  124,  43  N.  Y.        i^s  That  he  may  do  so  is  recogniz- 

Supp.  59;   Gust.aveson  v.  Otis,  57  N.  ed  in  Fillebrown  v.  Hoar,  124  Mass. 

Y.  St.  Rep.  797,  27  N.  Y.  Snpp.  280.  5S0;    McVicker  v.   Dennison,   45   Pa. 

H4  Hoar  V.  Mill,  4  Maule  &  S.  470;  390;  Nickols  v.  Jones,  16G  Pa.  599,  31 

Morgan  v.   Edwards,   6  Taunt.   394;  Atl.  329;   Koegel  v.  Michigan  Trust 

Miller  v.  Blow,  68  111.  304.  Co.,  117  Mich.  542,  76  N.  W.  74;  Hurst 

In  Morningstar  v.  Querens,  142  v.  Benson,  27  Tex.  Civ.  App.  227,  65 
Ala.  186,  37  So.  825,  it  was  decided  S.  W.  76.  Compare  Nichols  v.  Dusen- 
that  when  the  complaint  described  bury,  2  N.  Y.  (2  Comst.)  283. 
the  property  as  "the  building  which  i46  Horton  v.  Miller,  84  Ala.  537,  4 
was  on  the  date  of  the  demise  of  said  So.  370;  City  of  New  York  v.  Mabie, 
property  occupied  by  A  as  a  grocery  13  N.  Y.  (3  Kern.)  157;  Kelsey  v. 
store,"  not  averring  that  A  was  the  Ward,  38  N.  Y.  83;  Ely  v.  Spiero,  28 
exclusive  occupant,  evidence  of  a  App.  Div.  485,  51  N.  Y.  Supp.  124;  El- 
lease  which  described  the  property  wood  v.  Porkel,  35  Hun  (N.  Y.)  202; 
as  the  building  "which  is  now  oc-  Brittain  v.  Griggs,  88  Ga.  232,  14  S. 
cupied  in  part  by  A  as  a  grocery  and  E.  609;  Crane  v.  Hardman,  4  E.  D. 
B  as  a  saloon"  did  not  involve  a  Smith  (N.  Y.)  339;  Hirsch  v.  Olmes- 
variance.  dahl,  38  Misc.  757,  78  N.  Y.  Supp.  832; 


,  296  SET-OFF  AKD  RECOUPMENT.  1843 

has  been  applied  with  especial  frequency  in  the  case  of  breach 
by  the  landlord  of  a  covenant  to  repair  the  premises  or  to  make 
improvements  thereon.i^^  Such  a  claim  for  breach  of  covenant 
has  also  been  regarded  as  arising  out  of  the  contract  or  transac- 
tion set  forth  in  the  complaint  and  as  connected  with  the  sub- 
ject  of  the  action,  within  the  meaning  of  the  statute  of  counter- 
claim.148     Likewise,  damages  for  breach  of  a  covenant  for  quiet 

Stewart  v.  Lanier  House  Co.,  75  Ga.    Supp.  891;  Young  v.  Burhans,  80  Wis. 
582;    Pepper  v.  Rowley,  73   111.  262;     438,    50    N.    W.    343;     Wilkerson    v. 
Bloodworth  V.  Stevens.  51  Miss.  475;    Farnham.  82  Mo.  672;   Meredith  Me- 
Pickens  V.  Bozell,  11  Ind.  275.  WHere    chanics'    Ass'n    v.    American    Twist 
the    statute    expressly    confines    the  Drill     Co..      67      N.      H.      450       39 
right  of  recoupment  to  an  action  on    Atl.     330;      New     York     &     Texas 
a  contract  not  under  seal,  the  lessee   Land  Co.  v.  Cruger  (Tex.  Civ.  App  ) 
under  a  sealed  lease  cannot,  it  has    27  S.  W.  212;  Coleman  v.  Bunce   37 
been   decided,   recoup   for   the   land-   Tex.  171;   Breese  v.  McCann,  52  Vt. 
lord's  breach  of  covenant.       Price's    498;   Prescott  v.  Otterstatter,  85  Pa. 
Ex'r  V.  Reynolds,  39  N.  J.  Law.  171;    534;  Cheuvront  v.  Bee.  44  W.  Va.  103. 
Hunter  v.  Reiley.  43  N.  J.  Law,  480.    28  S.  E.  751;  Beardsley  v.  Morrison. 
Where   the   lessor   covenants   that    18  Utah.  478.  56  Pac.  303.  72  Am.  St. 
the  lessee  shall  have  the  right  to  re-    Rep.   795;    Westlake   v.   DeGraw.  25 
move  fixtures  annexed  by  him.   the    Wend.     (N.    Y.)    669;     Whitbeck    v. 
lessee  may  counterclaim  for  damages    Skinner,  7  Hill   (N.  Y.)    53;   McCoy 
in  case  the  lessor  prevents  their  re-   v.  Oldham,  1  Ind.  App.  372.  27  N.  E. 
moval      Bruce  v.  Welch,  6  N.  Y.  St.    647,  50  Am.  St.  Rep.  208;  Deuster  v. 
Rep    617      He  cannot   do  so,   it  ap-   Mittag,  105  Wis.  459,  81  N.  W.  643. 
Dears   if  the  lease  contains  no  cove-       In  Union  Water  Power  Co.  v.  Pin- 
nant  'on   the    subject,   although    the    gree.  91  Me.  440.  40  Atl.  333.  it  was 
lessee  has  the  right  to  remove  them    decided  that  when  the  lessor  failed 
because  they  are  trade  fixtures,  the   to  reconstruct  the  thing  leased  after 
le-^see's  claim  for  damages  being  in   its  destruction  by  fire,  as  required  by 
such  case  founded  on  tort.     City  of   his  covenant,  such  breach  of   cove- 
New  York  V.  Parker  Vein  Steamship   nant  could  be  set  up  by  way  of  re- 
Co    21  How   Pr    (N.  Y.)  289.  coupment  in  an  action  for  the  rent, 
i'47  Culver  V.  Hill,   68   Ala.   66.  44    and   that   it  would,   in   the   absence 
Am   Rep   134-  Vandegrift  v.  Abbott,   of  evidence  to  the  contrary,  be  pre- 
75  Ala   487-  Varner  v.  Rice.  39  Ark.    sumed   that  the  rent  for  the  period 
344-    Lewis'  v    Chisolm,   68  Ga.   40;    after  the  destruction  and  the  dam- 
Lunn  V.  Gage.  37  HI.  19.  87  Am.  Dec.    ages  accruing  from  failure  to  repair 
235-    Kiernan  v.   Germain.  61   Miss,    were  equal. 

498-   Myers  v.  Burns,  35  N.  Y.  269;        i48  Cook   v.    Soule.   56   N.   Y.   420; 
Reiner  v.   Jones,   38   App.   Div.   441.   Pioneer  Press  Co.  v.  Hutchinson.  63 
56    N.    Y.    Supp.    423;    Uhlfelder    v.    Minn.  481,  65  N.  W.  938. 
Loughran,   54  Misc.   593.   104   N.   Y. 


1844                                        ACTIONS  FOR  RENT.  §  296 

enjoyment  are,  by  a  number  of  decisions,  the  subject  of  recoup- 
ment.148 

While  an  eviction  would  ordinarily  constitute  a  breach  of  the 
covenant  for  quiet  enjoyment,  express  or  implied,  it  has  been  de- 
cided in  some  jurisdictions  that  a  mere  trespass  by  the  landlord 
does  not  arise  from  the  contract  or  transaction  which  is  the  subject 
of  the  action  for  rent,  and  is  consequently  not  available  by  way 
of    recoupment.^  ^^     In    view    of    the    ordinarily    accepted    doc- 

i4»  City  of  New  York  v.  Mabie,  13  rather   than    by   a    separate    action. 

N.  Y.  (3  Kern.)  151,  64  Am.  Dec.  538;  Riley  v.  Hale,  158  Mass.  240,  33  N.  E. 

Collins  V.  Lewis,  53  Minn.  78,  54  N.  491. 

W.  1056,  19  L.  R.  A.  822;  Holbrook  V.  i5o  So    it    has    been    decided    that 

Young,  108  Mass.  83,  11  Am.  Rep.  310;  there  can  be  no  recoupment  of  a  de- 

Eldred  v.  Leahy,  31  Wis.  546;  Hanley  mand  against  the  landlord  on  account 

V.  Banks,  6  Okl.  79,  51  Pac.  664;  Mc-  of  the  overflow  of  the  leased  premises 

Alester  v.  Landers,  70  Cal.  79,  11  Pac.  by  rcr;son  of  a  leak  in  pipes  in  an- 

505;  Abrams  v.  Watson,  59  Ala.  524;  other  part  of  the  building  (Edgerton 

Harmont  v.  Sullivan,  128  Iowa,  309,  v.    Page,    20   N.   Y.    281;    Hanley   v. 

103  N.  W.  951;   Kitchen  Bros.  Hotel  Banks,  6  Okl.  79,  51  Pac.  664),  on  ac- 

Co.  V.  Philbin,  2  Neb.  UnofE.  340,  96  count    of    damage    to    the    tenant's 

N.  W.  487;  Moffat  v.  Strong,  22  N.  Y.  crops  caused  by  the  landlord  (Brown 

Super.  Ct.   (9  Bosw.)   57;  Ludlow  v.  v.    Alfriend,    61    Ga.    12;    Hulme   v. 

McCarthy,  5  App.  Div.  517,  38  N.  Y.  Brown,    50    Tenn.     [3    Heisk.]     679. 

Supp.  1075.  Contra,  Johnson  v.  Aldridge,  93  Ala. 

In  McKesson  v.  Mendenhall,  64  N.  77,  9  So.  513),  or  on  account  of  the 

C.   286,   it  was  decided  that  as  the  landlord's    wrongful    entry    on    the 

lease  "implied  an  obligation  on  the  premises  (Bartlett  v.  Farrington,  120 

part  of  the  plaintiffs  (the  lessors)  to  Mass.  284;  Livingston  v.  L'Engle,  27 

secure  the  defendants   (the  lessees)  Fla.  502,  8  So.  728;  Dimmock  v.  Daly, 

the  possession  and  enjoyment  of  the  9  Mo.  App.  354;  Levy  v.  Bend,  1  E. 

demised  premises,"  the  latter  could  D.  Smith  [N.  Y.]  169) ;  unauthorized 

set  up,  as  a  statutory  counterclaim,  or  negligent  repairs  by  him  (Faberv. 

that  there  was  an  outstanding  para-  Phillips,  26  Misc.  723,  56  N.  Y.  Supp. 

mount     title     whose     owners     had  1028;  Cram  v.  Dresser,  4  N.  Y.  Super, 

brought  suit  against  them  for  dam-  Ct.  [2  Sandf.]  120;  Goebel  v.  Hough, 

ages  for  the  occupation  of  the  land  26  Minn.  252,  2  N.  W.  847,  37  Am. 

by  them.     The  filing  of  the  counter-  Rep.  407),  injuries  wantonly  done  by 

claim    was    apparently    regarded    as  him    to    personal    property    on    the 

transforming  the  action  into  an  equi-  premises    (Drake  v.    Cockroft,   4   E. 

table  proceeding  and  the  owner  of  the  D.    Smith     [N.    Y.  ]    34;     Willis    v. 

paramount  title  was   ordered  to  be  Branch,   94  N.  C.  142,   55  Am.  Rep. 

made  a  party.  597),  or  the   conversion  by  him  of 

The  tenant  is  obviously  under  no  such  property  (Ludlow  v.  McCarthy, 

obligation  to  assert  the  breach  of  the  5  App.  Div.  517,  38  N.  Y.  Supp.  1075; 

covenant    by    way    of    counterclaim  Willis  v.   Branch,  94   N.  C.   142,   55 


§  296 


SET-OFF  AND  RECOUPMENT. 


1845 


trine,  that  damages  for  breach  of  the  covenant  of  quiet  enjoyment 
are  the  subject  of  recoupment,  these  decisions  are  to  be  regarded, 
it  seems,  as  assuming  that  a  trespass  by  the  landlord,  not  constitut- 
ing an  eviction,  is  not  a  breach  of  the  covenant  for  quiet  enjoyment, 
ordinarily  implied  from  the  relation  of  tenancy,^  ^^  a  view  which 
would  not  everywhere  be  accepted.^  ^-  If  a  mere  trespass  by  the 
landlord  is  to  be  regarded  as  a  breach  of  such  covenant,  it  would 
seem  that  damages  therefor  should  be  regarded  as  the  subject  of 
recoupment,  provided  it  is  properly  pleaded  as  constituting  a 
breach  of  covenant  and  not  merely  as  a  trespass,  and  there  are 
occasional  decisions  apparently  to  that  effect.^  ^^ 

Damages  arising  from  the  fraud  of  the  lessor  in  connection 
with  the  making  and  acceptance  of  the  lease  have  been  decided 
to  be  a  subject  for  recoupment  in  an  action  for  rent.^^^ 


Am.  Rep.  597;    Hembrock  v.  Stark. 
53  Mo.  588). 

151  In  Avery  v.  Dougherty,  102  Ind. 
443,  2  N.  E.  123,  52  Am.  Rep.  680,  it 
Is  explicitly  stated  that  a  mere  tres- 
pass by  the  landlord,  not  being  a 
breach  of  the  implied  covenant  of 
quiet  enjoyment,  is  not  the  subject 
of  recoupment. 

In  Boreel  v.  Lawton,  90  N.  Y.  293, 
43  Am.  Rep.  170,  it  was  decided  that, 
there  having  been  no  relinquish- 
ment of  possession  by  the  tenant  on 
account  of  acts  of  disturbance  by  the 
landlord,  it  could  not  be  asserted  that 
that  there  was  a  constructive  evic- 
tion, and  that  there  was,  consequent- 
ly, no  breach  of  the  covenant  for 
quiet  enjoyment,  which  could  be  as- 
serted by  way  of  counterclaim.  To 
the  same  effect,  see  George  A.  Fuller 
Co.  v.  Manhattan  Const.  Co.,  44  Misc. 
219,  88  N.  Y.  Supp.  1049. 

152  See  ante,  §  79  d  (1). 

153  In  Keating  v.  Springer,  146  111. 
481,  34  N.  E.  805,  22  L.  R.  A.  544,  37 
Am.  St.  Rep.  175,  it  was  said  that, 
though  the  tenant  could  not  assert 
that  he  was  evicted,  since  he  remain- 
ed in  possession  (ante,  §  185  d),  he 


could  set  up,  by  way  of  recoupment, 
a  claim  for  injury  caused  by  the  acts 
which  would  have  justified  an  asser- 
tion of  eviction  had  they  been  fol- 
lowed by  abandonment.  And  Abrams 
v.  Watson,  59  Ala.  524,  is  to  the  ef- 
fect that  a  trespass,  as  by  removal 
of  fences,  is  the  subject  of  recoup- 
ment. In  Goebel  v.  Hough,  26  Minn. 
252,  2  N.  W.  847,  37  Am.  Rep.  407, 
it  is  decided  that  a  claim  that  the 
lessor  wrongfully  interfered  with  the 
lessee's  enjoyment  by  entering  with- 
out permission  and  making  repairs 
during  the  time  of  the  accrual  of  the 
rent  sued  for  "is  connected  with  the 
subject  of  the  action  within  the  stat- 
ute of  counterclaim."  In  Newport 
News  &  O.  P.  R.  &  Elec.  Co.  v.  Bick- 
ford.  105  Va.  182,  52  S.  E.  1011,  it 
was  decided  that  a  claim  on  account 
of  trespasses  by  the  landlord  was 
"based  upon  matters  directly  connect- 
ed with,  and  injuries  growing  out  of, 
the  contract  sued  on  by  plaintiff,"  so 
as  to  come  within  the  local  statute. 

154  Allaire  v.  Whitney,  1  Hill  (N. 
Y.)  484;  Whitney  v.  Allaire,  4  Denio, 
5S4,  1  N.  Y.  (1  Comst.)  305;  Barr  v. 
Kimball,  43  Neb.  766,  62  N.  W.  196. 


1846  ACTIONS  FOR  RENT.  §  296 

IMatters  growing  out  of  an  agreement  between  the  parties  sub- 
sequent to  the  lease  do  not,  it  seems,  arise  out  of  the  contract 
or  subject-matter  of  the  action,  so  as  to  be  a  proper  subject  of 
recoupment,  and  so  it  has  been  decided  that  damages  for  breach 
of  a  subsequent  contract  settling  certain  controversies  could  not 
be  so  made  the  subject  of  a  cross  demand.^ ^^  A  like  decision 
has  been  made  as  to  the  tenant's  claim  on  account  of  the  land- 
lord's promise  to  share  the  expense  of  repairs,  provided  the  ten- 
ant would  make  them;^^^  but  in  apparent  opposition  to  this  latter 
decision  are  several  cases  in  which  a  cross  demand,  on  account  of 
the  expenditures  made  by  the  tenant  on  the  strength  of  the  land- 
lord's promise  to  pay  therefor,  has  been  allowed,^ ^'^  These  latter 
cases  are,  perhaps,  to  be  explained  by  reference  to  the  statutes 
of  set-off  of  the  particular  states,  authorizing  a  cross  demand 
against  the  plaintiff  based  on  a  contractual  claim  entirely  dis- 
connected with  the  subject  of  the  action. 

A  breach  of  covenant  on  the  part  of  the  landlord  need  not, 
in  order  that  it  may  be  the  subject  of  recou[)mont  or  counter- 
claim as  against  a  claim  for  a  particular  installment  of  rent, 
have  accrued  during  the  time  of  accrual  of  such  installment,  and 
so  the  tenant,  though  he  has  paid  one  or  more  installments  of 
rent  since  the  breach,  may  assert  such  breach  in  an  action  by  the 
landlord  for  a  subsequent  installment.^'^^  And  so  the  tenant  may 
assert  a  breach  of  the  covenant  for  quiet  enjoyment  in  an  action 
for  an  installment  of  rent  which  accrued  before  such  breach.^^* 
If  the  covenant  by  the  landlord  is  continuous  in  its  nature,  and 
consequently  susceptible  of  repeated  breaches,  distinct  breaches 

may  be  asserted  in  successive  actions  for  separate  installments  of 
rcnt.160 

See  Cage  v.  Phillips,  38  Ala.  382;  Sis-  kerson  v.  Farnham,  82  Mo.  672  (sem- 

son  V.  Kaper,  105  Iowa,  599,  75  N.  W.  ble) ;  Trathen  v.  Klpp,  15  Colo.  App. 

490.  426,  62  Pac.  962  (semble).     See  Mann 

155  Collins  V.  Karatopsky,  36  Ark.  v.  Fuller.  63  Kan.  664,  66  Pac.  627. 

316.  55  L.  R.  A.  560,  88  Am.  St.  Rep.  256. 

ir.6  Phillips  V.  Sun  Dyeing  Bleach  &  i58  Cook  v.  Soule,  56  N.  Y.  420;  Mc- 

Cal.  Co..  10  R.  I.  458.     And  see  Pow-  Alester  v.  Landers,  70  Cal.  79,  11  Pac. 

ers  V.  Cope.  93  Ga.  248,  18  S.  B.  815,  505.     And  see  Benkard  v.  Babcock,  25 

apparently  to  the  same  effect.  N.  Y.  Super.  Ct.  (2  Rob.)  175,  17  Abb. 

1"  MeCtillnch  v.  Dobson,  133  N.  Y.  Pr.  421.  27  How.  Pr.  391. 

114,  30  N.  E.  641;  Jeff  ers  v.  Bantley,  i59  Tiley  v.  Moyers,  43  Pa.  404.  And 

47  Hun  (N.  Y.)  90;  Hausman  v.  Mul-  see  cases  cited  ante,  note  149. 

fc^ran.  68  Minn.  48,  70  N.  W.  866;  Wil-  iso  Block  v.  Ebner,  54  Ind.  544. 


§  296 


SET-OFF  AND  RECOUPMENT.  1847 


It  has  been  decided  that  there  can  be  no  recoupment  if  the 
breach  by  the  landlord  of  his  contract  occurred  after  the  com- 
mencement of  the  action  for  rent.i^^  But  the  statute  of  the  par- 
ticular jurisdiction  may  justify  a  contrary  view.i'52 

To  what  extent,  in  an  action  for  rent  by  a  transferee  of  the  re- 
version or  of  the  rent,  the  tenant  may  assert  a  right  of  set-off  or 
recoupment  which  he  might  have  asserted  against  the  transferor, 
does  not  clearly  appear  from  the  decisions.  In  cases  where  a  de- 
mand by  the  defendant  against  an  assignor  is  asserted  in  an 
action  by  an  assignee,  as  being  the  subject  of  a  set-off  rather 
than  by  way  of  recoupment,  that  is,  on  the  theory,  not  that 
the  two  demands  arise  from  the  same  contract  or  transaction, 
but  rather  that  they  are  mutual  demands  between  the  parties 
concerned  in  the  action,  the  general  rule  is  that  the  claim  as- 
signed, as  well  as  that  which  is  asserted  by  way  of  set-off,  must 
have  been  due  at  the  time  of  the  assignment.ies  This  rule  has 
been  held  to  prevent  a  lessee  from  asserting,  as  against  an  as- 
signee of  rent  to  become  due,  a  debt  due  from  the  assignor  to  the 
lessee  at  the  time  of  the  assignment,!^^  and  the  same  rule  would 
seem  to  apply  in  the  case  of  an  action  by  the  transferee  of  the 
reversion  to  which  the  rent  is  incident.i^^     But  when  the  claim 

161  Harger  v.  Edmonds,  4  Barb.  i65  This  is,  it  seems,  necessarily  im- 
(N  Y.)  256.  P^i6<i  ill  Benedict  v.  Citizens'  Bank, 

162  Hyman  v.  Jockey  Club  Wine,  54  Neb.  113,  74  N.  W.  407,  when  the 
Liquor  &  Cigar  Co.,  9  Colo.  App.  299,  transferee  of  the  reversion  was  held 
48  Pac.  671.  to  be  entitled  to  the  entire  rent  ac- 

163  See  Bradley  v.  Smith's  Sons,  98  cruing  after  the  transfer,  without 
Mich.  449,  57  N.  W.  576,  23  L.  R.  A.  deduction,  though  at  the  date  of  the 
305,  39  Am.  St.  Rep.  565;  Richards  lease  the  lessor  owed  the  lessee  more 
V.  La  Tourette,  53  Hun  (N.  Y.)  623;  than  the  aggregate  rent  for  the 
Fuller  V.  Steiglitz,  27  Ohio  St.  355,  whole  term.  The  question  actually 
22  Am.  Rep.  312.  But  this  rule  has  discussed  in  this  case  was  whether 
been  said  not  to  be  applicable  if  the  the  purchaser  of  the  reversion  was 
assignor  is  insolvent,  since,  if  the  bound  by  a  provision  in  the  lease 
set-off  is  not  allowed  in  such  case,  that  the  monthly  rent  should  be  paid 
the  defendant  will  lose  his  claim,  by  the  lessee's  crediting .  the  lessor 
Armstrong  v.  Warner,  49  Ohio  St.  on  its  books  with  the  amount  of  the 
376,  31  N.  E.  877,  17  L.  R.  A.   466;  rent. 

Pomeroy,  Remedies,  §  163.  In    Strousse    v.    Bank    of    Clear 

i64Koegel  V.   Michigan  Trust  Co.,  Creek  County,  9  Colo.  App.   478,  49 

117   Mich.    542,   76  N.  W.   74.       But  Pac.    260,    it    was    decided    that    al- 

Adams   v.  Leavens,  20  Conn.  73,  is  though  the  lessee  has,  by  the  terms 

apparently  contra.  of  the  lease,  a  right  to  set  off,  against 


1848  ACTIONS  FOR  RENT.  §  296 

asserted  hy  the  defendant  is  one  growing  out  of  the  contract  or 
transaction  which  is  the  subject  of  the  action,  as,  for  instance, 
when  the  lessee  asserts,  in  an  action  for  rent  by  a  transferee  of 
the  reversion,  a  breach  by  the  original  lessor  of  a  covenant  to 
make  improvements,  it  may  perhaps  be  questioned  whether  there 
is  any  such  requirement,  as  in  the  former  case,  that  both  the 
claim  sued  on  and  that  asserted  by  defendant  must  have  been 
due  at  the  time  of  the  assignment  or  transfer,  since  the  defen- 
dant's right  to  assert  his  claim  by  a  cross  demand  might  be 
regarded  as  based  upon  the  common-law  doctrine  of  recoupment, 
which  is  itself  formulated  on  and  governed  by  equitable  princi- 
ples, and  not  upon  the  statutes  of  set-off  or  counterclaim,  on  the 
language  of  which  the  decisions  previously  cited  seem  to  be  based, 
and  it  might  be  considered  as  inequitable  that  by  the  transfer 
of  the  right  to  rent  the  lessee  should  be  deprived  of  this  pro  tanto 
defense.^  ^^  A  cross  demand  existing  against  a  transferor  of 
the  reversion,  based  upon  a  stipulation  of  which  the  transferee 
has  neitlier  actual  notice  nor  constructive  notice  from  the  record 
or  otherwise,  would  apparently  not  be  available  as  against  the 
transferee,  at  least  if  a  purchaser  for  value,  since  such  a  purchaser 
of  an  interest  in  land  is  not  affected  by  secret  equities.^  °'^ 
In  a  majority  of  cases,  perhaps,  the  covenant  for  the  breach  of 
which  the  tenant  undertakes  to  assert  a  right  to  recoup  would  be 
a  continuing  covenant,  such  as  one  for  repair,  so  that  the  right 

the  rent  which  may  become  due,  in-  transfer  of  the  reversion,  a  claim  for 
debtedness  of  the  lessor  to  him,  then  improvements  made  by  him  under  a 
or  thereafter  existing,  he  cannot  set  contract  with  the  original  lessor, 
off,  as  against  a  purchaser  under  a  i^e  gee  Fuller  v.  Steiglitz,  27  Ohio 
trust  deed  given  by  the  lessor,  in-  St.  355,  22  Am.  Rep.  312.  In  Abrams 
debtedness  contracted  after  he,  the  v.  Watson,  59  Ala.  524,  it  is  apparent- 
lessee,  knew  of  the  trust  deed.  This  ly  asserted  that  the  alienees  of  the 
seems  to  be  an  application  of  the  lessor  take  subject  to  the  right  of 
rule  that  a  set-off,  to  be  available  recoupment  on  account  of  the  les- 
against  an  assignee,  must  be  due  and  sor's  acts,  but  the  opinion  is  decid- 
payable   at   the   time  when   the   de-  edly  obscure. 

fendant   received    notice    of   the   as-  The  lessee  may  obviously  recoup  as 

signment.      See  25  Am.  &  Eng.  Enc.  against  the  lessor's  executor  to  the 

Law  (2d  Ed.)  530.  same   extent  as  against  the   lessor. 

In  Bell  V.  Ritner,  33  Ind.  App.  6,  Green  v.  Bell,  3  Mo.  App.  291. 

70  N.  E.  549,  it  was  decided  that  the  igt  See  Juvenal  v.  Patterson,  10  Pa. 

lessee  could  not  set  off,  as  against  a  282. 
claim    for    rent   accruing   after    the 


5  298  PRIOR  DEMAND.  184» 

of  recoupment  would  exist  against  the  transferee  of  the  reversion 
or  of  the  rent,  as  for  breaches  occurring  in  his  time,  without 
reference  to  any  breaches  that  may  have  occurred  in  the  time 
of  the  transferor. 

§  297.    Limitations. 

The  right  of  action  for  rent  may  be  barred  by  limitations.  The 
question  of  the  applicability  of  a  general  statute  of  limitations  in 
such  a  case  is  obviously  a  question  of  the  construction  of  the  par- 
ticular statute.  That  an  action  for  rent  is  not  one  for  the  recovery 
"of  real  property  and  of  the  rents  and  profits"  within  a  limita- 
tion statute  is  unquestionable.^^^ 

The  provisions  of  the  English  statute  of  limitatons,  fixing  the 
time  for  the  bringing  of  a  suit  "for  arrearages  of  rent,"  were 
held  not  to  apply  v/hen  the  rent  was  reserved  by  a  lease  under  the 
seal  of  the  lessee,^^®  and  the  same  view  has  been  taken  in  this 
country  of  a  local  statute  similarly  expressed.^ '''^  An  action 
of  debt  for  use  and  occupation  has  been  regarded  as  one  of  "debt 
for  arrearages  of  rent,"  within  a  statute  on  the  subject.^^^  Even 
in  the  absence  of  a  statute  of  limitations  applicable  to  an  action 
for  rent,  payment  of  rent  may  be  presumed  after  the  lapse  of 
twenty  years.^'^^  j^^it  a  mere  delay  in  enforcing  the  claim  by  suit, 
if  not  within  the  statute  of  limitations,  will  not  affect  his  right 
of  action.i'^3 

§  298.    No  prior  demand  necessary. 

The  rule  ordinarily  applicable  to  contracts  for  the  payment  of 
money,  that  it  is  the  duty  of  the  debtor  to  seek  out  the  creditor 
and  tender  him  the  money,  and  that  no  demand  on  the  part  of 

168  Tibbetts  v.  Morris,  42  Iowa,  120.    Hipster,  33  Pa.  435,  75  Am.  Dec.  612. 

109  Freeman  V.  Stacy,  Hutton,  109;  i^i  Elder  v.  Henry,  34  Tenn.  (2 
2   Wms.   Saund.    65   a,   note    (8)    to    Sneed)   81. 

Hodsden  v.  Harridge;  Angell,  Limi-       172  Lyon  v.  Odell,  65  N.  Y.  28;  Bank 
tations,   §    87.  of  Troy  v.  Hedorn,  48  N.  Y.  260;  St 

170  Davis  V.  Shoemaker,  1  Rawle  Mary's  Church  v.  Miles,  1  Whart. 
(Pa.)  135;  Buffum  v.  Deane,  70  (Pa.)  229.  See  ante,  §  177  a,  at  notes 
Mnss.  (4  Gray)  385;  Bailey  v.  Jack-   401-403. 

son.  16  Johns.  (N.  Y.)  210,  8  Am.  Dec.        173  Ahrns  v.  Chartiers  Valley  Gas 
309.     See  St.  Mary's  Church  v.  Mile?,    Co..  188  Pa.  249,  41  Atl.  739. 
1  Whart.    (Pa.)    229;    McQuesney  v. 


1850  ACTIONS  FOR  RENT.  X  299 

the  creditor  is  necessary  to  fix  the  liability  of  the  debtor  for  non- 
payment, applies  in  full  force  in  connection  with  the  claim  for 
rent,  and  no  demand  is  necessary  before  the  commencement  of  an 
action  to  recover  the  rent/'^^  and  this  is  the  case  when  the  rent 
is  payable  by  the  furnishing  of  supplies  or  the  performance  of 
services  as  well  as  when  it  is  payable  in  money.^'^^'  ^'^^  No  doubt 
a  contrary  intention  may  be  shown  by  or  inferred  from  the 
wording  of  the  lease. 

§  299.    Joinder  of  causes  of  action  and  defenses. 

Even  at  common  law  a  cause  of  action  for  breach  of  a  cove- 
nant to  pay  rent  might  be  joined  with  a  cause  of  action  against 
the  same  defendant  for  breach  of  another  covenant  of  the  lease, 
the  general  rule  being  that  causes  of  action  might  be  joined  when 
the  same  plea  might  be  pleaded  and  the  same  judgment  rendered 
as  to  each.  Such  joinder  is  obviously  allowable  under  modern 
code  provisions  authorizing  the  joinder  of  all  causes  of  action 
ex  contraciu,  and  under  these  provisions  a  cause  of  action  for  rent 
may  presumably  be  joined  with  other  causes  of  action  to  an  extent 
not  authorized  at  common  law.^^''  It  has  been  decided  that 
under  a  statute  providing  that  several  causes  of  action  may  be 
joined  if  they  arise  out  of  contracts,  express  or  implied,  a  cause 
of  action  for  rent  may  be  joined  with  one  for  recovery  of  money 
paid  by  mistake,^'^^  or  with  one  for  breach  of  covenant  to  make 
repairs.^ '^^  A  claim  by  the  landlord  for  rent  and  one  for  ad- 
vances to  the  tenant  have  been  regarded  as  so  similar  in  character 
as  to  justify  their  joinder.^s*^ 

174  Gilbert,  Rents,  142;  Grobham  v.  Van  Rensselaer  v.   Gallup,   5   Denio 

Thornborough,    Hob.    82;    Clarke    v.  (N.  Y.)  454. 

Charter,  128  Mass.  483;  Wineman  v.  177  An  action  for  rent  and  one  to 
Hiighson,  44  111.  App.  22  (action  by  forfeit  the  lease  for  nonpayment  can- 
assignee  of  rent) ;  McMurphy  v.  not  be  joined,  it  has  been  held,  the 
Minot,  4  N.  H.  251;  Burnham  v.  claims  being  inconsistent.  Owens  v. 
Dunklee,  34  N.  H.  334;  Farley  v.  Hickman,  2  Disn.  (Ohio)  471. 
Craig,  11  N.  J.  Law  (6  Halst.)  262;  its  oimstead  v.  Dauphiny,  104  Cal. 
Gruhn    v.    Gudebrod    Bros.    Co.,    21  635,  38  Pac.  505. 

Misc.  528,  47  N.  Y.  Supp.  714;  Royer  179  Von  Berg  v.  Goodman,  85  Ark. 

V.  Ake,  3  Pen.  &  W.  (Pa.)  461.  605,  109  S.  W.  1006,  16  L.  R.  A.   (N. 

175,  176  Livingston  v.  Miller,  11  N.  S.)   984. 

Y.  (1  Kern.)  80;  Remsen  v.  Conklin,  isoRagsdale   v.    Kinney,    119   Ala. 

18    Johns.    (N.    Y.)    447;    Packer   v.  454,  24  So.  443. 
Cockayne,  3  G.  Greene  (Iowa)   111; 


§  300 


SUCCESSIVE  INSTALLMENTS.  1S51 


There  have  been  occasional  decisions  as  to  whether  two  or 
more  defenses  to  one  action  for  rent  could  be  asserted  together  J  ^^ 

§  300.    Actions  for  successive  installments. 

An  action  can  be  brought  for  those  installments  of  rent  only 
which  are  due  and  payable  at  the  time  of  bringing  suit.i82  B^^t 
it  has  been  decided  that,  under  a  statute  allowing  the  filing 
of  a  supplemental  petition  alleging  material  facts  happening  since 
the  former  pleading  was  filed,  judgment  may  be  asked  for  rent 
falling  due  after  the  commencement  of  the  suit.^^^ 

After  bringing  an  action  for  one  installment  of  rent,  and  even 
after  recovery  of  a  judgment  therefor,  an  action  for  another  in- 
stallment or  for  other  installments,  falling  due  after  the  com- 
mencem.ent  of  the  previous  action,  may  be  brought.i^^  But  all 
the  installments  of  rent  already  due  constitute  but  a  single 
cause  of  action,  and  if  suit  is  brought  for  but  a  portion  of  the 
installments  due,  a  subsequent  action  cannot  be  brought  for  the 
balance.^^'^ 

isi  See  Hausman   v.  Mulheran,  68  449;    Schuricht  v.  Broadwell,  4   Mo. 

Minn.  48,  70  N.  W.  866;  Minneapolis  App.  160;   Barnes  v.  Blaclc  Diamond 

Co-operative    Co.   v.    Williamson,    51  Coal   Co.,   101    Tenn.    354,    47    S.   W. 

Minn.  53,  52  N.  W.  986,  38  Am.  St.  498;    Bath  v.   Lindenmeyer,   1  Wyo. 

Rep.  473;   Kline  v.  Hanke,  14  Mont.  240;  Racke  v.  Anheuser-Busch   Brew. 

361,  36  Pac.  454.  Ass'n,  17  Tex.  Civ.  App.  167,  42   S. 

i82Duryee  v.  Turner,  20  Mo.  App.  W.  774;  Underhill  v.  Ctollins,  60  Hun, 

34;  Stanley  v.  Turner,  68  Vt.  315,  35  585,  15  N.  Y.  Supp.  495;   Holthausen 

Atl.   S21;    Miller  v.  Lancaster   (Tex.  v.  Kells,   18  App.  Div.  80,  45   N.  Y, 

Civ.  App.)  41  S.  W.  198.  Supp.  471.     See  Binz  v.  Tyler,  79  111. 

183  Sigler  V.  Gondon,  68  Iowa,  441,  248. 

27  N.  W.  372.  When  the  rent  Is  reserved  under 

That    an    amendment    cannot    be  different  leases,  separate  actions  can 

made  on  appeal  to  the  county  court  of  course  be  brought.     McLendon  v. 

for  the  purpose  of  claiming  such  ad-  Pass,  66  Miss.  110,  5  So.  234. 

ditional  rent,  see  Williams  v.  Hous-  As  the  tenant  cannot  bring  separ- 

ton  Cornice  Works  (Tex.  Civ.  App.)  ate  actions  for  separate  installments, 

101  S.  W.  839.  all  of  which  are  due,  so  a  fortiori  he 

184  Cross  V.  U.  S.,  81  U.  S.  (14  cannot  bring  separate  actions  for  dif- 
Wall.)  479,  20  Law.  Ed.  721;  Allen  ferent  portions  of  the  same  install- 
v.  Saunders,  6  Neb.  436;  Epstein  v.  ment.  See  Warren  v.  Comings,  60 
Greer,  85  Ind.  372;  Webb  v.  Bailey,  Mass.  (6  Cush.)  103;  Stanley  v. 
17  Ky.  Law  Rep.  1117,  23  S.  W.  Turner,  68  Vt.  315,  35  Atl.  321.  And 
935;    Brennan  v.  Blath,   3  Daly    (N.  see  ante,  §  176  a,  at  note  376. 

Y.)    478;    Smith    v.    Lehigh    Zinc    &        iss  Burritt  v.  Belfy,  47  Conn.  323, 
Iron  Co.,  59  Hun,  618,  13  N.  Y.  Supp.    36  Am.  Dec.  79;   Love  v.  Waltz,   7 


1352  ACTIONS  FOR  RENT.  §  301 

§  301.    Stipulations  for  attorney's  fees. 

There  are  occasional  decisions  recognizing  the  validity  of  a 
provision  of  the  lease  for  the  recovery  by  the  lessor  of  expendi- 
tures by  him  on  account  of  attorney's  fees,  in  case  it  becomes 
necessary  to  sue  by  reason  of  the  lessee's  default,i86  and,  in  the 
absence  of  a  statute  bearing  on  the  subject,  there  is  evidently 
no  objection  to  such  a  stipulation.  It  has  been  decided  that  a 
stipulation  for  the  recovery  of  attorney's  fees,  in  case  it  should 
become  necessary  to  bring  an  action  for  rent,  did  not  apply  when, 
by  reason  of  a  counterclaim,  nothing  could  be  recovered  by  the 
lessor.is'^  I 

Cal.   250;    Smitli  v.   Dittenhoefer,   1   either  suit,  to  the  severance  of  the 

City  Ct.  R.   (N.  Y.)   143;   Drexler  v.    cause  of  action. 

Cohen,  108  N.  Y.  gupp.   680;   Camp-       In  McDole  v.  McDole,  106  111.  452, 

hell   V.  Hatchett,   55  Ala.   548;    Cas-    it  was  decided  that  separate  actions 

selberry  v.  Forquer,  27  111.  170;  Jex    may  be  brought  to  enforce  liability 

V.  Jacob,  19  Hun  (N.  Y.)  105,  7  Abb.  upon  a  bond  for  separate  installments 

N.   C.    452.     In   Fox   v.   Althorp,   40    of  rent,  although  both  installments 

Ohio  St.    322,   where  separate   suits    are  due  at  the  time  of  bringing  the 

for  separate  installments  had   been    first  action. 

Instituted  at  one  time  by  the  lessor,       iso  Richards  v.  Bestor,  90  Ala.  352, 

it  was  held  that  a  judgment  in  his    8  So.  30;  Talbott  v.  English,  156  Ind. 

favor  in  one  suit  could  not  be  assert-   299,  59  N.  E.  857. 

ed  as  a  defense  to  the  other,  defend-       ist  Taylor  v.  Lehman,  17  Ind.  App. 

ant   having  made   no   objection,   in   585,  46  N.  E.  84,  47  N.  E.  230. 


CHAPTER     XXX. 

ACTIONS  FOR  USB  AND  OCCUPATION. 

§  302.  Nature  and  history  of  the  action. 

303.  The  subject  of  the  use  and  occupation, 

304.  Necessity  of  relation  of  tenancy. 

305.  Tenancy  created  by  attornment. 

306.  Particular  classes  of  persons, 

a.  Person  entering  under  contract  for  lease. 

b.  Person  entering  under  contract  of  sale. 

c.  Person  retaining  possession  after  judicial  sale. 

d.  Tenant  holding  over. 

e.  Grantor  retaining  possession. 

307.  Liability  of  assignee. 

308.  Liability  of  executor  or  administrator. 

309.  Election  by  plaintiff  against  tenancy, 

310.  Effect  of  existing  lease  to  a  stranger. 
31L  Persons  who  may  sue. 

312.  As  between  tenants  in  common. 

313.  In  case  of  lease  under  seal. 

314.  Necessity  of  actual  occupancy, 

315.  Rent  reserved  in  kind, 

316.  Pleading 

317.  Evidence  and  presumptions. 

318.  Amount  of  recovery. 

a.  When  no  rent  reserved. 

b.  When  specific  rent  reserved. 

319.  Debt  for  use  and  occupation. 

§  302.    Nature  and  history  of  the  action. 

Upon  an  express  promise  by  the  lessee  of  the  premises  to  pay 
rent  therefor,  if  not  under  seal,  the  action  of  assumpsit  will  lie,i 

lActon  V.  Simonds,  W.  Jones,  364,  v.  Surget,  18  Miss.  (10  Smedes  &  M.) 

Cro.   Car.   414,  1  Rolle's  Abr.   8,  pi.  154;    Providence  Christian  Union  v. 

10;    Johnson   v.    May,    3    Lev.    150;  Elliott,  13  R.  I.  74,  and  cases  cited 

Swem  V.  Sharretts,  48  Md.  408;  btier  ante,  §  290  c,  note  38. 


1354  USE  AND  OCCUPATION.  §  302 

as  in  any  other  case  of  an  express  promise  not  under  seal.  To  be 
distinguished  from  such  an  action  of  ''express  assumpsit"  is  the 
action  for  "use  and  occupation." 

At  common  law,  assumpsit  for  rent  did  not  lie  in  any  case  un- 
less there  was,  at  the  time  of  the  lease,  an  express  promise  by  the 
lessee  to  pay  the  rent  reserved,  or  unless  there  was  an  express 
promise  to  pay  a  reasonable  compensation  for  the  use  and  occu- 
pation of  the  land,  and  if  plaintiff  asserted  such  a  claim  for  a 
reasonable  compensation,  not  naming  any  agreed  amount,  he  was 
liable  to  be  nonsuited  for  a  variance,  in  case  the  evidence  showed 
a  demise  for  a  sum  certain.  Furthermore,  in  those  cases  in  which 
this  form  of  action  did  lie,  the  action  was  on  an  express  promise.^ 
The  statute  11  Geo.  2,  c.  19,  §  14,  however,  contained  the  follow- 
ing provisions:  "To  obviate  some  difficulties  that  many  times 
occur  in  the  recovery  of  rents,  where  the  demises  are  not  by 
deed,  *  *  *  it  shall  and  may  be  lawful  to  and  for  the  land- 
lord or  landlords,  where  the  agreement  is  not  by  deed,  to  recover 
a  reasonable  satisfaction  for  the  lands,  tenements,  and  heredita- 
ments, held  or  occupied  by  the  defendant  or  defendants,  in  an 
action  on  the  case,  for  the  use  and  occupation  of  what  was  so  held 
cr  enjoyed;  and  if  in  evidence  on  the  trial  of  such  action  any 
parol  demise  or  any  agreement  (not  being  by  deed)  whereon 
a  certain  rent  was  reserved  shall  appear,  the  plaintiff  in  such  ac- 
tion shall  not  therefore  be  nonsuited,  but  may  make  use  thereof  as 
an  evidence  of  the  quantum  of  the  damages  to  be  recovered."  The 
effect  of  this  statute  was  to  allow  one  to  recover,  in  indebitatus 
assumpsit,  the  reasonable  value  of  the  use  and  occupation  of 
the  premises,  without  any  allegation  or  proof  of  an  express 
promise  by  the  defendant,  and  without  reference  to  whether  a 
certain  rent  had  been  reserved,  provided  only  there  was  not  a 
demise  under  seal.^ 

The  question  whether  indebitatus  assumpsit  for  use  and  occupa- 
tion, as  distinct  from  that  on  a  promise  declared  in  express  terms, 
would  lie  before  the  statute,  has  occasionally  been  the  subject 
of  consideration  in  cases  in  this  country,  when  in  the  particular 
jurisdiction   the    English    statute   could  not   be   regarded   as   in 

2  See  the  learned  article,  "Assump-       3  See  Naish  v.  Tatlock,  2  H.  Bl.  323; 

sit    for    Use    and    Occupation"    by  Kline  v.  Jacobs,  68  Pa.  57;  Atkinson 

Professor  Ames,  2  Harv.  Law  Rev.  v.  Winters,  47  W.  Va.  226,  34  S.  E. 

877.  834;  2  Harv.  Law  Rev.  377. 


.  302  NATURE  AND  HISTORY.  1855 

force,  and  there  was  no  equivalent  local  statute,  and  in  several 
cases' it  was  decided,  on  a  somewhat  forced  construction  of  the 
English  cases,  it  would  seem,  that  it  did  so  lie  at  common  law."* 
In  this  action  rent,  as  such,  is  not  recovered,  but  merely  a 
reasonable   satisfaction   for  the   use   of   the   premises;    and   the 
recovery   is   based  on  the  theory  that  a  contract  to  pay  such 
reasonable  satisfaction  is  to  be  inferred  from  the  circumstances, 
in  conformity  with  the  intention  of  the  parties.^     If  one  person 
gives  another  permission  to  occupy  certain  land,  and  the  other 
occupies   the   land   by   virtue    of  that  permission,   it   is,   in   the 
ordinary   case,  a  reasonable   inference  that  the  former  expects 
the  latter  to  pay  the  value  of  the  occupation  and  that  the  latter 
expects  to  pay  it,  and  the  law  recognizes  the  reasonability  of  this 
inference,  and  enforces  a  contract  so  inferred.    It  is  in  this  sense 
only  that,  as  is  frequently  stated,  "the  law  implies  an  obligation" 
to  pay  the  value  of  the  use  and  occupation,  the  obligation  not  be- 
ing implied  by  law  without  reference  to  the  presumed  intention 
of  the  parties,  as  in  the  case  of  a  quasi  contract.     That  the  im- 
plication is  one  of  fact  rather  than  of  law  is  apparent  from  the 
consideration  that  the  particular  circumstances  attending  the  per- 
missive occupation,  such  as  the  pre-existing  relations  between  the 
parties,  may  exclude  the  inference  of  a  contract  for  pecuniary 
compensation,^ 

4Gunii  V.  Scovil,  4  Day  (Conn.)  Low  v.  Hallett,  2  Caines  (N.  Y.)  374; 
228,  4  Am.  Dec.  208;  Bppes  v.  Cole,  Rogers  v.  Coy,  164  Mass.  391,  41  N. 
4  Hen.  &  M.  (Va.)  161,  4  Am.  Dec.  E.  652;  Barron  v.  Marsh,  63  N.  H. 
512;  Dwight  v.  Cutler,  3  Mich.  566,  107,  56  Am.  Rep.  496;  Dalton  v.  Lau- 
64  Am.  Dec.  105;  Crouch  V.  Briles,  30  dahn,  30  Mich.  349;  Kenwood  v. 
Ky.  (7  J.  J.  Marsh.)  255,  23  Am.  Dec.  Cheeseman,  3  Serg.  &  R.  (Pa.)  500; 
404;  Hogsett  v.  Ellis,  17  Mich.  351;  St.  Louis,  L  M.  &  S.  R.  Co.  v.  Hart, 
Hei'delbach  v.  Slader,  1  Handy  38  Ark.  112.  In  view,  however,  of 
(Ohio)  457.  That  it  did  not  lie,  the  necessity  that  the  relation  of 
apart  from  the  statute,  see  Bell  v.  landlord  and  tenant  exist,  in  most 
Ellis'  Heirs,  1  Stew.  &  P.  (Ala.)  294;  cases,  in  order  to  support  the  action 
Byrd  v.  Chase,  10  Ark.  602;  Long  v.  (post,  §  304),  the  action  might,  to 
Bonner,  33  N.  C.  27.  some   extent,   it  seems,  he  regarded 

5  That  the  action  is  based  on  priv-  as  based  on  privity  of  estate  as  well. 
Ity  of  contract  and  not  on  privity  of  6  See  post,  §  317. 
estate,  see  Birch  v.  Wright,  1  Term  In  Story  v.  McCormick,  70  Kan. 
R.  378;  Churchward  v.  Ford,  2  Hurl.  323,  78  Pac.  819,  it  is  apparently  as- 
&  N.  446;  Corporation  of  New  York  sumed  that  the  liability  in  use  and 
V.  Dawson,  2  Johns.  Cas.  (N.  Y.)  335;    occupation,  if  based  merely  on  the 


J855  USE  AND  OCCUPATION.  §  303 

In  some  states  the  English  statute  11  Geo.  2,  c.  19,  §  14,  is  to 
be  regarded  as  in  force.'^  In  some  there  is  a  specific  statutory 
provision  more  or  less  similar  to  that  statute.^  Occasionally  the 
statute  in  terms  gives  a  right  to  recover  a  reasonable  satisfaction 
for  the  use  and  occupation  only  when  there  is  no  express  agree- 
ment for  rent,^  and  in  one  state  only  when  "the  contract"  is  not 
in  writing.^^^  In  a  number  of  states  the  action  for  use  and  occu- 
pation has  been  decided  to  exist  independently  of  any  statute.^i 

§  303.    The  subject  of  the  use  and  occupation. 

Under  the  English  statute,  allowing  the  action  for  the  use 
and  occupation  of  "lands,  tenements  or  hereditaments,"  it  has 
been  held  to  lie  for  the  use  of  incorporeal  as  well  as  corporeal 
things,  such  as  rights  of  fishing,i2  of  shooting,^ ^  to  take  min- 
erals,!^  and  water  rights  ;i^  and  in  this  country  a  right  to  recover 
in  use  and  occupation  for  the  use  of  land  for  a  right  of  way,^^* 

presumption  of  a  contract  to  pay  the  lo  Kentucky  St.  1903,  §  2300.       In 

value    of    the    use    and    occupation,  North  Carolina  Revisal  1905,  §  198G, 

without   any   direct  evidence   of   an  a  right  of  recovery  is  given  against 

intention  on   the  part  of  the   occu-  one  occupying  under  "a  parol  lease 

pant  to  pay,  is  in  quasi  contract.  The  which  is  void." 

court,  however,   considered  the  evi-  n  Gunn  v.  Scovil,  4  Day   (Conn.) 

dence  in  that  particular  case  bearing  228,   4  Am.   Dec.   208;    Lockwood  v. 

on  the  existence  of  an  express  con-  Lockwood,  22  Conn.  425;   Crouch  v. 

tract.  Briles,  30  Ky.   (7  J.  J.  Marsh.)   255, 

7E.  g.,  in  Maryland   (see  Alexan-  23  Am.  Dec.  404;  Dwight  v.  Cutler,  3 

der's  Brit.  St.  at  p.  750)   and  Penn-  Mich    555^  54  ^j^   p^^c   105;  Hogsett 

sylvania     (see    Pott     v.    Lesher,    1  y.  Ellis,  17  Mich.  351;  Heidelbach  v. 

Yeates,  576;  Kline  v.  Jacobs,  68  Pa.  siader,  1  Handy  (Ohio)   457;  Gould 

57).  v.  Thompson,  45  Mass.  (4  Mete.)  224; 

8  Arkansas,  Kirby's  Dig.  St    1904.  Eppes  v.  Cole,  4  Hen.  &  M.  (Va.)  161, 

§§  4698,  4699;    Delaware  Rev.   Code  4  j^^   j^^^  5^3 ,  Howard  v.  Ransom, 

1893,  p.  867;  Florida  Gen.  St.  1906,  §  g  Aik«n  (Vt  )  252 

2236;   Illinois,  Kurd's  Rev.  St.  1905  ,,  Telford '  v.    Pritchard,    3    Exch. 
c-  <J0.  S  1;  Missouri  Rev.  St.  1899,  § 

4113;  I^eto  Jersey,  2  Gen.  St.  p.  1915,  "                     t^      i-         o-.    t          m 

„   „     ,T        TT    ■,    -T,     1   -D  ^^    T  OTTT    R  ^^  Dawcs  V.   Dowliug,  31  Law.  T. 
§   3;   New  YorTc  Real  Prop.  Law,  § 

190;  South  Carolina  Civ.  Code  1902,  §  ^^-  ^^   ^^• 

2417;    Yirginia   Code   1904,    §    2787;  ^*  Jones  v.  Reynolds.  4  Adol.  &  E. 

West   Yirginia   Code   1906,    §    3400;  805. 

Wisconsin  Rev.  St.  1S&8,  §  2196.  "  Davis  v.  Morgan,  4  Barn.  &  C.  8. 

oAZo?)awa  Code  1907,  §  4753;  Mis-  "a  Ledyard  v.  Morey,  54  Mich.  77, 

sissivpi   Code    1906,    §    2876;    North  19  N.  W.  754. 
Carolina  Revisal  1905,  §  1986. 


.  OQ4  NECESSITY  OP  TENANCY.  1857 

as  well  as  for  the  enjoyment  of  ferry  rights,^^^  has  been  recog- 

nlzed.  „         J       .,,       , 

Assumpsit  for  use  and  occupation  has  been  allowed,  without 
any  suggestion  as  to  the  propriety  of  so  doing,  m  favor  of  the 
owner  of  a  building,  placed  on  another's  lands  under  such  cir- 
cumstances as  to  retain  its  chattel  character,  against  one  who 
occupied  the  building  under  an  agreement.^^^  Such  an  action 
for  the  use  of  a  chattel  seems,  however,  distinct  from  an  action 
for  the  use  and  occupation  of  land. 

§  304.    Necessity  of  relation  of  tenancy. 

To  sustain  an  action  for  use  and  occupation,  it  is  said  with 
great  frequency,  the  relation  of  landlord  and  tenant  must  exist 
between  the  parties.^^  and  this  is  no  doubt  true  in  the  great 
majority  of  cases.     That  is,  one  is  not  ordinarily  liable  for  use 

16b  Walker  v.   Tipton.   33    Ky.    (3    Rogers  v.  Libbey,  35  Me.  200;   Cen- 
^^^.   3  tral  Mills  Co.  v.  Hart,  124  Mass.  123; 

la  Watson  v.  Brainard.  33  Vt.   88.    Hogsett  v.  Ellis.  17  Mich.  351;  Bar- 
In  McCloskey  v.  Miller.  72  Pa.  151.    ron  v.  Marsh.  63  N.  H.  107.  56  Am. 
an  action  "for  the  use  and  occupa-   Rep.  496;  McFarlan  v.  Watson.  3  N. 
tion"     of     mining     appliances     was    Y.  (3  Comst.)  286;  Pott  v.  Lesher.  1 
brought  by  the  owner  of  the  land  on    Yeates   (Pa.)   576;   Peters  v.  Elkins. 
which  they  were  against  a  person  hav-   14  Ohio.  344;  Rosenberg  v-  Sprec^er 
inc^  mining  rights  in  the  land,  who    74  Neb.  176.  103  N.  W.  1045;  Clark 
uspd  them  without  permission,  and    v.  Clark's  Estate.  58  Vt.  527    3  Atl. 
it  is  assumed  that  the  action  would    508;    Fender  v.  Rogers.  97  111.  App. 
have  Iain  had  the  use  been  permis-    280;  Janouch  v.  Pence.  3  Neb.  Unoff. 
sive        These    appliances,    however.    867.  93  N.  W.  217;  Rogers  v.  Wiggs. 
would  seem  to  have  been  a  part  of    51   Ky.    (12   B.   Mon.)    504;    Hall   v. 
the  land  itself,  being  affixed  by  the    Jacobs.  70  Ky.   (7  Bush)   595;  Pitts- 
owner  thereof.  ^-S^.  C.  &  St.  L.  R.  Co    v.  Thorn- 
17  See   e   g..  Carpenter  v.  U.  S..  84    burgh.  98  Ind.  201;  Cambridge  Lodge 
U  S    (17  Wall.)  489;  Hamby  v.  Wall,    v.  Routh,  163  Ind.  1,  71  N.  E.  148; 
48  Ark    135    2  S.  W.  705.  3  Am.  St.    Benedict  v.  Jennings,  47  Misc.   135, 
Rep   218-  Emerson  V.  Weeks,  58  Cal.    93   N.    Y.    Supp.    464;    Wilmarth    v. 
439-    Barnes  v.  Shinholster,   14  Ga.    Palmer.  34  Mich.  347.     But  see,  as  to 
131-  Nance  v.  Alexander.  49  Ind.  516;    the  Indiana  law,  Winings  v.  Wood, 
Richmond    &    Lexington    Turnpike    53  Ind.  187,  and  Burns' Ann.  St.  1901, 
Road  Co  v.  Rogers,  70  Ky.  (7  Bush  )    §   7103,  which  provides  that  the  oc- 
532-  De  Young  V.  Buchanan,  10  Gill  &   cupant,  without  special  contract,  of 
J.  (Md.)  149,  32  Am.  Dec.  156;  Aull   any  lands,  shall  be  liable  for  the  rent 
Sav.  Bank  v.   Aull's  Adm'r,  80  Mo.    to  any  persons  entitled  therete 
199;  Scales  v.  Anderson,  26  Miss.  94; 

L.  and  Ten.  117. 


1858  USE  AND  OCCUPATION.  §  304 

and  occupation  to  another  unless  his  possession  is  based  upon  a 
demise  from  that  other,  or  from  his  predecessor  in  title.  Tlie 
language  of  the  English  statute,  as  previously  quoted,  evidently 
contemplates  the  case  of  a  "demise"  or  holding  by  ''agreement," 
and  so  the  state  statutes  authorize  a  recovery  by  a  "  landlord,  "i"^* 
or  against  one  holding  "by  permission, "^'^^  or  in  terms  apply  to 
the  case  of  a  " demise "i'''*'  or  "agreement. "^'^'^ 

Applying  the  requirement  that  the  relation  of  tenancy  exist, 
one  who  has  entered  on  land  as  a  trespasser,  and  without  any 
recognition  of  another's  right  in  the  land,  is  not  liable  in 
an  action  for  use  and  occupation  by  such  other,^^  and  it  is  im- 
material that  the  entry  was  under  an  assertion  of  paramount 
title. ^'^  So  one  who  enters  under  a  lease  from  one  person  is  not 
liable  in  use  and  occupation  to  another,  who  claims  adversely, 
even  though  the  latter  has  a  good  title  to  the  land,-''  though  on  the 
other  hand  one  who  enters  and  holds  under  a  demise  from  another, 
provided  it  is  not  under  seal,  is  liable  to  such  other  in  this  form 

17a  See  statutes  of  Kentucky,  Mis-  480;  Tew  v.  Jones,  13  Mees.  &  W.  12; 

sissippi,    New    Jersey,    New    York,  Lloyd  v.  Hough,  42  U.  S.   (1  How.) 

South  Carolina,  Virginia,  West  Vir-  153;   Pico  v.  Phelan,  77   Cal.   86,  19 

ginia,  "Wisconsin.  Pac.   186;    Howe  v.  Russell,   41  Me. 

iTb  See  statutes  of  Delaware,  Flor-  446;    Folsom   v.  Carli,  6  Minn.  420, 

ida,  North  Carolina.  80  Am.   Dec.  456;    Inman  v.  Morris, 

17c  See  statute  of  Alabama.  63  Miss.  347;  Wiggin  v.  Wiggin,  6  N. 

iTd  See  statutes  of  Arkansas,  Mis-  H.  298;  Swift  v.  New  Durham  Lum- 

souri.  New  Jersey,  New  York.  ber  Co.,  64  N.  H.  53,  5  Atl.  903;  But- 

18  Hathaway  v.  Ryan,  35  Cal.  188;  ler  v.  Cowles,  4  Ohio,  205,  19  Am. 
Lathrop 'v.  Standard  Oil  Co.,  83  Ga.  Dec.  612;  City  of  Cincinnati  v.  Walls, 
307,  9  S.  E.  1041;  Carrigg  v.  Mechan-  1  Ohio  St.  222;  Ryan  v.  Marsh,  2  Nott 
ics''  Sav.    Bank    (Iowa)    111    N.    W.  &  McC.  (S.  C.)  156. 

329;    Dixon  v.    Ahern,   19   Nev.   422,        20  Shumake  v.  Nelms,  25  Ala.  126; 

14    Pac.    598;    Stockett    v.    Watldns'  Stringfellow  v.  Curry,  76  Ala.  394,  52 

Adm'rs,   2   Gill   &  J.    (Md.)    326,    20  Am.  Rep.  339;  Lankford  v.  Green,  52 

Am.  Dec.  438;  Hurd  v.  Miller,  2  Hilt.  Ala.   103;    Kieth  v.   Paulk,   55   Iowa, 

(N.  Y.)    540;    Brolasky  v.  Ferguson,  260,  7  N.  W.  588;  Kittredge  v.  Peas- 

48  Pa.  434;  Jackson  v.  Mowry,  30  Ga.  lee,  85   Mass.    (3   Allen)    235;    Allen 

143;  Biglow  v.  Biglow,  75  App.  Div.  v.  Thayer,  17  Mass.  299,  9  Am.  Dec. 

98,  77  N.  Y.   Supp.   716;    Janouch  v.  145;  Lathrop  v.  Standard  Oil  Co.,  83 

Pence,  3  Neb.  Unoff.  867,  93  N.  W.  Ga.  307,  9  S.  E.  1041;  Mackey  v.  Rob- 

217;  Curtis  v.  Treat,  21  Me.  525;  Ed-  inson,  12  Pa.  170;  Adsit  v.  Kaufman, 

mondson  v.  Kite,  43  Mo.  176;    Phil-  58  C.  C.  A.  33.  121  Fed.  355;  Osborne 

lips  V.  Homfray,  24  Ch.  Div.  439,  461.  v.  Jones,  15  U.  C.  Q.  B.  296;  Thomp- 

19  Cripps  V.  Blank,  9   Dowl.  &  R.  son  v.  Bennett,  17  U.  C.  C.  P.  380. 


2Q^  KECESSI'i-Y  OF  TENANCY.  1859 

Of  action,  ^nthout  reference  to  whether  the  latter  had  jHle  at  the 
time  of  making  the  demise.^^     The  action  has  been  held  not  to  he 
ac^ainst  a  raili^oad  company  which  entered  on  the  land  m  spite 
0?  warnings  from  the  owner,  who  took  no  further  action  merely 
because  he   anticipated  condemnation  proceedings  by  ^he  com- 
pany ^^  and  a  widow  who  remained  in  possession  of  the  home- 
stead after  the  expiration  of  the  statutory  periodhas  been  re 
garded  as  a  disseisor,  and  so  not  liable.^3     Likewise,  an  officer 
attaching  goods  on  certain  premises  and  leaving  them  there  is 
not  liable  in  such  an  action,^^  nor  is  one  entering  under  an  invalid 
judicial    or  execution  sale.^'     So  if  a  tenant  at  will  undertakes 
to  lease  to  another,  the  latter  is  upon  entry  a  trespasser  merely, 
and  is  consequently  not  liable  to  the  landlord  in  use  and  occupa- 
tion ^t    It  is  a  good  defense  to  the  action  that  not  the  defendant, 
but  her  husband,  was  the  person  in  possession  of  the  land  under 

the  plaintiff.28 

The  decisions  above  referred  to,  that  the  owner  of  land  cannot 
sue  a  trespasser  in  this  form  of  action,  are  evidently  m  effect 
that  he  cannot  waive  the  tort  and  sue  in  assumpsit,  and  so  it  has 
been  in  a  number  of  eases  expressly  stated  that  the  owner  of 
land  cannot,  after  another  has  entered  thereon  by  way  of  trespass, 
transform  such  other  into  a  tenant  so  as  to  render  him  liable  in 
use   and   occupation,  by  electing  to  regard  him  as   a  tenant. 

«  See  Cobb  V.  Arnold.  49  Mass.  (8  "  Peters  v.  Elkins    14   Ohio.  344; 

Mete.)   398;   Phipps  v.  Sculthorpe,  1  Richey  v.  Hmde,  6  Oblo.  371     Hur 

Barn.  &  Aid.   50;    Dolby  v.   lies,  11  ley  v.  Lamoreaux.  29  Minn    138.  12 

Adol   &  E.  335,  and  ante,  §  78  c  (4).  N.    W.    447;    Thompson    y    Fox.    21 

t  Marauette.  H.  &  O.  R.  Co.  v.  Har-  Misc.  298.  47  N.  Y.  ^UPP^  1^6  /)ixon 

low,  37  Mich.  554.  557;  26  Am.  Rep.  v.  Ahern.  19  Nev.  ^22.  14  Pac  598 

"g  Ackerman  v.   Lyman.   20   Wis.   456. 

23  Emery  v.  Emery.  87  Me.  281.  32  Churchward   v.  Ford,  2  Hurl.   &  N. 


^^!l  Leonard  v.  Kingman,  136  Mass.  A    statute    providing    that    in    all 

-  cases  where  a  party  has  a  right  of 

2^  Nance  v.  Alexander,  49  Ind.  516.  action  for  the  taking  of  timber    or 

26  See  ante,  §  15  b,  at  note  587.  other  trespass  on  lands    it_  shall  be 

2T  Atlanta.  K.  &  N.  R.   Co.  v.  Mc-  lawful    for    the    party    having    such 

Han     110    Ga.    544.    35    S.    E.    634;  right  of  action  to  waive  the  tort  and 

Janouch  V   Pence.  3  Neb.  Unoff.  867,  bring  'assumpsit,    was    held    not    to 

9rN    W    217  authorize  such  an  action  to  recover 

aBFludderv.Vaughan,24R.L471.  damages   for   occupation   by   a  tres- 

,   .  .,    .ofi  passer.    Lockwood  v.  Thunder  Bay 


53  Atl.  636. 


1S60  USE  AND  OCCUPATION.  §  304 

Cn  this  same  principle,  it  seems,  a  mere  notification  to  the  person 
so  in  possession,  that  if  he  remains  he  must  pay  rent,  to  which 
the  latter  makes  no  response,  should  not  render  him  liable  as 
tenant  from  the  time  of  such  notification,  and  there  are  decisions  to 
that  effect,^"  though  there  are  also  contrary  decisions.^^  The 
fact  even  that  after  such  notice  the  person  in  possession  enters 
into  negotiations  as  to  the  rent  to  be  paid  should  not,  it  seems, 
render  him  a  tenant  of  the  other,  unless  these  negotiations  are 
themselves  such  as  to  amount  to  an  attornment  by  him,^^     If 

River  Boom  Co.,  42  Mich.  536,  4  N.  quired  to  pay  rent  thereby  becomes 

W.  292.  liable  for  the    rent   does   not  apply 

soLockwocd  V.  Thunder  Bay  Rlv-  where  the  possession  is  adverse  and 

er  Boom  Co.,  42  Mich.  536,  4  N.  W.  hostile  to  such  owner  and  has  been 

292;    Henderson  v.  City  of  Detroit,  so  from  the  beginning.     These  cases 

61  Mich.  378,  28  N.  W.  123  (compare  are    not    in     accord    with     Illinois 

Thompson  v.  Sanborn,  52  Mich.  141,  Cent.  R.   Co.   v.   Thompson,   116   111. 

17  N.  W.  730;  Ducey  Lumber  Co.  v.  159,  5  N.  E.  117,  56  Am.  Rep.  769, 

Lane,  58  Mich.  520,  25  N.  W.  568);  supra. 

Galveston  Wharf  Co.  v.  Gulf,  C.  &  In  United  Merchants  Realty  & 
S.  F.  R.  Co.,  72  Tex.  454,  10  S.  W.  Imp.  Co.  v.  Roth,  107  N.  Y.  Supp. 
537;  Biglow  v.  Biglow,  75  App.  Div.  11,  it  seems  to  be  held  that  a  ten- 
98,  77  N.  Y.  Supp.  716;  Swift  v.  New  ancy  is  created  if  the  person  en- 
Durham  Lumber  Co.,  64  N.  H.  53,  5  titled  notifies  the  wrongful  holder 
Atl.  903.  that  if  he  remains  in  possession  he 

31  Illinois   Cent.   R.   Co.   v.    Thorn-  must  pay  a  certain  rent.     The  opin- 

Bon,  116  111.  159,  5  N.  E.  117,  56  Am.  ion     cites  Despard  v.  Walbridge,  15 

Rep.  769;  Sanborn  v.  Haynes,  26  111.  N.  Y.  374,   where,  however,  the  no- 

App.   335;    Boley  v.  Barutio,  24   111.  tice  was  given  by  the  landlord  to  a 

App.  515;   Mussey  v.  Holt,  24  N.  H.  tenant  holding  over,  and  Preston  v. 

248.  55  Am.  Dec.  234;  Nolan  v.  Hen-  Hawley,  139  N.  Y.  296,  34  N.  E.  906, 

tig,  138  Cal.  281,  71  Pac.  440    (sem-  where  the  person  in  possession  "ad- 

ble) ;  Sadlier  v.  Riggs,  15  Daly,  522,  mitted   that  he  ought  to  pay  some- 

8  N.  Y.  Supp.  473;  Gillespie  v.  Hend-  thing." 

ren,  98  Mo.  App.  622,  73  S.  W.  361;  ^2  it  is  so  decided  in  Gallagher  v. 

Loring  v.   Taylor,   50   Mo.   App.    80.  Himelberger,     57     Ind.     63;     Center 

See  Head  v.  Pryor,  29  Ky.  Law  Rep.  Creek  Min.  Co.  v.  Frankenstein,  179 

719,  96   S.   W.   465;   Lucier   v.   Mar-  Mo.  564,  78  S.  W.  785.    See,  also,  Dix- 

sales,  133  Mass.  454,  and  ante,  §  17,  on  v.  Ahern,  21  Nev.  65,  24  Pac.  337, 

notes  35,  36.  9  L.  R.  A.  59,  37  Am.  St.  Rep.  478; 

In  Fender  v.  Rogers,  97  111.  App.  Victory  v.  Stroud,  15  Tex.   373.     In 

280,   and   Hill   v.   Coal   Valley   Min.  Gregg  v.  Tamsen,  42  App.  Div.  138, 

Co.,  103  111.  App.  41,  it  is  said  that  58  N.  Y.  Supp.  1026,  and  Preston  v. 

the  rule  that  one  who  continues  to  Hawley,  139  N.  Y.  296,  34  N.  E.  906, 

occupy    premises    after    notification  cited   in  last  pr-gceding   note,   there 

hi-   the   owner   that   he   will   be   re-  were  words  spoken  by  the  occupant 


s  304  NECESSITY  OP  TENANCY;  1861 

a  mere  notice  from  the  person  entitled  to  the  possession  of  the 
land  could  thus  render  the  person  in  possession  his  tenant,  the 
same  doctrine  should  apply  in  favor  of  a  person  having  no  title, 
who  gives  such  a  notice  to  the  person  in  possession,  since  the 
question  of  the  existence  of  a  tenancy  is,  for  the  purpose  of  main- 
taining an  action  for  use  and  occupation,  independent  of  the  ques- 
tion whether  the  asserted  landlord  has  title  to  the  land.^^  j^  per- 
son who  enters  wrongfully  on  another's  land  is  a  disseisor  and  has 
an  estate  in  fee  simple  by  wrong,^^  and  the  suggestion  that  the 
disseisee  can  make  the  disseisor's  holding  subordinate  to  him, 
the  disseisee,  and  change  the  disseisor's  wrongful  estate  in  fee 
simple  to  a  leasehold  estate,  by  merely  notifying  him  to  pay  rent, 
finds  no  support  in  the  common-law  principles  of  the  subject. 

In  refusing  the  owner  of  the  land  the  privilege  of  waiving  the 
tort  and  suing  a  trespasser  in  assumpsit,  the  courts  have  refrained 
from  applying  the  ordinary  rule  that  if  a  person  enriches  himself 
by  wrongfully  taking  or  using  the  property  of  another,  the  owner 
may  waive  the  tort  and  sue  in  assumpsit  for  the  value  of  that 
which  has  been  tortiously  taken  or  used,  a  rule  upon  which  the 
theory  of  liability  in  quasi  contract  is  to  a  great  extent  based.^' 
The  failure  to  apply  the  same  rule  in  the  case  of  wrongful  oc- 
cupancy of  land  is  primarily  owing,  it  seems,  to  the  language  of 
the  English  statute,  upon  which  the  action  of  indebitatus  assumpsit 
for  use  and  occupation  was  originally  based,  and  which  confines 
recovery  to  the  case  of  occupation  by  agreement.^^ 

It  would  seem  that,  if  the  occupancy  is  wrongful,  the  fact  that 
the  occupant  believes  that  it  is  right  should  not  render  him 
liable  as  on  an  implied  contract.  He  is  still  an  adverse  claimant 
and  trespasser.  And  so  it  has  been  decided  that  where  an  ille- 
gitimate son  of  the  OAvner  continued  in  possession  after  his  father's 
death,  on  the  supposition  that  he  was  legitimate,  and  therefore 
entitled  to  a  share  in  the  property,  there  was  no  relation  of  ten- 
ancy between  him  and  the  rightful  heirs,  so  as  to'  support  the 
action.^"^    But  elsewhere  it  has  been  decided  that  where  a  town, 

which  might  be  regarded  as  showing       sc  See  2   Harv.  Law   Rev.   p.   380, 

an  acknowledgment  that  he  held  un-   article  by  Professor  Ames;   Keener, 

der  the  person  asserting  the  claim.      ^       •    rx     *       ^       -.ni 
^    ^      „  „„  ;.s    ,  Quasi    Contracts,    191. 

33  See  ante,  §  78  a,  c  (4),  k. 

34  see  ante,  §  78  a.  "  ^^''^^  v.  Flood.  83  Mass.  (1  AL 

35  See    Keener,    Quasi    Contracts,   len)  217. 
159  et  seq. 


1862  USE  AND  OCCUPATION.  §  304 

intending  to  erect  a  structure  on  an  alley,  erected  it  by  mistake 
partly  on  an  adjoining  lot,  it  was  liable  to  the  owner  of  the  lot 
for  use  and  occupation.^s  In  one  case  where  the  children  of  a 
deceased  owner  made  an  oral  partition  of  the  land,  and  took 
possession  accordingly,  under  the  impression  that  they  were  joint 
heirs,  one  of  them,  who  was  the  sole  devisee  under  a  will  sub- 
sequently found,  was  allowed  to  recover  against  the  others  in  use 
and  occupation."'^  And  in  another  case,  one  who  gave  up  pos- 
session to  another,  under  a  mistaken  belief  as  to  the  state  of  liti- 
gation in  regard  to  the  property,  was  held  to  be  entitled  to 
recover  from  such  other  in  use  and  occupation.-*^  In  both  these 
latter  cases,  however,  the  occupation  was  permissive,  and  conse- 
quently the  relation  of  tenancy  existed,  though  there  might  have 
been  some  difficulty,  it  would  seem,  in  inferring  from  the  circum- 
stances an  agreement  to  pay  compensation  for  the  occupancy. 
The  relation  of  landlord  and  tenant  has  in  England  been  re- 
garded as  unnecessary  when  a  tenant  assigns  his  leasehold  in- 
terest, reserving  rent,  and  in  such  case,  though  the  assignor  is 
not  the  landlord  of  the  assignee,"*!  he  may  there,  it  seems,  sue 
in  use  and  occupation  to  recover  damages  equivalent  to  the  rent 
reserved.42 

In  two  or  three  states  in  this  country,  the  action  has  been  re- 
garded as  lying  against  one  who  is  in  fact  a  trespasser.  Thus, 
in  Alabama  it  has  been  held  that  it  will  lie  against  one  who 
takes  possession  of  vacant  land,  admitting  at  the  time  that  he  has 

3R  Beardsley  v.  Town  of  Nashville,  4i  See  ante,  §  151. 

64  Ark.  240,  41  S.  W.  853.     Compare  42  Pollock  v.    Stacy,  9   Q.   B.   1033. 

Ettlinger     v.     De.siion-McLean    Con-  But  in  this  case  the  transfer  by  the 

tracting  Co.,  42  Misc.  215,  85   N.  Y.  lessee,  though  in  terms  of  his  whole 

Supp.  394.  interest,  could  not  take  effect  as  an 

3!)  Jordan    v.    Jordan,     4    Me.     (4  assignment  ^f or   the    reason    that    it 

Greenl.)    175,   16  Am.  Dec.  249.  was  by  parol,  and  consequently  the 

40  Hull   V.   Vaughan,   6   Price,   157.  transferee,  having  entered,  could  not 

This,  and  that  one  having  an  equi-  well  be  regarded  otherwise  than  as 

table  title  only  may  sue  in  use  and  a    tenant    of    the    transferor.     The 

occupation,  seems  to  have  been  the  court  refers  to  the  intention  of  the 

only  questions  decided  in  this  case,  parties    to    create    the    relation    of 

though  dicta  therein  go  further,  and  landlord    and  .  tenant,    and    also    to 

these  have  been  frequently  cited  in  the  invalidity  of  the  transaction  as 

this  country  in  support  of  extending  an   assignment.     See   the   references 

the  right  of  action  in  use  and  occu-  to  this  case  in  Beardman  v.  Wilson, 

pation.  L.  R.  4  C.   P.  57. 


R  304  NECESSITY  OF  TENANCY.  1863 

no  title  and  expressing  a  willingness  to  pay  rent  to  the  rightful 
owner,^^  and  the  Mississippi  statute  providing  that  "any  land- 
lord, where  the  agreement  is  not  in  writing,  or  when  there  is  no 
contract,  may  recover  a  reasonable  satisfaction  for  the  lands, 
•  *  *  held  or  occupied  by  the  defendant,  in  an  action  for  the 
use  and  occupation  of  what  was  so  held  or  enjoyed,"  has  been 
regarded  as  making  an  occupant  so  liable  to  the  owner,  though  he 
occupies  without  the  latter 's  permission,  or  knowledge  even, 
provided  he  recognizes  the  latter 's  title  thereto.^*  In  Arkansas 
the  local  statute,  providing  that,  where  lands  and  tenements 
are  held  and  occupied  without  any  special  agreement  for  rent, 
the  owner  may  recover  a  fair  compensation  for  such  use  and 
occupation,  has  been  held  to  authorize  a  recovery  against  one 
who  made  a  peaceable  entry  on  another's  land  without  any 
agreement,  the  latter  having  made  no  objection  to  the  entry .^"^ 
In  Kansas  also  it  has  been  decided  that,  in  view  of  the  local 
statute  providing  that  the  occupant,  without  special  contract, 
of  any  lands,  shall  be  liable  for  rent  to  any  person  entitled 
thereto,  and  in  view  also  of  the  tendency  of  the  courts  to  imply 
a  contract  where  one  commits  a  tort  for  the  benefit  of  his  own 
estate,  a  trespasser  may  be  held  liable  in  an  action  for  use  and 
occupation.-*^  And  in  Kentucky  it  has  apparently  been  decided 
that  assumpsit  for  use  and  occupation  will  lie  though  the  relation 
of  landlord  and  tenant  does  not  exist,  provided  the  plaintiff 
makes  out  his  title  as  he  would  in  ejectment.^^  In  "Washington 
the  statute  explicitly  provides  that  one  obtaining  possession  of 
land  without  the  consent  of  the  person  entitled  shall  be  liable 
for  a  reasonable  rent.-^s  In  other  states,  also,  where  the  line  be- 
tween the  different  forms  of  action  has  become  obscured  by  sta- 
tutory enactments,  a  trespasser  may,  it  seems,  be  made  liable 
for  the  rental  value  of  the  land  under  allegations  of  use  and  oc- 
cupation by  him.49     But  in  these  latter  cases  the  action  cannot 

43  Smith's    Ex'rs    v.    Houston,    16  the  relation  of  landlord  and  tenant 

Ala.  111.  was  asserted.     Rogers  v.  Wiggs,  51 

44Newberg  V.  Cowan,  62  Miss.  570.  Ky.    (12  B.  Mon.)    504;   Hall  v.  Jac- 

45  Dell  V.  Gardner,  25  Ark.  134.  obs,  70  Ky.   (7  Bush  )   595. 

4B  Missouri   Pac.    R.    Co.   v.   Atchi-  4s  Ball.  Ann.   Codes  &   St.    1897,   § 

son,  43  Kan.  529.  23  Pac.  610.  4571.     And   see   the   Indiana   statute 

4T  Illinois  Cent.  R.  Co.  v.  Ross,  26  referred  to  ante,  note  17. 

Ky.   Law   Rep.    1251,    83   S.   W.    635  49  See  Lindt  v.  Linder,  117   Iowa, 

But  in  earlier  cases  the  necessity  of  110,  90  N.  W.  596;  Bowie  v.  Herring, 


1864  USE  AND  OCCUPATION.  §  395 

be  regarded  as  the  equivalent  of  assumpsit  for  use  and  occupa- 
tion, but  is  more  properly  an  action  of  trespass  for  mesne  profits, 
according  to  the  common-law  nomenclature. 

The  action  will  not  lie  against  one  to  whom  land  has  been  con- 
veyed in  fee,  though  a  reserA-ation  of  rent  in  the  conveyance  has 
failed  to  take  effect,  since  there  is  no  room  for  the  inference  of  a 
promise  by  one  to  pay  for  the  occupation  of  hia  own  land.^^ 

§  305.    Tenancy  created  by  attornment. 

Though  a  person  enters  without  permission,  if  he  afterwards 
recognizes  another  as  his  landlord,  he  may  be  made  liable  to  the 
latter  for  use  and  occupation.^i  A  promise  by  him  to  pay  rent 
is  sufficient  recognition  for  this  purpose,'^^  ai^j  i^y  gome  decisions 
the  fact  that  he  enters  into  negotiations  for  the  payment  of 
rent  to  another  who  claims  the  land  has  been  regarded  as  evidence 
to  go  to  the  jury  to  establish  the  relation  of  landlord  and 
tenant,^3  though  by  other  decisions  this  is  regarded  as  immaterial, 
so  long  as  the  negotiations  are  not  completed.'^^ 

If  a  tenant  under  a  lease  from  A  transfers  the  possession  to 

116  Iowa,  209,  89  N.  W.  976;   Olson  the    person    disseised,    unless    such 

V.  Huntamer,  6  S.  D.  364,  61  N.  W.  person    has    re-entered.     Proprietors 

479,  55  Am.  St.  Rep.  844;  Parkinson  of  Roxbury  v.  Huston,  39  Me.  312. 

V.  Shew,  12  S.  D.  171,  80  N.  W.  189;  02  Dell    v.    Gardner,   25   Ark.    134; 

Long  Bell  Lumber  Co.  v.  Martin,  11  Shumake  v.  Nelms,  25  Ala.  126;  Dol- 

Okl.    192,    66    Pac.    328;    Hidden    v.  by  v.  lies,  11  Adol.  &  E.  335.     And 

Jordan,  57  Cal.  184;  Lamb  v.  Lamb,  see   cases    cited    ante,    §    78    k    (1), 

146  N.  Y.  317,  41  N.  E.  26;  Meeker  notes   377-383. 

V.  Gardella,  1  Wash.  St.  139,  23  Pac.  b3  Mussey  v.  Holt,  24  N.  H.  248,  55 

837.     In  Texas  the  statute  (Rev.  St.  Am.  Dec.  234;  Turner  v.  Cameron's 

1895,   art.    5273)    expressly   provides  Coalbrook  Steam  Coal   Co.,  5   Exch. 

that,  in  an  action  of  trespass  to  try  932.     That   plaintiff   wrote  twice  to 

title,    there   may   be   a   recovery    of  defendant  demanding  rent  and  that 

damages  for  use  and  occupation.  defendant  replied  to  one  letter,   ob- 

50  Arrison  v.  Harmstead,  2  Pa.  191.  jecting  merely  to  the  amount,  was 

01  Curtis    V.    Treat,    21    Me.    525;  held  to  be  evidence  of  a  tenancy  to 

Steele  v.  Thayer,   36   Minn.   174,   30  go  to  the  jury.     Preston  v.  Hawley, 

N.  W.  758;  Ackerman  v.  Lyman,  20  139  N.  Y.  296,  34  N.  E.  906. 

Wis.  454.     But  it  has  been  decided  oiLathrop  v.  Standard  Oil  Co.,  83 

in  Maine  that  one  disseised  cannot  Ga.  307,  9   S.  E.  1041;    Gallagher  v. 

recover     in     use     and     occupation  Himelberger,  57  Ind.  63;   Ballentine 

against  the  tenant  of  the  disseisor,  v.  McDowell,  3  111.   (2  Scam.)   38. 
although  such  tenant  attorns  to  him. 


5  306  PURCHASER  IN  POSSESSION.  1865 

another,  without  making  an  assignment  of  the  lease,  the  new 
occupant,  if  he  is  recognized  by  A  as  his  tenant,  and  recognizes 
A  as  his  landlord,  may  be  made  liable  in  use  and  occupation.^^,  56 

§  306.    Particular  classes  of  persons. 

a.  Person  entering  under  contract  for  lease.  If  one  enter 
under  a  contract  for  a  lease,^'''  or  merely  with  a  view  to  a  lease,^^ 
he  is  at  least  a  tenant  at  will,^^  and  may  be  made  liable  in  use  and 
occupation,  unless,  perhaps,  the  failure  to  obtain  a  lease  is  the 
fault  of  the  proposed  lessor.''^^'  ^^  Accordingly  it  was  held  that 
where,  an  intended  subtenant  having  entered,  the  superior  land- 
lord procured  an  injunction  to  restrain  the  making  of  a  sublease, 
the  former  was  liable  to  the  intending  sublessor  for  the  occu- 
pation from  the  time  of  the  injunction,  if  he  still  retained  pos- 
session.''2 

b.  Person  entering  under  contract  of  sale.  A  vendee  of  land 
entering,  by  reason  of  his  contract,  before  the  conveyance  to  him 
has  been  executed,  is,  as  Ave  have  before  seen  in  a  number  of 
jurisdictions,  not  regarded  as  a  tenant  of  the  vendor,^^  and  in 
such  jurisdictions  he  can  evidently  not  be  held  liable  in  an  action 
of  use  and  occupation  at  the  suit  of  the  latter.^^  In  jurisdictions 
in  which  he  is  regarded  as  the  tenant  of  the  vendor,  he  has,  under 
particular  circumstances,  hereafter  specified,  been  regarded  as  so 
liable,  but  even  in  those  jurisdictions  he  would  ordinarily  be  re- 
garded as  free  from  such  liability  if  the  conveyance  is  eventually 
inade  in  pursuance  of  the  contract,  for  the  reason  that  "the  price 
agreed  upon  is  presumed  to  be  a  sufficient  consideration  for  the 
intermediate  occupation  of  the  land,  as  well  as  the  ultimate  con- 
es, bo  Phipps  v.  Sculthorpe,  1  Barn.    v.   Smith,   33  N.  Y.  245;    Forbes  v. 

&  Aid.  .^0;   Darch  v.  McLeod,  16  U.  Smiley,   56    Me.   174;    Lyon  v.   Cun- 

C.  Q.  B.  614;   Blackburn  v.  Lawson,  ningham,   136   Mass.    532. 

2    Ont.   App.   215    (semble).       Com-  5s  Coggan  v.  Warwicker,  3  Car.  & 

pare  Hyde  v.  Moakes,  5     Car.  &  P.  K.  40. 

42,  wliere  it  was  said,  at  nisi  prius,  59  See  ante,  §  65,  at  note  49. 

that  there  must  be  an  "express  sub-  eo.ci  Rumball  v.  Wright,  1  Car.  & 

stitution   of   the    defendant   for   the  P.  589,  per  Best,  C.  J. 

original    lessee    as    tenant."    What  62  Fa-wkner    v.    Booth,    10    Times 

this  means  does  not  appear.  Law  R.  83. 

67  Dunne   v.    Trustees   of   Schools,  63  See  ante,  §  43  a. 

39  111.  578;  Little  v.  Martin,  3  Wend.  64  See  ante,  §  304. 
(N.  Y.)  219.  20  Am.  Dec.  688;  Greton 


1866  USE  AND  OCCUPATION.  §  30C 

veyance  of  the  title  of  it."°^  Likewise,  in  case  the  contract 
of  sale  is  not  carried  out,  owing  to  the  fault  of  the  vendor,  as 
when  his  title  is  defective,  or  he  refuses  to  make  the  conveyance, 
the  purchaser  is  not,  it  is  generally  agreed,  liable  for  use  and 
occupation,  since  the  entry  and  possession  cannot  be  regarded  as 
upon  an  understanding  that  compensation  was  to  be  paid  in  such 
an  event.^^  And  a  like  view  has  been  adopted  when  the  contract 
of  sale  was  rescinded  by  agreement.^''' 

Upon  the  question  whether,  when  the  contract  fails  to  be 
carried  out  by  reason  of  the  purchaser's  failure  to  comply  there- 
with, he  is  to  be  made  liable  for  the  time  of  his  occupancy  as 
upon  a  promise,  inferred  from  the  circumstances,  to  pay  there- 
for, the  cases  are  by  no  means  in  unison.  A  number  of  cases 
support  the  view  that  such  a  promise  may  be  inferred,^^  and 
the  fact  that  the  contract  of  sale  is  oral  and  so  unenforcible  by 
reason  of  the  Statute  of  Frauds  appears  to  be  immaterial  in  this 

65  Dennett  v.  Penobscot  Fair  dor  notifies  him  that  if  he  remains 
Ground  Co.,  57  Me.  425;  Carpenter  V.  in  possession  he  must  pay  rent. 
U.  S.,  84  U.  S.  (17  Wall.)  489.  To  Dwight  v.  Cutler,  3  Mich.  566,  64 
the  same  effect,  see  dictum  in  Gould  Am.  Dec.  105. 

V.    Thompson,    45    Mass.     (4    Mete.)  gt  Miles    v.    Elkin,    10    Ind.    329; 

224.     And     see     Johnson     v.     Beau-  Mariner  v.  Burton,  4  Har.   (Del.)  69. 

champ,  39  Ky.  (9  Dana)  124.  es  Patterson   v.    Stoddard,   47    Me. 

66  Winterbottom  v.  Ingham,  7  Q.  355,  74  Am.  Dec.  490;  Clough  v.  Hos- 
B.  611;  Bishop  v.  Clark,  82  Me.  532,  ford,  6  N.  H.  231;  Woodbury  v. 
20  Atl.  88;  Dodgen  v.  Camp,  47  Ga.  Woodbury,  47  N.  H.  11,  90  Am.  Dec. 
328;  Hough  v.  Birge,  11  Vt.  190,  34  555;  Dwight  v.  Cutler,  3  Mich.  566, 
Am.  Dec.  682;  Way  v.  Raymond,  10  64  Am.  Dec.  105;  Daviason  v.  Ernest, 
Vt.  371;  Little  v.  Pearson,  24  Mass.  7  Ala.  817;  Smith's  Ex'rs  v.  Hous- 
(7  Pick.)  301,  19  Am.  Dec.  289;  Knox  ton,  16  Ala.  Ill;  Smith  v.  Wooding, 
V.  Spratt,  19  Fla.  817;  Thompson  v.  20  Ala.  324;  Gould  v.  Thompson,  45 
Bower,  60  Barb.  (N.  Y.)  463;  Syl-  Mass.  (4  Mete.)  224;  Dunham  v. 
vester  v.  Ralston,  31  Barb.  (N.  Y.)  Townsend,  110  Mass.  440  (dictum); 
286;  Jones  v.  Tipton,  32  Ky.  (2  Sievers  v.  Brown,  34  Or.  454,  56  Pac. 
Dana)  295;  Johnson  v.  Beauchamp,  170,  45  L.  R.  A.  642.  But  see  Tucker 
39  Ky.  (9  Dana)  124;  Dwight  v.  v.  Adams,  52  Ala.  254;  Lyon  v.  Cun- 
Cutler,  3  Mich.  566,  64  Am.  Dec.  ningham,  136  Mass.  532;  King  v. 
105;  In  re  Kaas'  Estate,  2  Pa.  Co.  Ct  Johnston,  73  Mass.  (7  Gray)  239, 
R.  55;  Garvin  v.  Jennerson,  20  Kan.  to  the  effect  that  there  is  no  person- 
371;  Appeal  of  Bardsley  (Pa.)  10  al  liability  in  such  case  upon  the 
Atl.  39.  But  it  has  been  held  that  vendee  for  the  value  of  the  use  and 
even    in    such    case    the    vendee    is  occupation. 

liable  from  the  time  that   the   ven- 


»  2QQ  PURCHASER  IN  POSSESSION.  1867 

connection.69  In  other  cases  it  has  been  decided  that  the  de- 
faulting vendee  is  not  liable  in  an  action  for  use  and  occupation, 
but  that  the  vendor's  remedy  is  by  an  action  of  trespass  for  mesne 
profits.-^o  In  some  cases  it  is  broadly  stated  that  no  such  promise 
or  liability  to  pay  for  use  and  occupation  can  be  asserted  against 
a  purchaser  in  possession,  without  any  suggestion  being  made 
that  the  result  would  be  affected  by  the  purchaser's  breach  of  his 
contract."  In  one  case  it  was  decided  that  a  purchaser,  who 
rescinded  the  contract  of  sale  on  account  of  the  destruction  of  the 
building  on  the  premises,  was  so  liable  for  the  time  during  which 
he  was  in  possession.'^^ 

It  has  been  decided  that  if  the  purchaser,  having  entered 
under  the  contract  of  purchase,  continues,  by  the  vendor's  per- 
mission, to  occupy  after  the  contract  "goes  off,"  he  is  liable  m 
use  and  occupation  for  the  period  then  beginning,'^^  ^hile  if  he 

69  See  Doe  d  Whitney  v.  Cochran.  18  N.  J.  Law  (3  Har.)  214;  Byrd  v. 
2  111  (1  Scam.)  209;  Pierce  v.  Pierce,  Chase,  10  Ark.  602;  Newby  v.  Vestal, 
25  Barb.  (N.  Y.)  243,  and  cases  cited  6  Ind.  412;  Coffman  v.  Huck,  19  Mo. 
in  last  preceding  note.  435,440. 

TO  Smith   V.   Stewart,  6  Johns    (N.        ^2  Gould  v.  Thompson,  45  Mass.  (4 

Y  )  46  5  Am.  Dec.  186;  Bancroft  v.  Mete.)  224.  In  Lyon  v.  Cunnmg- 
Wardwell,  13  Johns  (N.  Y.)  489,  7  ham,  136  Mass.  532,  it  is  remarked 
Am  Dec  396;  McNair  v.  Schwartz,  that  Hull  v.  Vaughan,  6  Price.  157. 
16  111  24-  Vandenheuvel  v.  Storrs,  cited  in  Gould  v.  Thompson,  45 
3  Conn  203;  Tucker  v.  Adams,  52  Mass.  (4  Mete.)  224,  supra,  does  not 
Ala  254-  Denver,  T.  &  W.  Co.  v.  support  the  view  that  a  vendee  is 
Swem,  s'colo.  111.  5Pac.  836;    Stacy    liable  for  use  and   occupation.     See 

V  Vermont  Cent.  R.  Co.,  32  Vt.  551;    ante,  note  40. 

Brown  V.  Randolph  (Tex.  Civ.  App.)        "Howard    v.    Shaw,    8    Mees.    & 

62    S     W     981.     In    Clough    v.    Hos-    W.   118.     See    Michael   v.   Curtis,   60 

ford    6  N    H.  231.  and  Woodbury  v.    Conn.  363,  22  Atl.  949.     In  the  first 

Woodbury,  47  N.  H.  11,  90  Am.  Dec.    of    the    above     cases     the    contract 

555    it  was  held  that  either  action    "went  off"  because  of  a  quarrel  be- 

would  lie  at  the  vendor's  option.       tween  the  different  vendors,  the  pur- 

71  Pomeroy   v.   Bell.   118   Cal.   635,   chaser  then  demanding  back  his  de- 

50  Pac    683-   Barnes  v.  Shinholster.    posit,  and  continuing  in  possession 

14    Ga     131-    Fall    v.    Hazelrigg,    45    because    he     failed     to     receive     it. 

■Ind    576    15  Am.  Rep.  278;    Hopkins    Whether,   if   the  purchaser  had   not 

V  Ratliff   115  Ind    213,  17  N.  E.  288;    thus  shown  an  election  to  abandon 

Hogsett  V    Ellis,  17  Mich.  351;   Car-    the    contract,    he    would    have    been 

penter  v    U    S     84  U.  S.   (17  Wall.)    held   liable  for  use  and  occupation, 

489     (dictum);     Bancroft    v.    Ward-    does  not  appear.       There  seems   no 

well    13   Johns     (NY.)    489,  7  Am.    more   reason   for    imposing   liability 

Dec  396-  Brewer  v.  Conover's  Adm'r,    when  the  purchaser's  failure  to  ob- 


Ig68  USE  AND  OCCUPATION,  §  306 

SO  continues  in  possession  without  permission,  he  is  liable  as  a 
trespasser/^  and  whether  there  is  such  permission  to  continue 
his  occupancy  has  been  regarded  as  a  question  for  the  juryJ^  In 
one  place  it  was  even  decided  that  the  owner  of  a  building,  who 
removed  it  on  another's  land  by  permission,  pending  negotia- 
tions for  the  sale  of  the  building  to  the  latter,  was  liable  to  him 
by  reason  of  his  occupancy  of  the  land  by  the  building  after  the 
negotiations  had  failed,  and  he  had  been  notified  to  remove  the 
building.'^^  A  vendor  disaffirming  the  contract  on  the  ground 
that  he  was  not  of  full  age  at  the  time  of  making  it  has  been 
regarded  as  entitled  to  recover  for  the  vendee's  occupation  J''' 
Occasionally  the  contract  of  sale  contains  an  express  stipulation 
in  this  regard,  and  such  a  stipulation  is  bindingJ^  Thus,  it  may 
be  validly  provided  that  the  purchaser  shall  be  liable  for  rent 
during  the  period  of  his  occupation,'^^  even  though  the  contract 
fails  owing  to  defects  in  the  vendor's  title,s<^  or,  conversely,  the 
purchaser  may  be  exempted  from  liability  to  make  compensation 

tain  a  conveyance  Is  because  of  a  77  Weaver  v.  Jones,  24  Ala.  420. 
quarrel  between  his  vendors  than  ts  See  Vick  v.  Ayres,  56  Miss.  670. 
when  it  is  because  of  a  failure  of  his  70  Saunders  v.  Musgrave,  6  Barn, 
vendors'  title.  See  ante,  note  66.  &  c.  524;  Yeoman  v.  Ellison,  36  Law 
Howard  v.  Shaw,  8  Mees.  &  W.  118,  j.  c.  P.  326.  It  was  in  one  case  held 
is  cited  in  Crouch  v.  Tregonning,  L.  that  use  and  occupation  was  main- 
R.  7  Exch.  88,  where  it  was  decided  tainable  against  a  purchaser  upon 
that  one  who  entered  under  an  as-  his  failure  to  complete  his  payments, 
signment  of  a  leasehold,  which  was  the  contract  stipulating  that  he 
Invalid  because  not  under  seal  and  should  hold  the  premises  from  its 
because  not  assented  to  by  the  land-  date  as  a  tenant  at  sufferance,  sub- 
lord,  was  not  liable  in  use  and  occu-  jgct  to  removal  on  a  default  in  an 
pation  to  his  assignor,  although  the  installment  of  purchase  money,  and 
latter  continued  to  pay  the  rent.  ^j^^t  he  should  pay  the  taxes  and 
74  Markey  v.  Coote,  10  Ir.  R.  C.  L.  ^^^^  ^^^  premises  in  repair.  Wright 
149.     There  the  contract  "went  off" 


V.   Roberts,   22   Wis.   161. 

If  the  vendors  have  no  legal  inter- 
est in  common,  the  fact  that,  in  the 


because    the    vendee   failed    to    per- 
form a  certain  condition,  whereupon 

the  vendor  "rescinded"  the  contract, 

,    ,,  ,  ,,,   ■,^^^^   contract  of  each  with  the  purchaser, 

and   the  purchaser  was   held   liable  ^ 

from    the    time   of   such   rescission.  ^^  ^^  provided  that  the  latter  shall 

See,  also,  Belger  v.  Sanchez,  137  Cal.  Pay   rent,   does  not  enable  them   to 

614   70  Pac.  738.  ^^®     jointly.     Seaton     v.     Booth,     4 

75  Markey  v.  Coote,  10  Ir.  R.  C.  L.  Adol.  &  B.  528. 

149.  80  See    Barnes   v.    Shinholster,    14 

76  Michael  v.  Curtis,  60  Conn.  363,    Ga.  131. 
20  Atl.  949. 


306 


PURCHASER  IN  POSSESSION.  1869 


for  his  occupancy  although  he  would  otherwise  be  so  liable  as 
being  in  default.si  Not  infrequently  there  is  an  express  pro- 
vision that  if  the  vendee  fails  to  pay  installments  of  price  when 
due,  he  shall  become  liable  for  rent.^^ 

In  a  few  states  the  statute  provides  for  the  recovery,  in  certain 
cases,  of  a  reasonable  satisfaction  from  the  vendee  for  the  use 
and  occupation  of  the  land,  in  case  the  contract  fails  of  consum- 
mation.s^ 

As  appears  from  the  decisions  above  referred  to,  the  authorities 
bearing  upon  the  question  of  the  liability  for  use  and  occupation 
of  one  who,  having  a  contract  for  the  sale  of  land  to  him,  enters 
thereon  previous  to  the  making  of  the  conveyance,  are  in  con- 
siderable confusion.  The  view  has  been  previously  expressed  that 
such  vendee  is  properly,  as  being  in  possession  by  the  vendor's 
permission,  to  be  considered  a  tenant  of  the  vendor,^^  ^nd  con- 
ceding this  to  be  the  case,  the  only  question  is  whether  the  cir- 
cumstances are  such  as  to  justify  the  inference  of  a  promise  to 
pay  compensation  for  the  occupation.  That  they  are  not 
sufficient  for  this  purpose,  if  the  contract  is  eventually 
performed  by  the  making  of  a  conveyance,  has  been  de- 
cided,85  and  it  appears  to  be  settled  that  they  are  not  so  suffi- 

81  Welch  V.  Andrews,  50  Mass.  (9  Delaware  Rev.  Code  1893,  p.  867,  § 
Mete.)  78,  where  a  bond  was  given  14  (Action  lies  against  person  who 
for  a  conveyance  to  be  made  on  pay-  entered  under  contract  of  purchase 
ment  of  a  certain  sum  in  three  which  is  void  or  which  is,  before  the 
years,  with  interest,  the  obligee  to  action,  avoided  by  consent  of  the 
have  the  right  to  possession  without  parties,  or  otherwise  than  by  default 
paying  rent,  and  it  was  held  that,  of  the  vendor) ;  Illinois,  Hurd's  Rev. 
In  view  of  this  latter  clause,  the  St.  1905,  c.  80,  §  1  (When  possession 
obligee  was  not  liable  for  use  and  obtained  under  agreement,  written 
occupation  for  the  last  of  the  three  or  verbal,  for  purchase  of  the  prem- 
years,  though  he  failed  to  pay  in-  ises  and  before  deed  given,  the 
terest  for  such  year,  as  well  as  the  right  to  possession  is  terminated  by 
principal,  and  though  he  relin-  forfeiture  or  noncompliance  with 
quished  possession  at  the  end  of  the  the  agreement,  and  possession  Is 
year,  notifying  the  obligor  that  he  wrongfully  refused  or  neglected  to 
would  not  take  the  premises.  be    given    on    demand    in    writing). 

82  See  ante,  §  43  c.  See  Hadley  v.  Morrison,  39  111.  392. 

s^AlaMma  Code  1896,  §  2715  Arizona  Rev.  St.  1901,  §  2692,  is  sub- 
(When  defendant  is  let  into  posses-  stantially  the  same  as  the  Illinois 
sion   upon   a    supposed   sale   of   the    statute. 

lands  which,  by  reason  of  the  act  of       84  See  ante,  §  43  a,  at  notes  19-21. 
defendant,    is    not    consummated ) ;        85  See  ante,  at  note  65. 


ig70  USE  AND  CK3CUPATI0N.  §  306 

cient  if  the  conveyance  is  not  made  by  reason  of  the  vendor's 
default.^^  The  presumption  which  ordinarily  obtains,  that  one 
in  possession  by  permission  has  promised  to  pay  compensation 
thcrefor,^'^  would  seem,  however,  sufficient  to  suj^port  the  im- 
position of  liability  on  one  who  obtains  possession  by  entering 
into  an  agreement  of  purchase,  and  who  then  refuses  to  perform 
such  agreement,  and,  from  this  point  of  view,  the  fact  that  the 
agreement  is  unenforcible,  by  reason  of  the  Statute  of  Frauds 
or  othorwise,^^''  seems  rightly  to  be  regarded  as  immaterial. 

c.  Person  retaining  possession  aftsr  judicial  sale.  There  is 
not  ordinarily,  it  seems  clear,  any  such  relation  of  tenancy  as 
will  support  the  action  in  favor  of  a  purchaser  at  execution, 
judicial,  or  foreclosure  sale,  against  one  previously  in  possession 
who  holds  over  after  the  sale,^^  and  that  such  person  was  a  tenant 
under  a  lease  subsequent  to  the  lien  under  which  the  sale  was 
made  is  not,  it  is  conceived,  sufficient  to  show  such  relation.^'' 

A  person  who  purchases  land  at  a  judicial  or  e'xecution  sale, 
which  is  invalid,  is  not  the  tenant  of  the  person  whose  land  was 
thus  sold,   so   as  to  be  liable   to   him  in  use   and   occupation.^'^ 

d.  Tenant  holding  over.  A  tenant  holding  over  after  the  end 
of  his  term,  even  though  without  the  assent  of  the  landlord, 
has  been  held  liable  in  this  form  of  action  for  the  time  of  such 
holding  over.^i     ^he  fact  that  the  original  lease  was  under  seal 

86  See  ante,  at  note  66.  But  this  is  by  force  of  the  Pennsyl- 

87  See  post,  at  note  209.  vania      statute,      presumably.        See 
87a  See  ante,  at  note  69.  ante,  §  147,  at  notes  59-62.     In  Heid- 

88  See  Wyman  v.  Hook,  2  Me.  (2  elbach  v.  Slarler,  l  Handy  (Ohio) 
Greenl.)  337;  O'Donnell  v.  McMur-  457,  it  is  considered  that  a  notice  by 
die,  25  Tenn.  (6  Humph.)  134. ■*  In  such  purchaser  to  the  tenant,  requir- 
Illinois  (Hurd's  Rev.  St.  1905,  c.  80,  ing  the  rent  to  be  paid  to  him,  the 
§  1)  and  in  Arizona  (Rev.  St.  1901,  purchaser,  to  which  notice  the  ten- 
§  2692),  the  statute  provides  for  a  ant  maizes  no  reply,  is  sufficient  to 
recovery  by  the  purchaser  at  such  establish  the  relation  for  the  pur- 
sale  of  a  reasonable  satisfaction  as  pose  of  the  action.  Compare  cases 
against  a  person  refusing  to  relin-  cited  ante,  notes  30,  31. 

quish  possession.  ^^  Powell  v.   New  England  Mortg. 

89  Peters  v.  Elkins,  14  Ohio.  344,  is  Security  Co.,  89  Ala.  490,  8  So.  136, 
to  this  effect.  See,  also,  ante,  §§  73  e,  18  Am.  St.  Rep.  145;  Nance  v.  Alex- 
147,  180  h,  at  note  637.     In  Mozart  ander,  49  Ind.  516. 

Bldg.  Ass'n  V.  Friedjen,  12  Phila.  si  Bayley  v.  Bradley,  5  C.  B.  396 
(Pa.)  515,  it  is  decided  that  a  ten-  Leigh  v.  Dickeson,  15  Q.  B.  Div.  60 
ant  under  such  a  lease  is  so  liable.    Jenner  v.  Clegg,  1  Moody  &  R.  213 


I  306  TENANT  HOLDING  OVER.  1871 

does  not  prevent  such  liability  for  the  time  of  holding  over  after 
the  term  of  the  lease,  since  such  holding  over  is  not  under  the 
lease.^2  Thg  expired  lease  is  always  admissible  as  evidence  bear- 
ing on  the  amount  of  recovery,^^  though  not,  it  seems,  conclusive 
in  this  regard.^^ 

That  the  tenant,  departing  from  the  premises  at  the  end  of 
the  term,  leaves  his  furniture  thereon  with  a  subsequent  tenant,^^ 
or  leaves  a  few  other  articles  thereon  with  the  intention  of  aban- 
doning them,^^  does  not,  it  has  been  held,  involve  a  holding  over 
such  as  to  impose  liability  for  use  and  occupation.  Nor  is  there 
such  a  holding  over  merely  because  the  tenant  has  accepted  a 
lease  to  commence  at  the  end  of  the  prior  term,  he  having  re- 
linquished possession  during  such  term,^"  nor  because,  though  he 
abandons  possession  at  the  end  of  his  term,  he  subsequently 
resumes  possession  under  a  claim  of  title  adverse  to  his  land- 
lord.^^  There  is  a  holding  over  by  the  tenant  for  the  purpose  of 
imposing  liability  on  him,  if  his  sul^tenant  refuses  to  relinquish 
possession,^^  but  a  joint  lessee  is  not  so  liable,  it  has  been  decided, 
because  the  other  lessee  holds  over  without  his  consent.^o^    There 

"Weaver  v.   Southern  Oregon  Co.,  31  ance  of  the  tenant's  "surrender"  at 

Or.  14,  48  Pac.  167;   Osgood  v.  Dew-  the  end    of  the   term  as   precluding 

ey,  13  Johns.   (N.  Y.)    240;   Poole  v.  the  landlord  from  asserting  a  hold- 

Engelke,  61  N.  J.  Law,  124,  38  Atl.  ing  over.     "Surrender"  is  here  evi- 

823;    Schwoebel  v.  Fugina,  14  N.  D.  dently   used    as   meaning   the    relin- 

375,  104  N.  W.  848.     And  see  cases  quishment  of  possession,  which  the 

cited  ante,  §  211,  note  119.  parties  chose  to  evidence  by  a  writ- 

92Abeel  v.  Radcliff,  13  Johns.   (N.  ten  document.     There  evidently  can- 

Y.)    297,  7  Am.   Dec.  377;    Carter  v.  not  be  a  surrender  at  the  end  of  the 

Collar,  1  Phila.  (Pa.)  339  (semble);  term,  using  the  word  in  its  technical 

McFarlane  v.  Buchanan,  12  U.  C.  C.  sense,  since  there  is  no  leasehold  es- 

p.  591.  tate  remaining  to  be  surrendered. 

93  Weaver  v.  Southern  Oregon  Co.,  97  Wood    v.    Wilcox,    1    Denio    (N. 

31  Or.   14,  48  Pac.  167;   Atkinson  v.  Y.)    37. 

Winters,  47  "W.  Va.  226,  34  S.  E.  834.  as  Douglass  v.  Geiler,  32  Kan.  499, 

n-tSee    ante,    §    211,    note    123-124.  4  Pac.  1039. 

And  see  post,  note  232.  99  Ibbs    v.   Richardson,    9    Adol.    & 

95  Lore  V.  Pierson,  10  Daly  (N.  Y.)  E.  849. 

272.  100  Draper    v.    Crofts,    15    Mees.    & 

96Beeston    v.    Yale,    75    App.    Div.  w.  166;   Christy  v.  Tancred,  9  Mees. 
388,   78    N.   Y.   Supp.   158.     Compare  &  w.  438,  12  Mees.  &  W.  316.     Cross- 
cases  cited  ante,  §  207,  notes  14,  15;  well  v.  Crane,  7  Barb.  (N.  Y.)  191,  is 
§  209  c,  note  38.     In  the  above  cited  contra, 
case,  the  court  refers  to  the  accept- 


^572  USE  AND  OCCUPATION.  §  306 

is  a  decision  that  if  the  tenant  under  a  lease,  upon  the  expiration 
of  his  term,  renounces  the  title  of  the  landlord,  assumpsit  for  the 
subsequent  use  and  occupation  cannot  be  maintained.^"^ 

While  the  view  that  a  tenant  under  a  lease  who  holds  over  his 
term  is  liable  in  use  and  occupation  is  supported  by  numerous 
cases,  and  accords  with  the  theory  which  is  frequently  asserted 
that  a  tenant  at  sufferance  is  a  tenant  of  the  person  entitled 
to  the  possession,i<^2  j^  seems  on  principle  open  to  considerable 
question.  Such  a  tenant  holding  over  his  term  is  primarily  a 
wrongdoer,  and  would,  no  doubt,  be  liable  as  such  in  trespass 
for  mesne  profits,!'^^  and  to  hold  that  a  wrongdoer  may  be  sub- 
jected to  liability  in  an  action  for  use  and  occupation  is  un- 
doubtedly contrary  to  the  great  weight  of  authority,  as  appears 
from  cases  previously  cited.^'^^a  rpj^^  courts  have,  however,  ap- 
parently without  any  question,  undertaken  to  give  this  remedy 
against  a  tenant  sc  holding  over,  and  they  will  no  doubt  continue 
to  do  so.iosb 

It  has  occasionally  been  decided  that  if  one  holding  originally 
under  a  lease  from  a  life  tenant  continues  in  possession,  under 
the  terms  of  his  lease,  after  the  death  of  a  life  tenant,  he  is  liable 
in  use  and  occupation  to  the  remainderman.!*^^    These  decisions  are 

101  City   of   Boston   v.   Binney,    28  io3  See  ante,  §  212. 

Mass.  (11  Pick.)  1,  22  Am.  Dec.  353.  losa  See  ante,  §  304. 

Schwoebel  v.  Fugina,  14  N.  D.  375,  losb  it  has,  however,  been  decided 

104  N.  W.  848,  is  contra,  apparently,  that  if  the  landlord  brings  ejectment 

The  opinion  in  this  latter  case  states  against  the  tenant  holding  over,  he 

that  "the   defendant's   denial  of  his  cannot    recover   in  use   and   occupa- 

landlord's  title  was  in  law  a  repudi-  tion  for  the  time  subsequent  to  the 

ation   and   termination    of   the    ten-  demise  laid  in  the  declaration,  since 

ancy,  dispensing  with  notice  to  quit,  this    would    involve   an   attempt    to 

and  the  landlord  might  treat  it  as  treat   him   at   the   same   time   as   a 

a  disseisin,  as  has  been  done  by  com-  wrongdoer   and    as   one   in   rightful 

mencing  this  suit  to  recover,  not  the  possession.    Birch  v.  Wright,  1  Term 

agreed    rent,   but   the   value    of    the  R.   378. 

use  and  occupation."     That  the   ac-  104  Guthmann  v.  Vallery,  51  Neb. 

tion  of  use  and  occupation  is  based  824,  71  N.  W.  734,  66  Am.  St.  Rep. 

on  the  theory  of  a  disseisin,  to  the  475;  Hoagland  v.  Crum,  113  111.  365, 

exclusion    of    that    of    a    permissive  55    Am.    Rep.    424.     In    Carman    v. 

occupation,  is  obviously  contrary  to  Hosier,  105  Iowa,  367,  75  N.  W.  323, 

all  the  authorities.  "a  suit  in  equity"  by  the  remainder- 

102  See  ante,  §  15  a,  at  notes  568-  man  "for  the  use  and  occupation  of 

575_  the  land"  was  sustained. 


§  307  LIABILITY  OF  ASSIGNEE.  1873 

difficult  to  sustain  on  principle.  One  so  holding  over  is  within 
the  definition  of  a  tenant  at  sufferance,  ^^^  but  he  cannot  well  be 
regarded  as  the  tenant  of  the  remainderman,  with  whom  he  has 
undertaken  to  enter  into  no  relations,  and  who  is  in  no  privity 
with  the  person  who  made  the  lease.^"^*  The  person  so  holding 
over  is  an  entire  stranger  to  the  remainderman,  and  the  relation 
of  landlord  and  tenant  is  nonexistent  in  such  case. 

e.  Grantor  retaining"  possession.  The  question  whether  a 
grantor  remaining  in  possession  after  making  the  conveyance  can 
be  held  liable  to  the  grantee  in  use  and  occupation  would  depend 
primarily  upon  whether  he  can  be  regarded  as  a  tenant  of  the 
latter,^*^^  and  this  would  depend,  it  is  conceived,  on  whether  he 
retains  possession  by  permission  or  does  so  wrongfully.^o''  It 
being  conceded  in  the  particular  case  that  he  is  a  tenant  under 
the  grantee,  the  question  would  then  remain  whether  the  cir- 
cumstances are  such  as  to  exclude  the  inference  of  a  promise  to 
pay  for  the  use  and  occupation.^^^ 

§  307.    Liability  of  assignee. 

There  are  decisions  apparently  to  the  effect  that  the  assignee 
of  a  lease  is  not  liable  in  use  and  occupation  to  the  landlord, 
unless  he  has  entered  into  an  agreement  with  the  landlord, 
equivalent  to  a  new  demise.^^^  There  are,  however,  other  cases 
to  the  effect  that  the  assignee  of  a  lease,  who  enters  under  the 
assignment,  is  so  liable  without  any  new  agreement,^^'^  and  it  is 
difficult  to  see  why  this  should  not  be  so,  since  the  relation  of 
tenancy  exists,  and  the  fact  that  the  assignee  holds  under  the 
lease  would  be  ground  for  an  inference  of  a  contract  by  him  to 
pay  for  the  use  and  occupation.^ ^^     An  assignee,  however,  who 

105  See  ante,  §  15  a,  at  notes  572,  v.  Chapman,  1  Car.  &  K.  14;  Bedford 
573.  V.  Terhune,  30  N.  Y.  453,  86  Am.  Dec. 

105a  See  ante,  §  69  c.  394. 

106  See  Greenup  v.  Vernor,  16  111.  no  Wittman  v.  Milwaukee,  L.  S.  & 
26;  Preston  v.  Hawley,  101  N.  Y.  586,  W.  R.  Co.,  51  Wis.  89,  8  N.  W.  6; 
5  N.  E.  770;  Id..  139  N.  Y.  296,  34  N.  De  Pere  Co.  v.  Reynen,  65  Wis.  271, 
E.  906;  Larrabee  v.  Lumbert,  34  Me.  22  N.  W.  761;  Journeay  v.  Brackley, 
79;  Tew  v.  Jones,  13  Mees.  &  W.  12.  1  Hilt.  fN.  Y.)  447;  Electric  Tel.  Co. 

107  See  ante,  §  44.  v.  More,  2  Post.  &  F.  363. 

108  See  post,  §  317.  m  See  post,  at  note  209. 
100  Theater  Royal  Drury  Lane  Co. 

L.  qnd  Ten.  118. 


1874  USE  AND  OCCUPATION.  §  308 

does  not  actually  enter  under  the  assignment,  canaot  be  regarded 
as  occupying  or  holding  over,  so  as  to  be  liable  under  the  statute,!^^ 
and  he  cannot,  it  seems,  thus  be  made  liable  for  any  time  previous 
to  such  entry. 

An  assignee  of  the  lease,  who  has  assigned  over,  is  not,  it 
seems,  liable  for  subsequent  use  and  occupational^  j^ig  liability 
in  use  and  occupation  being  thus  no  greater  than  on  the  cove- 
nant for  rent.ii^  Presumably,  even  though  he  retains  posses- 
sion, he  would  not  continue  liable,  since  his  assignee,  and  not  he, 
is  the  tenant  under  the  original  lease,^^'^  and,  if  still  to  be  re- 
garded as  a  tenant,  his  holding  would  be  under  his  assignee  as  a 
subtenant,  and  not  under  such  lease. 

In  one  case  it  is  apparently  decided  that  one  obtaining  pos- 
session during  the  term  of  the  lease  is  to  be  presumed  to  be 
holding  as  assignee  and  tenant  of  the  lessor,  for  the  purpose  of 
supporting  recovery  against  him.^i®  This  corresponds  with  the 
ordinary  presumption  as  to  an  assignment.^^'^  But  in  another 
case  it  was  held  that  one  purchasing  improvements  from  a  tenant 
and  going  into  possession,  without  any  knowledge  of  the  tenancy, 
was  not  liable  in  use  and  occupation.i^s 

§  308.     Liability  of  executor  or  administrator. 

The  executor  or  administrator  of  a  deceased  tenant  is  liable  in 
his  representative  character,  in  an  action  for  use  and  occupation, 
for  the  time  the  possession  is  retained  by  him  after  the  tenant's 
death,ii9  but  for  this  purpose  the  compensation  must,  it  has  been 
decided,  be  alleged  to  be  due  under  a  contract  with  the  testator, 
as  otherwise  he  can  be  made  liable  only  personally. ^-^  When  sued 
personally  for  use  and  occupation,  the  executor  or  administrator 
may  show  that  he  entered  only  in  his  representative  capacity,  that 
he  has  no  assets,  and  that  the  value  of  the  land  is  less  than  the 
rent,  he  being  liable  only  for  the  amount  of  the  profits  of  the 

112  How  V.  Kennett,  3  Adol.   &  B.        ht  See  ante,  §  153. 

659;  Nation  V     ^ozer,  1  Cromp.  M.  &  us  Bailey    v.    Campbell,    2    111.    (1 

R.   172.  Scam.)   110. 

113  See  Camden  v.  Batterbury,  5  C.  us  Atkins  v.  Humphrey,  2  C.  B. 
B.  (N.  S.)   808.  654. 

11*  See  ante,  §  180  b.  12"  Wigrley    v.    Ashton,    3    Barn.    & 

115  See  ante,  §  158  a  (2)   (n)    (cc).    Aid.  101;  Nixon  v.  Quin,  2  Ir.  R.  G 
ii«  Page  V.  McGlinch,  63   Me.   472.    L.  248. 


.  3yg  ELECTION  AGAINST  TENANCY.  1875 

land,i2i  and  he  may  do  the  same  when  sued  in  his  representative 
eapacity.122 

In  order  to  impose  liability  in  use  and  occupation  on  the  execu- 
tor or  administrator  in  his  representative  capacity,  it  is  not  neces- 
sary that  he  actually  enter,  the  entry  of  the  decedent  being  suffi- 
cient for  this  purpose,^ 23  but  in  order  that  he  be  made  liable  per- 
sonally, he  must  have  entered,  and  must  have  done  so  as  assignee 
of  the  term  and  not  merely  in  his  representative  capacity .124  An 
entry  by  one  of  several  executors  will  not  operate  as  an  entry  by 
all,  so  as  to  make  them  jointly  liable  in  their  personal  capacity .125 

§  309.     Election  by  plaintiff  against  tenancy. 

Although  the  relation  of  landlord  and  tenant  originally  existed 
between  the  parties,  such  relation  is  regarded  as  having  ceased 
upon  the  election  by  the  landlord  to  treat  the  tenant  as  a  trespas- 
ser, as  indicated  by  the  bringing  of  an  action  of  ejectment  by  the 
former  against  the  latter,  so  as  to  prevent  recovery  for  the  use 
and  occupation  subsequent  to  the  commencement  of  the  action,i26 
or,  under  the  old  practice  in  ejectment,  subsequent  to  the  date  of 
the  demise  named  in  the  declaration  ;i 2 7  while  his  right  to  recover 
for  the  use  and  occupation  before  that  time  is  conceded.128  a 
judgment  for  the  landlord  in  the  action  of  ejectment  has,  in  two 
cases,  been  regarded  as  precluding  any  subsequent  recovery  for 
use  and  occupation,  the  theory  being  that  the  value  of  the  use 
could  have  been  recovered  in  that  action  under  a  claim  for  mesne 
profits.129 

A  mere  threat  by  the  landlord  to  treat  the  tenant  as  a  tres- 
passer has  been  held  not  to  prevent  a  recovery  for  subsequent  oc- 
cupation,i=5o  and  the  same  view  has  been  taken  with  reference  to 

i2iHopwood  V.  Whaley,  6  C.  B.  1  Wend.  (N.  Y.)  134;  Larrabee  v. 
744-  Patten  v.  Reid.  6  Law  T.  (N.  Lumbert,  34  Me.  79  (writ  of  entry), 
g  .  '231  127  Birch    V.    Wright,    1    Term    R. 

1221  Wms.  Saund.  (Ed.  1871)  124.  378;  Butler  v.  Cowles.  4  Ohio,  205. 
notes  to  Dean  of  Bristol  v.  Guyse.         19  Am.  Dec.  612. 

123  Atkins  V.  Humphrey,  2  C.  B.  128  Birch  v.  Wright,  1  Term  R. 
gg^  378;    National    Oil    Refining    Co.    v. 

124  Remnant      v.      Bremridge,      8    Bush,    88    Pa.    335. 

Taunt    191.  120  Goddard   v.    Hall,    55   Me.    579; 

125  Nation  v.  Tozer,  1  Cromp.  M.  &   Strong  v.  Garfield,  10  Vt.  502. 

T^   .^,^2  i-io  National    Oil    Refining    Co.    v. 

12G  Featherstonhaugn  v.  Bradshaw,   Bush,  88  Pa.  335. 


1876  USE  AND  OCCUPATION.  §  310 

his  denial  of  the  existence  of  the  relation.i^i  But  in  another  ju- 
risdiction a  threat  by  the  landlord  to  expel  the  tenant  and  the  as- 
sumption by  him  of  control  of  the  premises  have  been  regarded 
as  precluding  such  recovery  even  for  the  time  prior  to  the  adop- 
tion of  such  course  of  conduct.^^^ 

8  310.    Effect  of  existing  lease  to  a  stranger. 

It  has  been  said  that  the  existence  of  an  outstanding  lease  to  a 
third  person  precludes  a  recovery  in  use  and  occupation,^  ^^  but 
this  is  not  always  so.  If  one,  after  making  a  lease  to  one  person, 
makes  a  lease  to  another,  the  existence  of  the  first  lease  does  not 
affect  his  right  of  recovery  against  the  tenant  under  the  second 
lease,  since  a  defect  in  the  lessor's  title  at  the  time  of  making  the 
lease  is  no  defense  to  an  action  for  use  and  occupation,!^^  and  so, 
while  it  has  been  decided  that  a  firm  occupying  a  store  by  virtue 
of  a  lease  to  one  partner  cannot  be  held  liable  to  the  lessor  in  use 
and  occupation,  so  long  as  that  lease  is  still  outstanding,  even 
though  the  lessor  has  a  right  to  rescind  such  lease  for  fraud  in  its 
proeurement,^^^  this,  it  would  seem,  is  because  the  firm  are  not  the 
tenants  of  the  lessor,  rather  than  because  of  the  outstanding  lease, 
and  it  is  submitted  that  if,  after  the  discovery  of  the  fraud  and 
before  the  rescission  of  the  lease,  the  members  of  th«  firm  had 
agreed  to  hold  as  tenants  of  the  lessor,  they  might  have  been  held 
liable  in  use  and  occupation.  And  likewise,  while  it  has  been 
decided  that,  so  long  as  a  lease  to  joint  lessees  remains  in  force, 
the  lessor  cannot  recover  in  use  and  occupation  against  one  of 
such  lessees  and  another  person,i36  this,  it  would  seem,  is  because 
such  other  has  never  become  a  tenant  of  the  lessor,  and  not  be- 
cause the  plaintiff  in  the  action  has  previously  made  a  lease  to 
another  person.  And  so,  though  the  fact  that  a  subtenant  is  in 
possession  gives  no  right  to  the  lessor  in  chief  to  sue  such  sub- 
tenant in  use  and  occupation,i37  it  seems  that  if  the  subtenant 

131  Chambers  v.  Ross,  25  N.  J.  Law  134  Bedford  v.   Terhune,    30   N.  Y. 

(1  Dutch.)  293.  453,  86  Am.  Dec.  394;  Rogers  v.  Coy, 

i32Greton  v.  Smith,  33  N.  Y.  245.  164   Mass.   391.   41   N.   E.    652.     See 

i33Lenney  v.  Finley,  118  Ga.  718,  ante,  §  78  c  C^). 

45  S.  E.  593;   Journeay  v.  Brackley,  "5  Brooks  v.  Allen,  146  Mass.  201, 

1  Hilt.    (N.  Y.)    447;   Holman  v.  De  15  N.  E.  584. 

Lin-River-Finley  Co.,  30  Or.  428,  47  ise  r>oty  v.  Gillett,  43  Mich.  203,  5 

Pac.    708.     This    appears    to    be    as-  N.  W.   89. 

Bumed   In  People  v.   Gilbert,   64  111.  "7  Gage  v.  Smith,  14  Me.  466;  Bed- 

App.  203.  ford   v.   Terhune,  30   N.  Y.   453,   86 


§  311  PERSONS  WHO  MAY  SUE.  1877 

should  attorn  to  such  lessor  as  his  immediate  landlord,  he  might 
be  held  liable  by  the  latter  in  use  and  occupation,  even  though  he 
is  also  liable  to  his  immediate  lessor.^^s 

§  311.    Persons  who  may  sue. 

One  who  is  merely  a  trustee  may  sue  in  use  and  occupation, 
provided  a  contract  with  him  to  pay  for  the  occupancy  can  be 
inferred/ 3^  but  he  cannot  so  sue  if  the  only  contractual  relation 
of  the  occupant  is  with  the  cestui  que  tru^t?-'^^ 

One  who  has  merely  the  equitable  title  may  recover  in  this 
form  of  action,  provided  the  relation  of  tenancy  exists  and  the 
circumstances  sustain  an  implication  of  a  contract  to  pay  him  for 
the  value  of  the  occupancy,  as  when  the  occupant  entered  by  his 
permission,i4i  or  thereafter  paid  rent  to  him.^^^  Q^g  -^ho  enters 
under  a  demise  from  the  legal  owner  cannot  thus  be  made  liable 
to  the  holder  of  the  equitable  title,  there  being  no  contractual 
relation  on  which  to  base  the  recovery ,i  ^3  though  it  might  be 
otherwise  if  the  former  can  be  considered  to  have  acted  as  agent 
for  the  latter.i^^  It  is  on  this  principle,  apparently,  that  it  was 
decided  that  the  heir  of  a  ward  could  not  recover  against  one  oc- 
cupying under  a  lease  from  the  guardian.i'*^"^'*''' 

The  action  for  use  and  occupation  may  be  by  the  transferee  of 
a  lessor  against  the  tenant  under  the  lease,  as  well  as  by  the  les- 
sor himself,  the  effect  of  such  assignment  being  to  substitute  the 
transferee  as  landlord.^^^    It  seems,  however,  that  the  transferee 

Am.   Dec.   394;    Jennings  v.  Alexan-  "2  Dolby  v.  lies,  11  Adol.  &  E.  335. 

der,  1  Hilt.    (N.  Y.)    154.     See  Way  i"  Grady  v.  Ibach,  94  Ala.  152,  10 

V.    Holton,    46   Vt.    184;     Krider   v.  So.  287. 

Ramsay,  79  N.  C.  354.  "i  See  Morgell  v.  Paul,  2  Man.  & 

138  This  may  be  the  theory  of  the  R.  303. 

decision   in  McFarlan  v.  Watson,   3  145-147  Welles    v.    Cowles,   4    Conn. 

N.  Y.  (3  Comst.)  286,  the  opinion  in  182,  10  Am.  Dec.  115. 

which    is    very    obscure.     It    seems,  i48  Green  v.  London  Cemetery  Co., 

however,  that  there  was  a  surrender  9  Car.  &  P.  6;   Standen  v.  Chrismas, 

by   operation    of   law   in   this    case,  10  Q.  B.  135;  Peckham  v.  Leary,  13 

though  the  court  does  not  mention  N.    Y.    Super.    Ct.     (6    Duer)     494; 

"surrender."  Ryerss  v.   Farwell,  9  Barb.    (N.  Y.) 

139  See  Chapin  v.  Foss,  75  111.  280.  615;   Stewart  v.  Gregg,  42  S.  C.  392, 

140  Churchward  v.  Ford,  2  Hurl.  &  20  S.  E.  193;  Mussey  v.  Holt,  24  N. 
N.  446.  H.  248,  55  Am.  Dec.  234. 

1*1  Hull  v.  Vaughan,  6  Price,  157. 


1878  USE  AND  OCCUPATION.  |  311 

cannot  recover  for  use  and  occupation  for  a  period  prior  to  his 
assignment,  since  during  that  time  the  implication  was  of  a  con- 
tract to  pay  the  value  of  the  occupancy  to  the  assignor  only.^^^ 

The  heir,  and  not  the  personal  representative,  is  the  one  to 
bring  the  action  on  account  of  an  occupation  after  the  former 
owner's  death,^^^  provided  the  decedent's  interest  was  a  free- 
hold interest.  In  one  case  it  was  decided  that,  although  the  de- 
fendant had  been  the  tenant  of  plaintiff's  father,  if  he  denied 
the  title  of  plaintiff,  who  sued  as  his  father's  heir,  defendant  there- 
by became  a  disseisor  as  to  him,  and  so  was  not  liable  in  assump- 
sit.^ ^^  This,  it  seems,  must  refer  to  a  denial  of  the  plaintiff's  right 
of  succession,  since  defendant  cannot  deny  the  validity  of  the 
lessor's  title  at  the  time  of  the  demise. 

An  assignee  of  the  rent  alone,  without  the  reversion,  has  been  re- 
garded as  entitled  to  recover,  in  assumpsit  for  use  and  occupa- 
tion, the  equivalent  of  the  rent  reserved.^ ^^  This,  however,  seems 
questionable,  since  the  assignor,  who  retains  the  reversion,  remains 
the  landlord,  and  the  assignee  of  the  rent  cannot  properly  be 
regarded  as  such. 

In  case  the  tenant  remains  in  possession  after  his  term  by  the 
permission,  not  of  his  former  landlord,  but  of  one  to  whom  the 
latter  has  made  a  lease  to  commence  at  the  end  of  such  former 
term,  his  liability  is  not  to  his  former  landlord,  but  to  the  new 
lessee,^^^  and  the  same  view  as  to  his  liability  to  the  new  lessee  ap- 
pears to  have  been  taken  when  he  held  over  without  any  express 
permission. 1^^ 

Tenants  in  common  may  join  in  an  action  for  use  and  occupa- 

140  Mortimer  v.  Preedy,  3  Mees.  &  terra,  thus  wrongfully  excludes  the 

W.  602.  second    le.ssee,    can    properly    be    re- 

150  Shouse  V.  Krusor,  24  Mo.  App.  garded    as    a    tenant    of   the    latter. 

279.  but  that  he  is  liable  to  him  for  use 

iBi  Burdin  v.  Ordway,  88  Me.  375,  and  occupation  is   perhaps  a  neces- 

34  Atl.  175.  sary  consequence  of  the  view  (ante, 

is^Moffatt   T.    Smith,   4   N.    Y.    (4  §   306  d)    that  one  wrongfully   hold- 

Comst.)    126.  inp:  over  is  so  liable  to  his  lessor  in 

isn  Walker   v.    Tipton,    33    Ky.    (3  the  absence  of  a  second   lease.     By 

Dana)    3.  transferring  his  right  of  possession 

i")*  Pendergast  v.  Young,  21  N.  H.  to  another,  he  vests  such  other  with 

234.     It  is  difficult  to  see  how  a  first  all    rights    based    on    the    wrongful 

lessee    who,    after    the    end    of    his  possession  of  a  prior  lessee. 


s  312  AS  BETWEEN  TENANTS  IN  COMMON.  1879 

tion.i^^  In  case  of  the  death  of  one  of  such  tenants  in  common 
who  joined  in  the  demise,  the  right  of  action  is  in  the  survivor/^s 
in  accordance  with  the  general  rule  that  in  the  case  of  a  contract 
made  with  two  or  more  persons  jointly,  the  right  of  action  is  in  the 
survivor  or  survivors.^ '^^^ 

§  312.    As  between  tenants  in  common. 

Since  the  action  of  assumpsit  for  use  and  occupation  is  ordinar- 
ily maintainable  only  when  the  relation  of  landlord  and  tenant 
existSji-'^^  and  no  such  relation  ordinarily  exists  between  tenants 
in  common  and  joint  tenants,  the  action  will  not  usually  lie  in 
favor  of  one  such  cotenant  against  another,  although  the  latter 
alone  occupies  the  common  property. ^^^  Were  the  law  otherwise, 
one  cotenant  could,  by  refraining  from  taking  possession,  sub- 
ject the  other  to  the  alternative  of  refraining  from  taking  pos- 
session or  of  being  subjected  to  a  pecuniary  liability.  Occasionally 
it  is  stated,  or  intimated,  that  one  tenant  in  common  becomes  liable 
for  use  and  occupation  in  case  he  excludes  the  other  from  pos- 
session,i59  ^^t  this  liability  is  properly  a  liability  for  mesne  profits, 
since  the  exclusion  of  one  cotenant  by  the  other  cannot  make  the 
latter  a  tenant  of  the  former.^^*'  Furthermore,  in  some  states, 
an  action  of  account,  or  an  equivalent  equitable  proceeding,  may 
be  maintained  by  one  cotenant  against  another,  under  the  con- 

155  Cobb  V.  Kidd,  19  Blatchf.  560,  739.  In  Gage  v.  Gage,  66  N.  H.  282, 
8  Fed.  695;  Porter  v.  Bleiler,  17  29  Atl.  543,  28  L.  R.  A.  829,  there 
Barb.   (N.  Y.)   149.  is  a  suggestion  that  the  action  does 

156  Cobb  V.  Kidd,  19  Blatchf.  560,  8  lie,  and  it  is  said  that,  however  this 
Fed.  695;  Pesmire  v.  Brock,  25  Ark.  may  be,  a  declaration  in  this  form 
20;    Dell  v.  Gardner,  25  Ark.   134.  may  be  amended  by  filing  a  bill  in 

i5Ga  See  ante,  §  55  b,  at  note  93.  equity.     There   is   a   strong  dissent- 

157  See  ante,   §  304.  ing  opinion. 

158  Fielder  v.  Shields,  73  Ala.  576;  i59  See  Badger  v.  Holmes,  72  Mass. 
Porter  v.  Hooper,  11  Me.  170;  Rey-  (6  Gray)  118;  Austin  v.  Ahearne,  61 
nolds  V.  Wilmeth,  45  Iowa,  693;  N.  Y.  6;  Reynolds  v.  Wilmeth,  45 
Belknap  v.  Belknap,  77  Iowa,  71,  41  Iowa.  693;  Belknap  v.  Belknap,  77 
N.  W.  568;  Hamby  v.  Wall,  48  Ark.  Iowa,  71,  41  N.  W.  568;  Holmes  v. 
135,  2  S.  W.  705,  3  Am.  St.  Rep.  218;  Williams,  16  Minn.  164;  Thompson 
Everts  v.  Beach,  31  Mich.  136,  18  v.  Jones,  77  Tex.  626,  14  S.  W.  222. 
Am.  Rep.  169;  Webster  v.  Calef,  47  leo  Porter  v.  Hooper,  11  Me.  170; 
N.  H.  289,  93  Am.  Dec.  433;  Kline  v.  Cook  v.  Wfbb,  21  Minn.  428;  Wil- 
Jaoobs,  68  Pa.  57;  Wilbur  v.  Wilbur,  marth  v.  Palmer,  34  Mich.  347. 

54  Mass.  (13  Mete.)  404,  46  Am.  Dec. 


1880  USB  AND  OCCUPATION.  §313 

struetion  there  placed  upon  the  statute  of  4  &  5  Anne,  c.  16,  with 
reference  to  accounting  as  between  cotenants,  or  by  reason  of  a 
local  statute  of  a  more  or  less  similar  nature.^ ^'^^  This  is  some- 
times referred  to  as  an  action  for  use  and  occupation,  but  it  is 
evidently  entirely  distinct  from  the  action  based  on  the  rela- 
tion of  landlord  and  tenant  which  is  the  subject  of  the  present 
chapter. 

Though  the  relation  of  landlord  and  tenant  does  not  ordinarily 
exist  between  cotenants,  it  is  possible,  as  we  have  before  stated,^^^ 
for  one  cotenant  to  make  a  lease  to  another,  and  in  such  ease,  pro- 
vided the  lease  is  not  under  seal,  the  action  of  use  and  occupation 
may  be  maintained.^  ^- 

Since  one  to  whom  a  cotenant  makes  a  lease  of  his  undivided 
interest  is,  for  the  term  of  the  lease,  himself  a  cotenant,  he  is  not 
a  tenant  of  the  owner  of  the  other  undivided  interest,  and  is  con- 
sequently not  liable  to  him  in  an  action  for  use  and  occupation.^^^ 

§  313.    5n  case  of  lease  under  seal. 

The  English  statute  gives  a  right  of  action  only  "where  the 
agreement  is  not  by  deed,"  and  the  state  statutes^ ^^  ordinarily  con- 
tain a  similar  provision.  It  has  accordingly  been  held  that,  if  there 
is  a  demise  under  seal,  the  proper  form  of  action  is  debt  or  cove- 
nant, and  that  assumpsit  for  use  and  occupation  will  not  lie.^^^ 

i6oa  Freeman,  Cotenancy  (2d  Ed.)  i64  See  references  to  statutes  ante, 

§§  276-284.  note    8.     In    Alabama    the    statute 

101  See  ante,    §   71   c.  (Code   1907,    §   4753)    expressly  pro- 

i«2Chapin    v.    Foss,    75    111.    280;  vides  that  a  reasonable  satisfaction 

Boley  V.  Barutio,  24   111.  App.  515;  may  be  recovered,  if  no  specific  rent 

Id.,  120  111.  192,  11  N.  E.  393;  Kites  agreed  on,  "when  there  has  been  a 

V.   Church,  142   Mass.    586,   8    N.   E.  demise  by  deed  or  by  parol." 

743;  Kline  v.  Jacobs,  68  Pa.  57;   Ca-  1 65  West  v.    Cartledge,   5   Hill    (N. 

boon  V.  Kinen,  42  Ohio  St.  190.     In  Y.)    488,  40  Am.  Dec.  364;   Kiersted 

Wilbur    V.    Wilbur,     54    Mass.     (13  v.  Orange  &  R.  R.  Co.,  69  N.  Y.  343, 

Mete.)    404,   46    Am.    Dec.    739,    and  25  Am.  Rep.  199;   North  v.  Nichols, 

Gowen  v.  Shaw,  40  Me.  56,  it  is  said  37  Conn.  375;  Codman  v.  Jenkins,  14 

that  an  express  promise  is  necessary  Mass.  93;  Hawkes  v.  Young,  6  N.  H. 

to  create  the  liability.  300;  Trustees  of  Donations  v.  Street- 

103  Badger  v.  Holmes,  72  Mass.   (6  er,  64  N.  H.  106,  5  Atl.  845;  Blume  v. 

Gray)  118;  Austin  v.  Aheame,  61  N.  M(^Clurken,    10    Watts     (Pa.)     380; 

Y.  6.     But  Nott  V.  Owen,  86  Me.  98,  Dungey  v.  Angove,  2  Ves.  Sr.   307; 

"9  Atl.  943,  41  Am.  bt.  Rep.  525,  is  Boulton  v.  Defries,  2  U.  C.  Q.  B.  432. 

rrrarently  contra.  The    Arkansas    statute     (Kirby's 


s  313  LEASE  UNDER  SEAL.  1881 

And  in  Massachusetts  it  has  been  decided  that,  though  the  distinc- 
tions between  the  different  forms  of  action  are  abolished,  since  the 
plaintiff  is  required  to  set  forth  the  substantive  facts  constituting 
his  cause  of  action,  there  cannot  be  a  recovery  of  rent  under  a 
sealed  lease  in  an  action  in  terms  for  use  and  occupation.i^^s  i^ 
Michigan  it  is  held  that,  in  view  of  the  local  statute  authorizing 
assumpit  on  contracts  under  seal,  an  action  for  use  and  occupa- 
tion may  be  maintained  in  the  case  of  such  a  lease.^^^ 

In  one  case  it  is  apparently  decided  that  the  clause  in  the 
statute  prohibiting  the  action  in  case  "the  agreement  is  by  deed" 
docs  not  apply  in  case  the  rent  is  apportioned  as  to  quantity,  so 
that  the  recovery  can  be  of  a  portion  only  of  the  rent  reserved.i^^ 
Such  a  view  has  never  been  suggested  in  any  other  case,  and  the 
view  indicated  in  the  opinion,  that  the  effect  of  such  apportion- 
ment is  to  substitute  a  parol  agreement  for  that  under  seal,  ap- 
pears most  questionable. 

The  fact  that  one  holds  by  reason  of  an  executory  agreement 
under  seal  for  the  making  of  a  lease  does  not,  it  has  been  decided, 
prevent  recovery  in  assumpsit  for  use  and  occupation,^  ^^  a  view 
which  is  apparently  justified,  unless  the  instrument  itself  provides 

Dig.   St.   1904,   §    4700),  authorizing  It  would  seem  that,  after  the  pres- 

the  recovery  of  fair  and  reasonable  ence   of  a   seal   has   become   imma- 

compensation  by  action  on  the  case  if  terial  by  reason  of  the  abolition  of 

lands  are  occupied  without  any  spe-  seals,  the  provision  of  the  statute  as 

cial   agreement   for   rent,   has   been  to  an  agreement  "by  deed"  becomes 

held  not  to  authorize  such  action  in  meaningless    and    might    be    disre- 

case  of  a  demise  under  seal,  since  garded. 

the  previous  sections,  giving  a  right  lee  Warren  v.  Ferdinand,  91  Mass. 

of  action   upon   agreements   "except  (9  Allen)    357;    Smuey  v.  McLauth- 

by   deed,"   would  otherwise  be   ren-  lin,  138  Mass.  363. 

dered  nugatory.    Byrd  v.  Chase,  10  io7  Dalton    v.   Laudahn,    30    Mich. 

Ark.  602.  349;    Beecher   v.    Duffield,    97    Mich. 

In  Edmunds  v.   Missouri  Elec.  L.  423,  56  N.  W.  777. 

&  P.  Co.,  76  Mo.  App.  610,  the  ma-  les  McCardell  v.  Miller,  22  R.  I.  96, 

jority  opinion  seems  to  consider  that  46  Atl.  184.     It  does  not  clearly  ap- 

the  fact  that  the  instrument  is  un-  pear  that  the  demise  was  under  seal, 

der  seal  does  not  make  it  a  "deed"  but  presumably  it  was  so,  since  had 

within  the  statutory  provision,  this  it  not  been  under  seal  the  objection 

partly    for    the    reason    that    seals  would  not  have  been  made  that  the 

have  been   abolished   in   that  state,  action  should  be  in  covenant  and  not 

but  that  whether  the  instrument  is  in  assumpsit. 

a  deed  is  a  question  of  construction.  i69  Elliott  v.  Rogers,  4  Esp.  59. 


1882  USE  AND  OCCUPATION.  §  3I4 

for  the  immediate  possession  of  the  intended  lessee.  Though 
one  originally  held  under  a  sealed  lease,  he  Is  not  regarded  as  so 
holding  if  he  continues  in  possession  after  the  term,  and  for  such 
subsequent  period  he  may  be  made  liable  in  this  form  of  action.^ '^° 

§  314.    Necessity  of  actual  occupancy. 

An  action  for  use  and  occupation  does  not  lie  against  one  who 
has  not  entered  upon  the  premises  in  person  or  by  others.^ '^^ 
Entry  by  one  of  several  persons  jointly  entitled  will,  however, 
be  sufficient  to  impose  liability  on  all.i'^^  ^jj^  j^  ^j^g  g^^gg  of  a^jj 
action  against  executors  in  their  representative  capacity,  entry  by 
their  testator  is  equivalent  to  entry  by  them.^'^^ 

It  has  been  decided  that  the  cleaning  of  the  premises  by  an 
agent  of  defendant  is  a  sufficient  entry  to  make  defendant  liable, 
if  this  is  an  act  of  possession,  while  it  does  not  have  this  effect 
if  merely  preliminary  to  further  investigation  before  taking  a 
lease.i'''^  Likewise,  the  digging  of  holes  in  the  soil  merely  to  deter- 
mine its  fitness  for  mining  purposes  is  not  an  entry  for  this  pur- 
pose ;i75  while  putting  up  a  "to  let"  notice, ^^^  and  taking  rent 
from  some  of  the  occupants  and  procuring  attornments  from 
others,  have  each  been  regarded  as  imposing  liability  on  a  lessee 
so  doing,!'^'^  the  entry  in  the  latter  case  being  "constructive,"  as 
being  made  through  the  subtenants.i^^  i^  ^^s  likewise  been  held 
that  there  was  a  constructive  occupation  by  a  lessee  when,  at  the 
time  of  taking  the  lease,  he  arranged  with  a  tenant  under  a  pre- 

iTOAbeel  v.  Radcliff,  13  Johns.  (N.  363;  Goshorn  v.  Steward,  15  W.  Va, 

Y.)   297,  7  Am.  Dec.  377.     See  ante.  657;    Kendall    v.    Garland,   59   Mass. 

§   306  d;    Garter  v.   Collar,  1  Phila.  (5  Gush.)  74,  51  Am.  Dec.  44. 

(Pa.)   339   (semble).  its  Atkins   v.   Humphrey,   2   C.   B. 

inLowe    v.    Ross,    5    Exch.    553;  654. 

Edge  V.  Strafford,  1  Gromp.  &  J.  391;  174  Lewis  v.  Havens,  40  Conn.  363; 

Tully  V.  Dunn,  42  Ala.  262,  94  Am.  Smith  v.  Twoart,  2  Man.  &  G.  841. 

Dec.  646;    Wood  v.  Wilcox,  1  Denio  I's  Jones  v.  Reynolds,  7  Gar.  &  P. 

(N.  Y.)   37;   Maitland  v.  Wilcox,  17  335. 

Pa.   231.     So   it  was  held   that   one  itg  Sullivan  v.  Jones,  3  Car.  &  P. 

who  promised  to   pay  rent   for  his  579. 

parents,  who  alone  were  in  occupa-  177  Neal  v.   Swind,   2  Gromp.  &  J. 

tion,  was  not  liable  in  this  form  of  377. 

action.     Tobie  v.  Smith,  28  Me.  106.  its  gee,  also,  Bull  v.  Sibbs,  8  Term 

"2  Glen    V.    Dungey,    4    Exch.    61;  R.  327. 
Elec.  Tel.  Go.  v.  Moore,  2  Fost.  &  F. 


§  314  NECESSITY  OF  ACTUAL  OCCUPANCY.  1883 

vious  lease  from  the  same  lessor,  whose  term  had  not  expired,  that 
during  the  residue  of  the  term  such  previous  lessee  should  hold 
under  him.^^^  The  question  whether  there  has  been  an  entry 
within  this  requirement  is  one  of  fact.^s*^ 

If  the  time  of  occupation  is  specified,  as  when  one  enters  under 
a  lease  for  a  fixed  term,  he  remains  liable  until  the  term  comes 
to  an  end,  although  he  relinquishes  possession  at  a  time  prior 
thereto. 181  In  such  cases  he  ''holds"  within  the  meaning  of  the 
statute,  which  imposes  liability  "for  the  use  and  occupation  of 
what  was  held  and  enjoyed,  "^^^  and  it  has  been  decided  that 
even  an  amendment  of  the  statute  omitting  the  word  "held"  did 
not  alter  the  rule  in  this  regard.^^^  T^e  original  tenant  has  been 
regarded  as  "holding"  and  so  liable  under  the  statute,  even 
though  he  has  assigned  his  leasehold  interest,  provided  the  as- 
signee has  not  been  accepted  as  tenant  by  the  landlord.^s*  But 
one  who  enters  under  a  lease  does  not  "hold"  under  a  lease  made 
to  him  which  is  to  begin  after  the  previous  lease,  if  he  relinquishes 
possession  before  the  commencement  of  such  subsequent  lease,  and 
he  is  consequently  not  liable  in  use  and  occupation  after  the  term 
of  the  first  lease.^^^ 

179  McGunnagle    v.    Thornton,    10  C.   Q.  B.   609.     In  Carroll  v.  Finna- 

Serg.  &  R.  (Pa.)  251.  gan,  1  Cranch,  C.  C.   234,  Fed.  Gas. 

if^o  Franklin  Tel.  Co.   v.  Pewtress,  No.  2,453,  the  contrary  opinion  is  ex- 

43  Conn.  1G7;    Bacon  v.  Parker,  137  pressed,  v/ith  some  diffidence  and  no 

Mass.   309.     And  see  cases  cited   in  discussion.     In    Beach    v.    Gray,    2 

preceding  notes.  Denio    (N.  Y.)   84,  it  was  held  that 

It  has  been  held  that,  to  show  that  the   lessee  was  not  liable  from  the 

one  has  had  the  use  and  occupation  time  of  the  making  of  a  lease  by  the 

of    the    premises,    evidence    that    he  landlord  to  another,  upon  the  orig- 

owned  the  personal   property  there-  inal  lessee's   relinquishment  of  pos- 

on  is  admissible.     P.  P.  Emory  Mfg.  session.     There  was  here,  it  seems, 

Co.  V.  Rood,  182  Mass.  166,  65  N.  E.  a    surrender    by    operation    of    law. 

58.  See  ante,  §  190  d. 

isi  Westlake  v.  DeGraw,  25  Wend.  i82  Walker   v.    Furbush,    65    Mass. 

(N.  Y.)   669;  Tully  v.  Dunn,  42  Ala.  (11  Cush.)   366,  59  Am.  Dec.  148. 

262,  94  Am.  Dec.  646;    Lockwood  v.  iss  Hall  v.  Western  Transp.  Co.,  34 

Lockwood,    22    Conn.    425;     McGun-  N.  Y.  284;   Hoffman  v.  Delihanty,  13 

nagle  v.   Thornton,   10      Serg.  &  R.  Abb.  Pr.   (N.  Y.)   388. 

(Pa.)    251;    Bessell   v.   Landsberg,  7  is*  Shine  v.  Dillon,  1  Ir.  R.  C.  L. 

Q.  B.  638;  Pinero  v.  Judson,  6  Bing.  277. 

206;    Gibson  v.   Courthope,   1   Dowl.  is.',  Wood  v.  Wilcox,  1   Denio    (N 

&  R.  205;   Hughes  v.  Brooke,  43  U.  Y.)    37. 


1884  USE  AND  OCCUPATION.  |  314 

As  a  tenant  for  years,  although  he  relinquishes  possession,  re- 
mains liable  until  the  tenancy  is  properly  terminated,  so  a  tenant 
at  will  or  periodic  tenant  should,  it  seems,  remain  liable  until  the 
tenancy  is  legally  terminated  by  the  giving  of  the  required  notice 
to  quit,  irrespective  of  whether  the  tenant  retains  or  relinquishes 
possession.  There  are  decisions  to  that  effect,^^^  while  by  one  de- 
cision the  relinquishment  of  possession  is  regarded  as  terminating 
the  tenant's  liability,  no  amount  of  rent  having  been  specified  at 
the  time  of  the  demise,  though  a  specific  rent  was  paid  and  ac- 
cepted through  a  series  of  months.^  ^'^'  ^^^ 

The  holding  or  occupation  referred  to  by  the  statute  must  be 
of  the  same  exclusive  nature  as  exists  in  any  other  case  of  a  several 
tenancy,  and,  consequently,  one  who  merely  uses  the  land  occa- 
sionally by  permission,is9  or  one  who  merely  boards  with  the  occu- 
pant of  the  land,^^*^  or  one  who-  is  allowed  by  the  owner  to  occupy 
jointly  with  him  in  consideration  of  a  share  in  his  business,^^^  is 
not  liable  in  this  form  of  action.  A  tenant  who  left  his  furniture 
on  the  premises  with  a  subsequent  tenant  was  held  not  to  be  in 
possession  so  as  to  be  subject  to  liability,^ ^^  ^nd  it  is  difficult  to 
see  how,  in  any  case,  the  mere  fact  that  one  has  goods  on  the  premi- 
ses, the  exclusive  right  to  the  possession  of  which  is  in  another, 
can  be  regarded  as  making  him  a  tenant  of  such  other,  and  so  lia- 
ble in  use  and  occupation.  It  has,  however,  been  decided  that  where 
machinery  was  left  on  the  premises  by  one  who  had  conveyed 
tlie  premises  to  another,  and  such  grantor  failed  to  remove  it 
upon  notice  from  the  grantee  to  do  so,  he  was  liable  in  use  and 
occupation,^93  g,  decision  which  can,  it  seems,  be  supported  only 

180  Walker  v.  Furbusii,  65  Mass.  family  is  not  liable  as  "occupant" 
(11  Cush.)  366,  59  Am.  Dec.  148;  under  a  state  statute  providing  that 
Currier  v.  Perley,  24  N.  H.  219;  Bes-  the  occupant,  without  special  con- 
sell  V.  Landsberg,  7  Q.  B.  638;  Small-  tract,  of  any  land,  shall  be  liable  for 
wood  V.  Sheppards  [1895]  2  Q.  B.  rent.  Tinder  v.  Davis,  88  Ind.  99. 
627.  101  Carver  v.  Palmer,  33  Mich.  342. 

187,188  Sanford      v.      Johnson,      26  i92  Lore  v.  Pierson,  10  Daly  (N.  Y.) 

Minn.  314,  4  N.  W.  43.  272.     See  Beeston  v.  Yale,  75   App. 

isoHogsett  V.  Ellis,  17  Mich.  351.  Dlv.   388,  78  N.  Y.  Supp.  158,  ante, 

i»o  Theological    Inst.    v.    Barbour,  note  96.     And  compare  ante,  §  207, 

70  Mass.    (4   Gray)    329.     So  it  was  notes  14,  15;    §  209  c,  note  38. 

h<=>ld   that   one   who   lives   with    thft  isa  Grove  v.  Barclay,  106  Pa.  155. 
lessee  of  land  as  a  member  of  his 


316 


fLEADING.  1885 


on  the  theory  that  such  failure  to  remove  the  machinery  was 
evidence  of  a  demise  to  the  grantor. 

§  315.    Rent  reserved  in  kind. 

It  has,  in  Canada,  been  decided  that  there  is  no  right  of  action 
for  use  and  occupation  when,  by  the  terms  of  the  lease,  the  rent 
is  to  be  paid  in  produce,  since  this  negatives  any  contract  to  pay 
in  money.19'*  A  statute  authorizing  one  to  whom  rent  is  due, 
where  the  demise  is  not  by  deed,  or  where  the  deed  does  not 
specify  the  amount  of  rent,  to  recover  a  reasonable  satisfaction  for 
the  tenement,  has  been  decided  not  to  authorize  a  recovery  in  this 
form  of  action  when  there  is  an  agreement  for  rent  to  be  paid 
in  specific  articles,  the  value  of  which  does  not  appear  from  the 
agreement.i^^  On  the  other  hand,  it  has  been  decided  in  Arkan- 
sas that  if  a  tenant,  who  is  to  pay  rent  by  making  repairs,  fails 
to  make  them,  the  owner  may  consider  the  contract  as  "re- 
scinded," and  sue  for  use  and  occupation  ;^36  and  in  Ohio  it  is 
said  that  a  landlord  entitled  to  a  certain  portion  of  the  crop  may 
recover  the  market  value  of  such  portion  under  a  count  for  use 
and  occupation.i^'^ 

§  316.    Pleading. 

The  declaration  on  the  common  count  for  use  and  occupation 
formerly  contained  allegations  that  the  defendant  was,  at  a  cer- 
tain date,  indebted  in  a  certain  sum  for  the  use  and  occupation  of 
certain  premises  of  the  said  plaintiff  by  the  said  defendant,  at  his 
special  instance  and  request,  and  by  the  sufferance  and  permis- 
sion of  plaintiff,  and  that  afterwards  in  consideration  thereof,  on 
said  date,  the  said  defendant  undertook  and  faithfully  promised 
to  pay  said  sum  of  money. ^^^  It  was  unnecessary  to  give  a  par- 
ticular description  of  the  premises,^^^  or  to  state  the  particulars 

i94Wallis  V.  Harrold,  23  U.  C.  Q.  seq.,   giving   forms   taken   from   the 

B.  279.  earlier  editions  of  CTiitty's  Pleading. 

195  Oswald  V.  Gadbold,  20  Ala.  811;  Also  Archbold's  Landl.   &  Ten.    (53 

Eastland  v.  Sparks,  22  Ala.  607.  Law  Library)    150. 

1S6  Tate  V.  McClure,  25  Ark.  168.  i99  Guest    v.     Caumont,    3    Camp. 

197  Butler   V.   Baker,    50   Ohio    St.  235;  Kirtland  v.  Pounsett,  1  Taunt. 

584.  570;  Plummer  v.  Bowie,  76  Me.  496; 

108  See  18  Enc.  of  Forms,  p.  609  et  Comyn,  Landl.  &  Ten.  452. 


I8S6  USE  AND  OCCUPATION.  §  317 

of  the  demise.^°°  By  the  English  Common  Law  Procedure  Act  of 
1852,  the  form  of  all  the  common  counts  was  simplified,  and  there- 
under a  count  for  use  and  occupation  was  sufficient  if  in  form  for 
money  payable  by  the  defendant  to  the  plaintiff,  for  the  defen- 
dant's use  and  occupation,  by  the  plaintiff's  permission,  of  a  cer- 
tain tenement,  or  of  certain  lands,  of  plaintiff,  or  for  money  pay- 
able for  the  use  and  occupation  of  a  certain  tenement  hired  of  the 
plaintiff  by  the  defendant.^^^ 

The  question  of  the  sufficiency  of  the  pleading  in  this  form  of 
action  has  but  seldom  arisen  in  this  country.  The  declaration  or 
complaint  should  show  that  the  occupation  or  holding  by  defen- 
dant was  by  permission  of,  or  in  subordination  to,  the  plaintiff.^o^ 
But,  under  the  code  system  of  pleading,  it  is  unnecessary  to  al- 
lege a  promise  to  pay,  it  has  been  decided,  provided  the  facts 
giving  rise  to  the  inference  of  a  promise  are  stated,'°^  and  it  has 
even  been  held  sufficient  to  aver  that  defendant  used  and  occu- 
pied premises  with  the  permission  of  plaintiff's  transferor,  there- 
by becoming  his  tenant  and  indebted  to  him  for  the  use  and  occu- 
pation thereof,  in  such  sums  as  the  same  was  worth,  alleged  to  be 
a  sum  named.204-206 

§  317.    Evidence  and  presumptions. 

There  are  authorities  to  the  effect  that  one  occupying  land  be- 
longing to  another  is  to  be  presumed,  for  the  purpose  of  support- 
ing an  action  for  use  and  occupation,  to  be  the  tenant  of  such 
other  •j^o'''  while  there  are  occasional  decisions  to  the  contrary,  that 
the  plaintiff  in  such  action  has  the  burden  of  showing  the  relation 
of  tenancy.208 

2oo"Wilkins  v.  Wingate,  6  Term  R.  B.  295,  as  explained  in  Churchward 

62.  V.  Ford,  2  Hurl.  &  N.  446;   Oakes  v. 

201  See  2  Chitty,  Pleading  (16th  Oakes,  16  111.  106;  Alexander  v.  Al- 
Am.  Ed.)    184.  exander,  52  111.  App.  195;  Lathrop  v. 

202  Hall  V.  Southmayd,  15  Barb.  Standard  Oil  Co.,  83  Ga.  307,  9  S.  E. 
(N.  Y.)  32;  Bradley  v.  Davenport,  6  1041;  Skinner  v.  Skinner,  38  Neb. 
Conn.  1;  Hunton  v.  Powers,  38  Mo.  756.  57  N.  W.  534;  Hogsett  v.  Ellis, 
353.     See  ante,  §  304.  17  Mich.  351;    Page  v.  McGlinch.  63 

203  Wills  V.  Wills,  34  Ind.  106:  Me.  472;  Sterrett  v.  Wright,  27  Pa. 
Morris  v.  Niles,  12  Abb.  Pr.   (N.  Y.)  259. 

103.  208  Preston   v.    Hawley,   101   N.   Y. 

2o*-206  Walker    v.    Mauro,    18    Mo.  586,    5    N.    E.    770;    Alt   v.   Gray,    26 

564.  Misc.  843.  56  N.  Y.  Supp.  657;   Mar- 

207Hellier  v.  Sillcox,  19  Law  J.  Q  latt  v.  Marlatt,  4  Penny.  (Pa.)  91. 


§317 


EVIDENCE  AND  PRESUMPTIONS.  1887 


Assuming  that,  in  the  particular  case,  the  permissive  possession 
necessary  to  sustain  the  action  exists,  the  question  then  arises  as 
to  the  existence  of  a  promise  to  pay  for  the  use  and  occupation. 
The  cases  are  generally  to  the  effect  that  there  is  a  presumption 
in  favor  of  the  existence  of  such  a  promise,^^^  and  it  is  in  this 
sense  only,  it  seems,  that  the  promise  can  be  said  to  be  implied  by 
the  law.  The  law  implies  the  promise  in  the  absence  of  evidence 
to  show  a  contrary  understanding. 

That  one  occupying  by  another's  permission  does  so  under  such 
circumstances  as  to  preclude  any  inference  of  a  promise  to  pay 
compensation  therefor  may  always  be  shown  as  a  matter  of  fact.^io 
So  the  fact  that  one  occupied  premises  upon  the  request  of  the 
owner  that  he  move  thereon  in  order  to  look  after  them  has  been 
held  to  exclude  any  inference  of  a  promise  to  pay  for  the  occu- 
pation,2ii  as  was  the  fact  that  the  defendant  had  taken  posses- 
sion under  a  stipulation  that  he  should  not  be  liable  for  rent  till 
certain  conditions  were  fulfilled,  they  being  yet  unfulfilled.212 

The  fact  that  the  occupant  is  a  near  relative  of  the  owner  will 
not,  it  has  been  decided,  necessarily  exclude  the  inference  of  a 
promise  to  pay  for  the  occupancy,  though  it  no  doubt  is  evidence 
bearing  on  the  question  ;2i3  and  it  has  been  decided  in  one  case 

209  Carpenter  v.  U.  S.,  84  U.  S.  (17  442,  21  N.  E.  114;  Lamb  v.  Lamb, 
Wall.)  489;  Cobb  v.  Kidd,  19  Blatcbf.  146  N.  Y.  317,  41  N.  E.  26;  Thompson 
560,  8  Fed.  695;  Chambers  v.  Ross,  v.  Cox,  20  Misc.  421,  45  N.  Y.  Supp. 
25  N.  J.  Law,  293;  Kenwood  v.  1046;  Becker  v.  Davis,  87  N.  Y.  Supp. 
Cheeseman,  3  Serg.  &  R.  (Pa.)  500;  422;  Loague  v.  City  of  Memphis,  75 
Marlatt  v.  Marlatt,  4  Penny.  (Pa.)  Tenn.  (7  Lea)  67;  Chamberlin  v. 
91;   Wilkinson  v.  Wilkinson,  62  Mo.  Donohue,  44  Vt.  57. 

App.    249;    Ackerman  v.   Lyman,   20  211  Fleming   v.    Hughes    (Miss.)    6 

Wis.  454;  Wittman  v.  Milwaukee,  L.  So.    842;    Strickland   v.    Hudson,    55 

S.  &  W.  R.  Co.,  51  Wis.  89,  8  N.  W.  Miss.     235;      Middleton's     Ex'rs     v. 

6;    Chamberlin   v.    Donahue,   44   Vt.  Middleton,   35   N.   J.   Eq.    (8    Stew.) 

57.     In  Watson  v.  Brainard,  33  Vt.  141. 

88,  it  is  said  that  when  the  occupa-  212  Toronto    Hospital    Trustees    v. 

tion  is  by  permission,  a  promise  to  Heward.  8  U.  C.  C.  P.  84. 

pay  is  inferred  from  slight  circum-  213  Story    v.    McCormick,    70    Kan. 

stances.  323,  78  Pac.  819;  Sterrett  v.  Wright, 

210  Sherwin  v.  Lasher,  9  111.  App.  27  Pa.  259;  Appeal  of  Spackman,  4 
(9  Bradw.)  227;  Reed  v.  Lander,  68  Penny.  (Pa.)  171;  Oakes  v.  Cakes, 
Ky.  (5  Bush)  21  (semble);  Barron  16  111.  106;  Harlan  v.  Emery,  46 
V.  Marsh,  63  N.  H.  107,  56  Am.  Rep.  Iowa,  538.  Compare  Lamb  v.  Lamb, 
496;    Welcome    v.    Labontee,    63    N.  146  N.  Y.  317,  41  N.  E.  26. 

EL  124;  Collyer  v.  Collyer,  113  N.  Y. 


1883  USE  AND  OCCUPATION.  §  317 

that,  in  view  of  the  modern  statutes  placing  the  husband  and  wife, 
as  regards  their  property  rights,  in  the  position  of  strangers  to 
each  other,  a  husband  who  lives  apart  from  his  wife  and  is  in 
exclusive  possession  of  the  wife's  land,  with  her  knowledge,  is 
presumed  to  be  her  tenant  and  liable  to  her  for  compensation  for 
his  occupancy.214 

The  fact  that  one  who  enters  on  land  without  permission  from 
another  expressly  refuses  to  hold  under  such  other  or  to  pay  any 
rent  to  him  for  the  land,  precludes  any  liability  on  his  part,^!^ 
and  so  it  was  held  that  in  the  case  of  an  attaching  officer,  who 
expressly  refuses  to  assume  responsibility  for  rent,  though  he 
leaves  the  goods  on  the  premises,  a  promise  on  his  part  cannot  be 
inferred.^^^ 

There  are  decisions  to  the  effect  that  if  the  owner  tells  another 
that  he  can  occupy  the  land  at  a  certain  rent,  and  thereafter  the 
latter  enters  and  occupies,  he  is  to  be  regarded  as  having  accepted 
the  terms  proposed  and  as  liable  accordingly,2i7  even  though  he 
expressly  objects  to  such  terms. ^is 

As  before  stated,^^^  plaintiff's  lack  of  title  is  no  defense  to  an 
action  for  use  and  occupation,  and  any  statement  to  the  contrary 
seems  due  to  misapprehension.^^o    The  only  respect  in  which  title 

214  Skinner  v.  Skinner,  38  Neb.  but  that  the  conventional  relation  of 
756,  57  N.  W.  534.  landlord     and     tenant     exists.     The 

215  See  Keyes  v.  Hill,  30  Vt.  759.  cases  cited  in  support  of  this  state- 

216  Cook  V.  Medbury,  150  Mass.  ment  do  not  assert  the  necessity  of 
499,  23  N.  E.  225.  showing    title.     In    Churchward    v. 

217  Dickson  v.  Moffatt,  5  Colo.  114;  Ford,  2  Hurl.  &  N.  446,  Bramwell,  B., 
Coit  V.  Planer,  4  Abb.  Pr.  (N.  S.)  says  that  "in  Standen  v.  Chrismas, 
140;  Id.,  30  N.  Y.  Super.  Ct.  (7  Rob.)  10  Q.  B.  135,  Lord  Denman  appears 
413.  to  have  been  mistaken  in  supposing 

218  Thompson  v.  Sanborn,  52  Mich,  that  the  statute  (of  11  Geo.  2,  c.  19) 
141,  17  N.  W.  730.  But  a  different  gave  a  right  of  action  to  the  owner 
decision  was  rendered  when  defend-  of  the  land.  The  word  'landlord' 
ant  had  refused  the  terms  proposed  does  not  mean  the  lord  of  the  soil, 
and  entered  under  a  lease  from  an-  but  the  person  between  whom  and 
other.  Hennessy  v.  Hoag,  16  Colo,  the  tenant  the  relation  of  landlord 
460,  27  Pac.  1061.  and    tenant    exists."     In    the    state- 

210  See  ante,  §  78  c  (4).  ment  in  Douglass  v.  Geiler,  32  Kan. 

220  In  Preston   v.  Hawley,  101  N.  499.  4  Pac.  1039,  that  there  can  be  no 

y.  586,  5  N.  E.  770.  it  is  said  to  be  recovery     for     use    and     occupation 

necessary  to  prove  not  only  that  the  without    proof    of    title,   the   phrase 

title  to  the  premises  is  in  plaintiff,  "use    and    occupation"    Is    used.    It 


.  3^g  AMOUNT   OP  RECOVERY.  1889 

can  be  material  in  such  an  action  would  seem  to  be  in  connection 
with  the  doctrine  before  referred  W^  that  one  occupying 
another's  land  is  presumed,  for  the  purpose  of  this  action,  to  be  m 
as  tenant,  it  resulting  that,  if  plaintiff  seeks  to  recover  without 
direct  proof  of  the  relation  of  tenancy,  he  must  prove  his  title, 
that  is,  his  right  to  the  possession  of  the  land  except  as  against 
defendant. 

§  318.    Amount  of  recovery. 

a.  When  no  rent  reserved.  The  plaintiff  must,  it  appears,  in 
the  absence  of  a  contract  for  a  specific  rent,  give  some  evidence  of 
the  value  of  the  use  and  occupation.222  jn  case  there  is  no  express 
agreement  as  to  rent,  the  quanium  of  recovery  is  the  reasonable 
value  of  the  occupation  which  has  actually  been  enjoyed,^^^  or, 
as  it  has  been  otherwise  expressed,  the  rental  value  of  the  land,22^ 
and  this  rule  was  applied  when  the  parties  thought  they  had 
agreed  on  the  rent,  but  they  had  not  done  so.^^s  In  case  of  an 
occupancy  for  part  of  the  year  only,  the  recovery  is  of  the  value 
of  the  occupation  for  that  time,  and  not  a  pro  fanto  part  of  the 
yearly  value. 226 

The  value  of  the  occupancy  of  a  house  built  on  the  premises  by 
the  tenant  during  his  occupancy  cannot,  it  has  been  decided,  be 
included  in  the  recovery ,227  and  if  a  demise  expressed  to  be  of 
particular  land  is  not  proven  the  recovery  can  be  only  for  that 
actually  oecupied.228 

The  purpose  for  which  the  property  is  used  is,  it  is  said,  to  be 
considered,229  but  if  the  premises  are  adapted  for  a  particular  use 
the  tenant  must,  it  has  been  decided,  be  held  liable  with  reference 
to  that  use,  though  he  utilizes  them  in  such  a  way  as  to  make  them 

seems,     as     equivalent     to  ''mesne        225  Scrantom    v.    Booth,    29    Barb. 
Profits."  (N.  Y.)  171. 

,       ^       ^    „„„  226Hane3  v.  Worthm^on,  14  Ind 

221  See  ante,  at  note  207. 

222Ambrose  V.Hyde,  145  Cal.  555,  ^\l^  ^^^^^^    ^     Sanford,    13    Iowa, 

79  Pac.  64.  ^^^ 

223  Town  of  Thetford   v.  Tyler,   8  228  Missouri  Pac.  R.  Co.  v.  Atchi- 

Q.  B.  95;  Newell  v.  Sanford,  13  Iowa,  ^^^^  ^3  j^r^^^   ^29,  23  Pac.  610;    Steele 

191.  V.  Thayer,  36  Minn.   174.   30  N.  W. 

224Robbins    v.    Voss     (Tex.     Civ.  755 

App.)    64   S.   W.    313;     Blackman  v.  229  Lindt  v.  Llnder,  117  Iowa,  110, 

Kessler,  110  Iowa,  140,  81  N.  W.  185.  90  N.  W.  596. 

L.  and  Ten.  119. 


1890  USB  AND  OCCUPATION.  §  318 

less  valuable.230  The  fact  that  the  premises  are  particularly  val- 
uable to  him,  and  that,  if  not  occupied  by  him,  they  would  have 
been  vacant,  has  been  regarded  as  immateriaL^^i  The  rent  of 
the  premises  in  previous  years  may  be  considered,232  but  not  the 
selling  value  of  the  premises.233 

The  question  seems  not  to  have  been  discussed  whether  on-^ 
who,  under  a  demise  of  particular  land,  which  fails,  however,  to 
name  any  rent,  enters  on  and  occupies  a  part  only  of  such  land, 
is  liable  for  the  reasonable  value  of  the  occupation  of  the  whole 
land.  Presumably  he  would  be  so  liable,  on  the  theory  that  his 
entry  on  part  is  to  be  regarded  as  constructively  an  entry  on  all. 

Interference  by  the  landlord  with  the  tenant's  enjoyment,  even 
if  it  does  not  amount  to  an  eviction,  may  be  considered  in  deter- 
mining the  value  of  the  beneficial  enjoyment,  it  has  been  de- 
cided.234 

b.  When  specific  rent  reserved.  The  language  of  the  English 
statute  11  Geo.  2,  c.  19,  §  14,  as  well  as  that  of  the  American 
statutes  based  thereon,  expressly  makes  the  demise  or  agreement, 
if  not  under  seal,  evidence  bearing  on  the  amount  of  the  re- 
covery.234a  This  provision  of  the  statute  has  been  regarded  as 
making  the  demise  conclusive  in  this  regard, 234b  ^j^^  ^^^jg  seems 

23oLindt  V.  Linder,  117  Iowa,  110,  decided    that    where    the    pleading 

90  N.  W.  596.  states   an   implied   contract,   no  evi- 

231  Newberg  v.  Cowan,  62  Miss  dence  of  an  express  contract  is  ad- 
570.  missible,  and  there  is  an  intimation 

232  Fogg  V.  Hill,  21  Me.  529.  to  that  effect  in  Maurer  v.  Grimm, 

233  Cahoon  v.  Kineon,  46  Ohio  St.  84  App.  Div.  575,  82  N.  Y.  Supp.  760. 
590.  234b  King   v.    Woodruff,    23    Conn. 

234  Boston  &  W.  R.  Corp.  v.  Rip-  56,  60  Am.  Dec.  625;  North  v.  Nich- 
ley,  95  Mass.  (13  Allen)  421.  ols,  37  Conn.  375;   Holmes  v.  Stock- 

234a  That   the   express   contract  or  ton,   26    N.   J.   Law    (2   Dutch.)    93; 

demise  may  be  admitted  as  evidence  Goshorn  v.  Steward,  15  W.  Va.  657; 

in  this   regard,  see   Warne  v.   Pren-  Gretton  v.  Mees,  7  Ch.  Div.  839  (sem- 

tiss,  9  Mo.  544;   Kline  v.  Jacobs,  68  ble).     There  is  a  dictum  contra  in 

Pa.  57;  Burnham  v.  Best,  49  Ky.  (10  Cleves  v.  Willoughby,  7  Hill  (N.  Y.) 

B.  Mon.)   227:    Stockett  v.  Watkins,  83;     and    in    Hermann   v.    Curiel,    3 

2  Gill  &  J.    (Md.)   326,  20  Am.  Dec.  App.  Div.  511,  38  N.  Y.  Supp.  343,  it 

438;    Sargent  v.   Ashe,   23   Me.   201;  was   decided  that  one  entering  into 

Perrine  v.  Hankinson,  11  N.  J.  Law  part  only  of  the  premises  leased  was 

(6  Halst.)  181;  Goshorn  v.  Steward,  not  liable  for  the  whole  amount  of 

15    W.    Va.    657.     But    in    Shiner    v  the  rent  reserved,  but  only  for  the 

Abbey,  77  Tex.  1,  13  S.  W.  613,  it  is  value  of  the  use  of  that  part,  the  oth- 


§  318  AMOUNT  OP  RECOVERY.  1891 

to  be  the  meaning  of  the  statement  occasionally  found  that,  in 
case  there  is  an  express  contract,  no  other  can  be  implied.^^s  It 
seems  reasonable  that  the  compensation  recoverable  for  the  hold- 
ing and  occupation  of  the  premises  under  an  express  demise  should 
not  be  allowed  to  vary  as  the  landlord  may  elect  to  sue  for  rent 
under  the  express  agreement  or  reservation,  or  for  the  value  of  the 
use  and  occupation. 

In  accordance  with  this  view,  that  the  recovery  in  use  and 
occupation  must  be  the  same  as  if  the  action  were  brought  upon 
the  reservation  of,  or  covenant  to  pay,  rent,  are  decisions  that  cir- 
cumstances suspending  or  terminating  the  liability  for  rent  as  such 
have  the  effect  of  preventing  or  restricting  the  recovery  in  an 
action  for  use  and  occupation.  Thus,  it  has  been  decided  that 
where  the  tenant  has  surrendered  his  term  between  rent  days,  the 
rent  not  being  apportionable,  the  landlord  cannot,  in  an  action 
of  use  and  occupation,  any  more  than  in  debt  or  covenant,  re- 
cover compensation  for  the  unexpired  period,^^^  and  that  if  the 
lessor  terminates  the  tenancy  during  a  rent  period,  under  a  power 
reserved  in  the  lease,  he  cannot  recover  in  use  and  occupa- 
tion for  the  previous  portion  of  that  period,237  and  there  are 
decisions  in  other  connections  that  the  landlord  cannot,  by  adopt- 
ing this  form  of  action,  recover  the  equivalent  of  an  apportioned 
part  of  the  rent,238  There  are  indeed  dicta  to  the  effect  that,  in 
case  of  an  eviction  by  title  paramount,  there  can  be  a  recovery 
in  this  form  of  action  for  occupation  since  the  last  rent  day,23» 
but  these  have  been  questioned,24o  and  there  is  a  decision  directly 
to  the  contrary  ;24i  and  since  there  cannot  be  a  recovery  of  an 

er  part  being  accessible  only  by  a  35  A&.  Dec.  600.    And  so  in  case  of 

separate  entrance.  the  landlord's  termination  of  a  ten- 

235  Mussey  v.  Holt,  24  N.  H.  248,  ancy  at  will   during  a  rent  period. 
55  Am.  Dec.  234;   North  v.  Nichols,  Robinson  v.  Deering,  56   Me.   357. 
37  Conn.  375;   Grimman  v.  Legge,  8       238  Collett  v.  Curling,  10  Q.  B.  785; 
Barn.  &  C.  324;  Stockett  v.  Watkins,  Stanley  v.  Turner,  68  Vt.  315,  35  Atl. 
2  Gill  &  J.    (Md.)    326,  20  Am.  Dec.  321. 

438.  239  Fitchburg  Cotton  Mfg.  Corp.  v. 

236  Grimman  v.  Legge,  8  Barn.  &  Melven,  15  Mass.  268;  Wheeler  v. 
C.  324;    Hall  v.  Burgess,  5  Barn.  &    Shed,  1  D.  Chip.  (Vt.)  208. 

C.   332.  240  Nicholson  v.  Munigle,  88  Mass. 

237  Nicholson  v.  Munigle,  88  Mass.    (b   Allen)    215. 

(6  Allen)    215,  disapproving  dictum       241  Anderson    v.    Bobbins,    82    Me. 
in  Zule  v.  Zule,  24  Wend.  (N.  Y.)  76,    422.  19  Atl.  910,  8  L.  R.  A.  568. 


1892  USB  AND  OCCUPATION.  §  318 

apportioned  part  of  the  rent  qua  rent,242  it  seems  difficult  to  sus- 
tain the  recovery  of  compensation  for  occupation  equivalent  to 
such  apportioned  rent. 

As,  by  suing  in  use  and  occupation,  the  landlord  cannot  obtain 
in  effect  an  apportionment  of  rent  to  which  he  would  not  be  en- 
titled if  suing  for  rent  itself,  so,  it  is  submitted,  he  cannot,  by 
adopting  that  form  of  action,  obtain  a  reduction  of  the  rent  merely 
because  the  premises  are  not  so  desirable  as  anticipated.  There 
are  indeed  decisions  in  England  to  the  effect  that  it  is  a  good  de- 
fense, in  an  action  for  use  and  occupation  against  one  holding 
under  a  parol  demise,  that  he  has  had  no  beneficial  occupation  ow- 
ing to  the  condition  of  the  premises  as  regards  repairs,  or  to  the 
presence  of  a  nuisance  thereon,243  but  these  decisions  have  been 
overruled.244  In  one  state  in  this  country  these  decisions  have 
been  referred  to  without  disapproval,^^^  and  in  another  their 
doctrine  has  apparently  been  adopted,^^^  but  generally,  it  is 
believed,  the  courts  will  not  permit  the  tenant,  by  choosing  this 
form  of  action,  thus  in  effect  to  impose  obligations  on  the  land- 
lord, which  do  not  otherwise  exist,  as  to  the  condition  of  the  premi- 
ses.247  lu  accordance  with  this  view  are  the  cases  in  which, 
though  the  action  was  for  use  and  occupation,  the  right  of  re- 
covery was  regarded  as  unaffected  by  the  previous  destruction 
of  the  buildings  on  the  premises,^^^  though  the  decisions  would 

242  See  ante,  §  182  e  (2)  (a),  245  Gilhooley  v.  Washington,  4  N. 
notes  874-878.  Y.  (4  Comst.)  217. 

243  Edwards  v.  Etherington,  Ryan  246  Kline  v.  Jacobs,  68  Pa.  57, 
&  M.  268;  Cowie  v.  Goodwin,  9  Car.  which  latter  case  cites  3  Stephen's 
&  P.  378;  Collins  v.  Barrow,  1  Moody  Nisi  Prius  2722,  which  is  based  on 
&  R.  112;  Salisbury  v.  Marshal,  4  the  English  decisions  above  referred 
Car.  &  P.  65.  to. 

244  Sutton  V.  Temple,  12  Mees.  &  24-  in  Potter  v.  Truitt,  3  Har. 
W.  52;  Hart  v.  "Windsor,  12  Mees.  &  (Del.)  331,  the  fact  mat  the  landlord 
W.  68;  Manchester  Bonded  Ware-  had  failed  to  comply  with  his  cot- 
house  Co.  V.  Carr,  5  C.  P.  Div.  507.  enant  to  repair,  and  so  rendered  the 
See  ante,  §  86  a.  In  these  cases  the  occupancy  less  beneficial,  was  re- 
earlier  decisions,  cited  in  the  pre-  garded  as  a  factor  in  determining 
ceding  note,  are  regarded  as  laying  the  amount  of  recovery. 

down  a  general  rule  as  to  the  land-  24?  izon  v.  Gorton,  5  Bing.  N.  C 
lord's  obligation  as  to  the  condition  501;  Baker  v.  Holtpzaffell,  4  Taunt, 
of  the  premises,  and  the  question  45.  In  Holmes  v.  Stockton,  26  N.  J. 
whether  the  action  is  for  use  and  Law,  93,  it  was  decided  that  the  re- 
occupation  or  for  rent  seems  to  be  covery  was  not  to  be  diminished  be- 
regarded  as  immaterial.  cause    buildings    on    the    adjoining 


§  318  AMOUNT  OF  RECOVERY.  1893 

presumably  have  been  different  had  there  been  no  express  provi- 
sion as  to  rent. 

In  the  case  of  an  eviction  by  title  paramount  from  part  of  the 
premises,  as  the  tenant  is,  in  an  action  for  rent,  entitled  to  an  ap- 
portionment as  to  quantity,-^^  so,  in  an  action  for  use  and  occupa- 
tion, he  is  liable  for  the  reasonable  value  of  that  part  of  the 
premises  only  whicli  he  has  enjoyed  without  interruption.^^o  if 
the  partial  eviction  is  by  the  landlord,  he  cannot  recover  in  use 
and  occupation  for  the  part  retained  by  the  tenant,^^^  as  he  can- 
not do  so  in  an  action  for  rent.-^^ 

The  fact  that  the  demise  is  invalid  under  the  Statute  of  Frauds 
does  not  affect  its  admissibility  for  the  purpose  of  fixing  the  value 
of  the  occupation,253  it  being  recognized  that  if  the  parties  under- 

land   made  the  premises  less  desir-  B.  680,  5  Moore,  558,  as  explained  In 

able  than  at  the  time  of  the  lease.  Neale   v.   McKenzie,    1   Mees.   &  W. 

In  Smith  v.  Eldridge,  15  C.  B.  236,  747;   McFadin  v.  Rippey,  8  Mo.  738. 

the  tenants  were  held  liable  for  use  And    a    total    eviction    excludes    all 

and    occupation,    though   the    lessor  further  liability.    Welch  v.  Adams, 

had  not  made  repairs  as  agreed,  and  42  Mass.  (1  Mete.)  494. 
though  the  making  of  such  repairs       251  Christopher  v.  Austin,  11  N.  Y. 

was  expressly  made  precedent  to  the  (1  Kern.)    216.     Compare  Lawrence 

recovery  of  rent.     The  opinion  says  v.  French,  25  Wend.   (N.  Y.)   443,  7 

that  "if  the  defendants  did  not  en-  Hill,  519. 

ter  under  the  agreement,  there  was  252  See  ante,  §  182  e  (1)  (b). 
evidence  whence  it  might  be  in-  253  Zachry  t.  Nolan,  14  C.  C.  A. 
f erred  that  they,  by  their  tenant  B,  253,  66  Fed.  467;  Crawford  v.  Jones, 
entered  under  an  implied  agreement  54  Ala.  459;  Walker  v.  Shackelford, 
to  pay  so  much  as  the  occupation  49  Ark.  503,  5  S.  W.  887,  4  Am.  St. 
was  reasonably  worth."  The  state-  Rep.  61;  King  v.  Woodruff,  23  Conn, 
ment  of  facts  says  that  the  defend-  56,  60  Am.  Dec.  625;  Evans  v.  WI- 
ants,  by  their  tenant  B,  took  pos-  nona  Lumber  Co.,  30  Minn.  515,  16 
session  "under  the  agreement."  If  N.  W.  404;  Nash  v.  Berkmeir,  83  Ind. 
the  decision  means  that  if  one  takes  536;  Barlow  v.  Wainwright,  22  Vt. 
possession  under  a  lease  which  re-  88,  52  Am.  Dec.  79;  Calvert  v.  Simp- 
serves  rent  to  be  paid  only  after  the  son,  24  Ky.  (1  J.  J.  Marsh.)  547; 
making  of  repairs  by  the  lessor,  he  Herrmann  v.  Curiel,  3  App.  Div.  511, 
is  liable  for  use  and  occupation  even  38  N.  Y.  Supp.  343;  Hellams  v.  Pat- 
before  such  repairs  are  made,  it  ton,  44  S.  C.  454;  De  Medina  v.  Pol- 
seems  to  be  opposed  to  the  cases  son.  Holt,  N.  P.  47;  Vanderbilt  v. 
above  cited  (ante,  note  234  b)  as  to  Perse,  3  E.  D.  Smith  (N.  Y.)  428; 
the  conclusiveness  of  the  express  Porter  v.  Bleiler,  17  Barb.  (N.  Y.) 
contract  as  to  rent.  149.     Contra,  Ragsdale  v.  Lander,  80 

249  See  ante,  §  182  e  (2)    (b).  Ky.  61.  44  Am.  Rep.  463. 

25oTomlinson   v.    Day,   2   Brod.    & 


1894  USE  AND  OCCUPATION.  |  319 

take  to  proceed  as  landlord  and  tenant  under  sucli  a  demise,  they 
are  bound  by  the  stipulations  thereof. -^■^  So  when  the  lease  was 
insufficient  for  other  reasons  connected  with  its  form  or  execution, 
the  lessee  occupying  thereunder  has  been  held  to  be  liable  at  the 
agreed  rate,^^^  but  a  different  view  has  been  taken  when  the 
lease  was  absolutely  void  because  made  on  Sunday.-^*' 

"When  a  tenant  holding  over  his  term  is  sued  for  the  use  and 
occupation  during  the  period  of  such  holding  over,  the  original 
lease  has  been  regarded  as  admissible  upon  the  question  of  the 
value  of  the  use  and  occupation,  though  not  regarded,  it  seems, 
as  conclusive  in  that  regard.^^*^ 

§  319.    Debt  for  use  and  occupation. 

Even  before  the  passage  of  the  statute  11  Geo.  2,  c.  19,  an  ac- 
tion of  debt  for  use  and  occupation,  as  distinguished  from  assump- 
sit for  use  and  occupation,  would  lie,^^^  though  this  does  not  ap- 
pear to  have  been  clearly  or  generally  understood  until  after  this 
statute.  In  this  action,  as  in  assumpsit,  it  is  not  necessary  in  the 
declaration  to  describe  the  premises  or  the  particulars  of  the  de- 
mise, it  being  sufficient  to  state  that  the  defendant  is  indebted  to 
plaintiff  for  the  use  and  occupation  of  certain  premises  of  the 

254  See  ante,  §  25  g  (2).  257  See  ante,  at  notes  93,  94. 

255  It  was  so  held  where  the  de-  In  Conger  v.  Ensler,  85  App.  Div. 
scription  of  the  premises  was  insufB-  564,  83  N.  Y.  Supp.  419,  the  lease 
cient  (Appleton  v.  O'Donnell,  173  provided  for  a  renewal,  or,  at  the 
Mass.  398,  53  N.  E.  882),  and  where  option  of  the  landlord,  payment  by 
the  lease  was  invalid  because  not  him  for  the  tenant's  improvements 
recorded  (Anderson  v.  Critcher,  11  at  a  valuation  to  be  fixed  by  arbitra- 
Gill  &  J.  [Md.]  450,  37  Am.  Dec.  72).  tion.  The  parties  having  chosen 
In  Whitford  v.  Laidler,  94  N.  Y.  145,  arbitrators,  the  tenant  refused  to 
46  Am.  Rep.  131,  it  was  held  that  a  permit  the  one  chosen  by  him  to  pro- 
corporate  lessee  which  failed  prop-  ceed,  and  it  was  held  that,  from  the 
erly  to  execute  the  lease,  having  end  of  the  term  until  such  refusal, 
taken  possession,  was  liable  in  use  the  tenant  was  liable  at  the  rate 
and  occupation,  but  it  was  not  said  fixed  by  the  lease,  and  thereafter  at 
whether  the  rent  named  in  the  lease  the  reasonable  value  of  the  occupa- 
was  the  measure  of  recovery.  tion. 

256Vinz  V.  Beatty,  61  Wis.  645,  21  25s  Gibson  v.  Kirk,  1  Q.  B.  85a; 
N.  W.  787;  Ainsworth  v.  Williams,  King  v.  Eraser,  6  East,  348;  Arm- 
Ill  Wis.  17,  86  N.  W.  551.  strong  v.   Clark,   17  Ohio,  495. 


§  319  I>EBT.  1895 

plaintiff  at  the  request  of  the  defendant,  by  him  occupied  for  a 
long  time,-^^  and  it  is  unnecessary  to  allege  the  character  in  which 
plaintiff  sues,  whether  as  assignee  of  the  reversion  or  otherwise.^^o 
Debt  for  use  and  occupation,  it  has  been  held,  will  lie  even  though 
there  is  a  demise  under  seaL^'^i 

250  See     Wilkins    v.     Wingate,     6  260  Armstrong   v.   Clark,   17   Ohio, 

Term  R.  62;  King  v.  Fraser,  6  East,  495. 

348;   Walker  v.  Mauro,  18  Mo.  564;  261  Fuller  v.   Ruby,   76  Mass.    (10 

Gray    v.    Johnson,    14    N.    H.    414;  Gray)   285. 
Comyn,  Landl.  &  Ten.  431. 


CHAPTER  XXXI. 

LIENS  IN  FAVOR  OF  THE  LANDLORD. 
820.     Apart  from  statute  or  agreement. 
321.     Statutory  liens. 

a.  Creation  and  existence  of  the  tenancy. 

b.  Tlie  nature  and  utilization  of  the  premises. 

c.  Obligations  secured. 

(1)  Rent. 

(a)  Rent  payable  In  kind. 

(b)  Rent  accrued  and  to  accrue. 

(c)  Other  indebtedness  asserted  as  rent. 

(2)  Advances  and  supplies. 

(3)  Stipulations  of  the  lease. 

d.  Things  subject  to  the  lien. 

(1)  General  considerations. 

(2)  Crops. 

(3)  Things  kept  or  used  on  the  premises. 

(4)  Things  on  other  premises. 

(5)  Things  not  belonging  to  the  tenant. 

(6)  Things  exempt  from  execution. 

(7)  Proceeds  of  sale. 

e.  Persons  entitled  to  assert  the  lien. 

(1)  Assignees. 

(2)  Persons  acting  in  behalf  of  others. 

f.  Priorities. 

(1)  General  considerations. 

(2)  Purchasers  with  notice. 

(a)  Ordinarily  take  subject  to  Hen. 

(b)  What  constitutes  notice. 

(c)  Purchasers  in  ordinary  course  of  business. 

(3)  Purchasers  without  notice. 

(a)  Ordinarily  take  free  from  lien. 

(b)  Purchasers  not  for  value. 

(4)  Mortgagees. 

(5)  Persons  having  liens  for  supplies  or  services. 

(6)  Attachment  and   execution  creditors. 

(7)  Marshaling  of  securities. 


s  320  APART  FROM  STATUTE  OR  AGREEMENT.  1897 

g.     Duration  of  the  lien. 

h.     Extinguishment  of  the  lien  by  payment. 

1,    Relinquishment  or  waiver  of  the  lien. 

(1)  Express   relinquishment. 

(2)  Acceptance  of  note  or  other  security. 

(3)  Inducing  action  by  third  person. 

(4)  Consent  to  sale  or  removal  of  property. 

(5)  Abstention  from  enforcement  of  lien. 

(6)  Blending  of  claims. 

J.     Removal  of  the  property  subject. 

k.    The  possessory  rights  of  the  landlord. 

1.     Enforcement  of  lien. 

(1)  Necessity  of   legal   proceeding. 

(2)  Form  of  proceeding. 

(3)  By  equitable  proceeding. 

(4)  In  collateral  proceeding. 

(5)  Before  maturity  of  claim. 

(6)  Affidavit  and  bond. 

(7)  Parties. 

(8)  Judgment. 

m.     Persons  interfering  with  property  subject — Pecuniary  liability. 

§  322.     Conventional  liens. 

a.  Form  of  stipulation  for  lien. 

b.  The  nature  of  the  lien. 

c.  The  indebtedness  secured. 

d.  Property  subject  to  the  lien. 

(1)  General  considerations. 

(2)  Property  of  assignee  or  subtenant. 

(3)  Description  of  property. 

(4)  After-acquired  property. 

e.  Persons  entitled  to  assert  lien. 

f.  Recording  and  priorities. 

g.  Waiver  of  the  lien. 

h.     Enforcement  of  the  lien. 

i.     Landlord's  rights  against  third  persons. 

323.  Deposits  to  secure  rent. 

324.  Agreement  to  give  security. 

§  320.    Apart  from  statute  or  agreement. 

By  the  word  *'lien,"  as  we  use  it  in  this  chapter,  is  meant  a 
risht,  as  regards  particular  property,  to  obtain  satisfaction  of  a 
claim  by  the  forced  sale  of  such  property,  which  may  be  asserted, 
subject  to  prescribed  limitations,  even  as  against  third  persons 
obtaining  interests  in  the  property  after  the  inception  of  the  lien. 
Such  a  lien  is  to  be  distinguished  from  the  common-lavr  possessory 


1898  LIENS  IN  FAVOR  OF  LANDLORD.  §  320 

lien,  which  rests  on  possession  and  does  not  give  any  right  of  sale 
to  the  lienor. 

Adopting  the  above  definition  of  a  lien,  it  is  clear  that  at  com- 
mon law  the  landlord  had,  apart  from  agreement,  and  before 
distress,  no  lien  upon  chattels  belonging  to  the  tenant  to  secure 
the  payment  of  his  rent  or  the  performance  of  other  obligations  im- 
posed by  the  instrument  of  lease.i  He  had  a  right  to  seize,  by 
way  of  distress,  the  chattels  upon  the  demised  premises,  and 
eventually  he  was  given  by  the  statute  2  W.  &  M.  Sess.  1,  c.  5,  §  2, 
the  right  to  sell  the  chattels  so  seized,  in  order  to  satisfy  his  claim 
for  rent,2  but  the  right  of  distress,  even  after  this  statute,  did  not 
give  him  a  lien  on  the  chattels.  He  had  no  interest  in  them, 
which  he  could  assert  as  against  third  persons,  or  even  as  against 
the  tenant,  after  their  removal  from  the  premises,^  until  he  had 
taken  them  into  possession  for  nonpayment  of  rent.  After  he  had 
done  so,  he  had  a  right  analogous  to  a  lien,  as  having  the  right 
to  retain  them  until  the  rent  was  paid,  or,  after  the  passage  of 
the  statute  above  referred  to,  to  sell  them  and  satisfy  his  claim 
from  the  proceeds. 

Occasionally  the  right  of  distress  itself  has  been  characterized 
as  a  lien,  this  having  reference  apparently  to  the  priority  obtain- 
able by  distress  as  regards  the  property  subject  thereto^  It  is 
perhaps  by  reason  of  such  language  that  the  view  was  at  one 

1  Sutton  V.   Rees,   9   Jur.    (N.   S.)  347;  Stamps  v.  Gilman,  43  Miss.  456, 

456;    Morgan  v.   Campbell,  89  U.   S.  5  Am.  Rep.  498;   Richardson  v.  Mc- 

(22    Wall.)    381,    22    Law.    Ed.    796;  Laurin,  69  Miss.  70,  12  So.  264;  Snell 

Leopold  V.  Godfrey,  11  Biss.  158,  50  v.   Ricketts,  28  Neb.    616,   44  N.   W. 

Fed.   145;    Hitchcock  v.   Hassett,   71  729    (semble);    Rowland  v.   Forlaw, 

Cal.  331,   12   Pac.   228;    Patterson  v.  108   N.  C.  567,  13   S.   E.  173;   Weth- 

Taylor,  15  Fla.  336;  Johnson  V.  Eman-  erill    v.   Gallagher,    217   Pa.    635,    66 

uel,    50    Ga.    590;    Hobbs    v.    Davis,  All.  849;    Loomis  v.  Lincoln,  24  Vt. 

50  Ga.  213;    Herron  v.  Gill,  112  111.  153,  58  Am.  Dec.  156.     That  the  land- 

247;   Powell  v.  Daily,  163  111.  646,  45  lord   has  a  right   to   distrain   goods 

N.  E.  414;  First  Nat.  Bank  of  Joliet  belonging  to  a  third  person  on  the 

V.  Adam,  138  III.  483,  28  N.  E.  955;  premises  gives  him  no  lien  thereon, 

Kellogg  Newspaper  Co.  v.  Peterson,  and    such    person   may   remove   hla 

162  111.  158,  44  N.  E.  411,  53  Am.  St.  property  on  the  tenant's  bankruptcy. 

Rep.  300;  Buckey  v.  Snouffer,  10  Md.  Wetherill  v.  Gallagher,  217  Pa.  635, 

149,    69    Am.    Dec.    129;     Gelston    v.  66  Atl.  849. 

Rullman,    15    Md.    260;     Koeleg    v.  2  See  post,  §   325. 

Phelps.  80  Mich.   466,  45  N.  W.   350  3  See  post,  §  328  m  (1). 

(semble) ;  Marye  v.  Dyche,  42  Miss.  *  Williams    T.    Leper,    3    Burrow, 


§  320  APART  FROM  STATUTE  OR  AGREEMENT.  1899 

time  apparently  adopted  in  one  state  that  a  landlord  has  a  lien 
for  his  rent  apart  from  statute  or  agreement,  even  prior  to  dis- 
tress.5  In  two  states  a  statutory  provision  gives  the  landlord  a 
lien  upon  the  tenant's  property,  to  date  from  the  time  of  dis- 
tress,«  a  character  of  provision  which  presumably  adds  nothing 
to  the  effectiveness  of  a  distress. 

Occasionally  the  right  of  the  landlord  to  re-enter  for  nonpay- 
ment of  rent  has  been  referred  to  as  a  lienJ  In  Pennsylvania  it 
appears  that,  not  only  is  the  landlord,  by  reason  of  his  right  of 
re-entry  for  nonpayment  of  the  rent,  regarded  as  having  a  lien 
on  the  land,  but  it  attaches  to  the  proceeds  of  the  sale  of  the 
lai-J,  whether  at  the  instance  of  the  landlord  or  of  a  third  per- 
son, in  preference  to  other  liens  subsequent  to  the  date  of  the 
lease.8 

In  New  York  it  has  been  decided  that  "rents"  paid  by  under- 
tenants, that  is,  sums  paid  by  them  on  account  of  rent,  if  they 
come  into  the  hands  of  a  receiver  of  the  tenant  in  chief,  cannot 
be  distributed  among  the  latter 's  creditors  until  the  rent  under 
the  head  lease  has  been  paid,  provided,  at  least,  the  head  land- 
lord has  the  right  of  re-entry  for  nonpayment  of  rent.»  It  was 
also  there  decided  that,  on  the  sale  of  a  leasehold  interest  under 
foreclosure,  the  sheriff  was  properly  directed  to  pay  the  rent  due 
the  landlord  out  of  the  proceeds  of  sale,  it  being  said  that  the 

1886;  Ex  parte  Grove,  1  Atk.  104;  classed  as  a  "lien"  in  Salmond,  Juris- 
Bucldey  v.  Taylor,  2  Term  R.  600.  prudence,  p.  525. 
The  right  of  distress  is  so  referred  »  Bantleon  v.  Smith,  2  Bin.  (Pa.) 
to  in  Salmond,  Jurisprudence  (at  p.  146,  4  Am.  Dec.  430;  Ter-Hoven  v. 
525)  a  modern  work  of  high  charac-  Kerns,  2  Pa.  96;  In  re  Dougherty's 
ter  'as  is  there  stated,  "the  word  Estate,  9  Watts  &  S.  (Pa.)  189,  42 
lien  has  not  succeeded  in  attaining  Am.  Dec.  326;  Pancoasfs  Appeal,  8 
any  fixed  application  as  a  technical  Watts  &  S.  (Pa.)  381;  Powell  v. 
any  nxea  appu^^  Whitaker,  88  Pa.  445;  Foulke  v.  Mil- 
term    of    English    law.     Its    use    is  ^^^^^  ^^^  ^^   2^^.  ^^^^.^  ^^^^^^^  ^^ 

capricious  and  uncertain.  p^    ^74;    Spangler's  Appeal,  30   Pa. 

6  0'Hara    v.    Jones,    46     111.    288;  377,  note.     See  3  Am.  Law  Reg.  at  p. 

Eames    v.     Mayo,    6     111.     App.     (6  ^^      ^^^   compare  Miners'   Bank  v. 

Bradw.)    334.  Heiluer,  47  Pa.  452,  opinion  of  Wood- 

6  See  Florida  Gen.  St.  1906,  §  2237;  ^^^^^  c.  J. 

Georgia  Code  1895,  §  2795.  oRif^gs    v.    Whitney,    15    Abb.    Pr. 

7  Stephenson  V.  Haines,  16  Ohio  St.  (n.  y.)  388.  See  Stillman  t.  Van 
478;  Wills  v.  Gibson,  7  Pa.  154.  The  Beuren,  100  N.  Y.  439,  3  N.  E.  671, 
landlord's      right     of     re-entry     Is  53  Am.  Rep.  206. 


IQQO  LIENS  IN  FAVOR  OF  LANDLORD.  §  320 

"practical  operation"  of  the  purchaser's  liability  to  be  turned 
out  if  the  rents  are  not  paid  "is  that  of  a  lien."io 

In  the  administration  of  the  bankrupt  law  the  federal  courts 
have  occasionally  gone  a  considerable  distance  in  asserting  the 
existence  of  a  lien  for  rent.  In  this  country  the  tenant's  bank- 
ruptcy terminates  the  right  to  distrain  on  his  goods,^^  but  the 
courts  have  been  unwilling  that  the  landlord  should  thus,  by  the 
accident  of  the  tenant's  bankruptcy,  lose  the  possibility  of  estab- 
lishing the  priority  of  his  claim  for  rent.  That  is,  the  right  of 
distress  has  been  regarded  as  a  lien  within  the  intent  and  mean- 
ing of  the  bankrupt  act,  and  the  landlord  has  been  allowed  a 
priority  over  the  general  creditors  to  the  extent  of  the  goods 
subject  to  his  right  of  distress.^^  I21  those  states  in  which  the 
statute  8  Anne,  c.  14,  §  1,  or  a  counterpart  thereof,  is  in  force,^^ 
the  preference  of  the  landlord  has  been  based,  more  satisfactor- 
ily, it  would  seem,  so  far  as  principle  is  concerned,  on  the  theory 
that  the  taking  of  the  tenant's  effects  into  the  jurisdiction  of  the 
court  is  within  the  equity  of  the  statute  ^^  or  constitutes  an  equi- 
table execution.15  In  one  state  the  landlord  has  been  regarded 
as  having  a  quasi  lien  on  the  goods  subject  to  distress,  for  the 
purpose  of  entitling  him  to  prior  payment  out  of  the  proceeds 
of  the  sale  of  such  goods  under  attachment.^  ^* 

The  right  which  the  landlord  has,  under  the  statute  8  Anne, 
c.  14,  §  1,  or  a  similar  state  statute,  to  demand  that  the  sheriff, 
upon  levying  under  an  execution  upon  goods  liable  to  distress, 
pay  to  him  the  equivalent  of  twelve  months'  rent,^^  though  some- 

10  Catlin  V.  Grissler,  57  N.  Y.  363.       i3  See  post,  at  note  16. 

See  Robinson  v.  Ryan,  25  N.  Y.  3^0.  1*  Longstreth  v.  Pennock,  87  U.  S. 

11  See  post,  §  328  f,  at  note  319.  (20  Wall.)   575,  22  Law.  Ed.  451. 

12  Austin  V.  O'Reilly,  2  Woods,  is  In  re  Trim,  2  Hughes,  355,  Fed. 
670,  Fed.  Gas.  No.  665;  In  re  Trim,  2  Gas.  No.  14,174;  In  re  Appold,  25 
Hughes,  355,  Fed.  Gas.  No.  14,174;  In  Leg.  Int.  (Pa.)  180,  Fed.  Gas.  No. 
re  Mitchell,  116  Fed.  87.  See  In  re  499;  In  re  Hoover,  113  Fed.  136;  In 
Wynne,  Ghase,  227,  Fed.  Gas.  No.  18,-  re  McConnell,  31  Leg.  Int.  (Pa.)  61, 
117.  Compare  Buckey  v.  Snouffer,  Fed.  Gas.  No.  8,712.  See  In  re  Wf-t 
10  Md.  149,  69  Am.  Dec.  129,  where  Side  Paper   Go.,  159    Fed.  241. 

It  was  decided  that  if  the  tenant  was  isa  Thomason   v.    Baltimore    &    S. 

declared   insolvent   under   the   state  Steam   Co.,   33   Md.   312.    No   refer- 

law,  the  landlord  had  no  prior  right  ence  is  made  to  the  case  of  Buckey 

as   to   the   assets   of  the   estate,  by  v.  Snouffer,  10  Md.  149,  69  Am.  Dec. 

reason   of  the  pre-existing  right  of  129.     Ante,   note   12. 

distress,  is  See  ante,  §  183. 


&  320  AP^^'^  ^^^^^  STATUTE  OR  AGREEMENT.  1901 

times  referred  to  as  a  lien,  is  not,  it  seems,   appropriately  so 
termed.     These  statutes,  as  they  have  been  construed,  give  the 
landlord  no  right  to  proceed  against   the   goods  or  to  compel 
their  application  to  the  satisfaction  of  his  claim,  but  ordinarily 
cive    him    merely    a    right    of    recovery    in    damages    against 
the  sheriff  or  other  officer  in  case  he  removes  the  goods  with- 
out  the    payment    of    one    year's    rent.     Furthermore,   the    ex- 
istence of  these  statutes  in  no  way  affects  the  power  of  the 
tenant,  or  of  the  officer  selling  under  execution,  to  transfer  an 
unincumbered  title  to  the  goods  on  the  premises.^J     The  Dela- 
ware  statute,  however,  giving  the  landlord  a  right  to  be  first 
paid  a  year's  rent  out  of  the  sale  of  goods  seized  by  virtue  of 
any  process  of  execution,  attachment,  or  sequestration    has  ap- 
parently been  regarded  as  giving  the  landlord  a  hen  for  such 
amount  of  rent,  which  takes  priority  of  a  mortgage  on  the  chat- 
tels  -iven  before  the  commencement  of  the  tenancy,^^   a  view 
which  would  seem  to  render  a  mortgage  on  chattels,  not  accom- 
panied by  possession,  a  somewhat  unreliable  form  of  security,  by 
reason  of  the  possibility  of  their  removal  to  leased  premises. 

In  Virginia  and  West  Virginia  there  are  statutes,  to  some  ex- 
tent apparently,  based  on  the  statute  of  Anne,  but  much  more 
extensive  in  their  operation.^^     They  provide  that  if,  after  the 
commencement  of  any  tenancy,  a  lien  be  obtained  or  created  by 
deed  of  trust,  mortgage,  or  otherwise,  upon  the  interest  or  prop- 
erty  in  goods  on  premises  leased  or  rented,  of  any  person  liable 
for  the  rent,  the  party  having  such  lien  may  remove  said  goods 
on  the  following  terms,  and  not  otherwise,  that  is  to  say,      on 
the  terms  of  paying  to  the  person  entitled  to  the  rent  so  much 
as  is  in  arrear,  and  securing  to  him  so  much  as  is  to  become  due, 
what  is  so  paid  or  secured  not  being  altogether  more  than  a 
year's  rent  in  any  case,"  and  then  provide  that  if  the  goods  are 
taken  under  legal  proeess,  the  officer  shall  pay  the  rent  from  the 
proceeds  of  sale  or  secure  the  payment  thereof.     These  statutes 
have  been  referred  to  as  creating  a  lien  in  favor  of  the  landlord.^o 

IT  see  Stamps  v.  Oilman,  43  Miss.  "  Yirginia _   Code     1904,    ^     m2', 

i^fi     5    Am     Rep     498;    Buckey    v.  West  Yirgmia  Code  1906.  §  3405. 

Snouffer.   10   Md.   149,   69   Am.    Dec.  -Wades   v.   Figgatt    75   Va^  57^: 

"  Anderson  t.  Henry,  45  W.  Va.  319, 

x;Pord  V.  Clewell.  9  Houst.  (Del.)  31  S.  E.  998:  In  re  McTntire  142  Fed. 

179.  31  Atl.  715.  593;     In     re     Wynne.    Chase.     227. 


1902  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

They  are  not,  however,  very  explicit  as  to  the  character'  of  the 
rights  intended  to  be  vested  in  the  landlord,  and  mijxht  perhaps, 
like  the  statute  of  Anne,  have  been  construed  as  merely  giving 
him  a  right  of  personal  recourse  against  the  person  violating 
them.  They  do  not  appear  to  give  the  landlord  protection  as 
against  purchasers  from  the  tenant  or  as  against  lienors  or  others 
who  obtain  an  interest  in  the  goods,  or  levy  thereon,  after  their 
removal  from  the  premises.^i 

§  321.    Statutory  liens. 

a.  Creation  and  existence  of  the  tenancy.  In  quite  a  number 
of  the  states  there  are  statutes  subjecting  chattels  or  crops  upon 
the  demised  premises  to  a  lien  in  favor  of  the  landlord,  usually 
for  rent,  and  also  occasionally  for  advances  made  by  the  land- 
lord to  the  tenant,  or  for  supplies  furnished  by  him. 

A  statute  giving  a  landlord  a  lien  does  not,  it  is  clear,  give  a 
lien  when  the  relation  of  landlord  and  tenant  is  nonexistent,  and 
there  are  a  number  of  decisions  or  dicta  to  that  effect.22  So  it 
has  been  decided  that  a  vendor,  not  being  the  landlord  of  the 
purchaser  put  into  possession,"^  is  not  entitled  to  a  lien  on  the 
latter 's  property ,2^  though  the  right  to  a  lien  has  been  regarded 
as  arising  upon  the  subsequent  creation  of  the  relation  of  ten- 
ancy,2^  even  when  this  is  by  force  of  a  provision  in  the  original 

Fed.    Gas.    No.    18,117.      As    to    the  Collins  v.  Whigham,  58  Ala.  438,  29 

priority    of    a    deed    of    trust    made  Am.      Rep.   762.     It  was  so  decided 

previous    to    a    tenancy    created    by  when  the  purchaser  had   previously 

holding  over,  see  City  of  Richmond  held    under    a    lease.     Des     Moines 

V.  Duesberry,  27  Grat.   (Va.)   210.  Nat.    Bank    v.    Council    Bluffs    Sav. 

21  See  Geiger's  Adm'r  v.  Har-  Bank  (C.  C.  A.)  150  Fed.  301.  In 
man's  Ex'r,  3  Grat.    (Va.)    130.  Taylor  v.    Taylor,   112  N.   C.   27,   16 

22  Smith  V.  Maberry,  61  Ark.  515,  S.  B.  924,  22  L.  R.  A.  598,  it  was  de- 
33  S.  W.  1068;  Tucker  v.  Adams,  52  cided  that  although  a  vendee  may 
Ala.  254;  Kennon  v.  Wright,  70  Ala.  for  some  purposes  be  a  tenant  at 
434;  Drakford  v.  Turk,  75  Ala.  339;  will,  he  is  not  a  lessee  within  the 
Saterfield  v.  Moore,  110  Ga.  514,  35  statute  vesting  the  title  to  the  crop 
S.  E.  638;  Eve  v.  Crowder,  59  Ga.  in  the  landlord,  this  applying  only 
799;  Watkins  v.  Duvall,  69  Miss.  364,  where  "lands  shall  be  rented  or 
13  So.  727;  Jamison  v.  Acker  leased  by  agreement,  written  or 
(Miss.)    14  So.  G91.  oral,    for   agricultural    purposes,    or 

23  As  to  this  see  ante,  §  43  a.  shall  be  cultivated  by  a  cropper." 

J4  Tucker  v.  Adams,  52  Ala.  254;        25  Hadden's  Ex'rs  v.  Powell,  17  Ala. 


§321 


STATUTORY  LIENS.  1903 


contract  of  sale.^e  It  has  been  decided  that  the  right  of  a  les- 
sor to  a  lien  is  not  affected  by  the  fact  that  the  lease  provides 
that,  after  rent  to  a  specified  amount  has  been  paid,  the  lessor 
shall  convey  the  land  to  the  lessee.27  The  owner  of  land  is  not 
entitled  under  such  a  statute  to  a  lien  for  advances  furnished  to 
a  mere  "  cropper,  "^s  or  to  a  subtenant,  with  whom  he  is  not  in 
privity.29  The  fact  that  the  landlord  is  himself  the  tenant  of 
another,  so  that  his  tenant  is  a  subtenant  as  resrards  the  latter, 
does,  not  affect*  the  right  of  such  mesne  landlord  to  the  lien.^o 

The  form  of  a  lease  by  which  the  relation  of  tenancy  is  created 
would  seem  to  be  entirely  immaterial.  Thus,  the  lease  may  be 
oral,3i  and  it  has  been  decided  that  the  fact  that  the  lease  is 
in  terms  for  a  period  greater  than  that  for  which  the  statute  al- 
lows an  oral  lease  does  not  exclude  the  lien,  the  lessee  having 
taken  possession  of  the  premises,32  although  in  another  juris- 
diction a  different  view  is  apparently  asserted.33  Even  in  this 
latter  jurisdiction  the  landlord  has  been  regarded  as  entitled  to 
a  lien  for  rent  which,  in  accordance  with  the  presumption  that 
a  tenant  holding  over  by  permission  holds  on  the  terms  of  the 
lease,  accrued  during  such  a  holding  over.^-* 

The  fact  that  another  relation  also  exists  between  the  land- 

314;    Smith  v.   Fouche,  55  Ga.  120;  The  lien  of  the  sublessor  cannot 

Taylor  v.  Taylor,  112  N.  C.  27,  16  S.  be  defeated   by  a  showing  that  the 

E.  924,  22  L..  R.  A.   598.  original   lease   to  him  was    open   to 

26  Collins  V.  Whigham,  58  Ala.  438,  attack   as   having  been   made   by   a 

29  Am.  Rep.  762;  Quetermous  v.  Hat-  guardian    for    an    inadequate    rent, 

field,  54  Ark.  16,  14  S.  W.  1096.  Perry  v.   Perry,  127  N.  -C.  23,  37  S. 

2T  Crinkley  v.  Edgerton,  113  N.  C.  E.  71. 

444,  18  S.  E.  669.  ^i  Wilson   v.    State    (Ala.)    39    So. 

28  Fields  V.  Argo,  103  Ga.  387,   30  776;    Scully  v.  Porter,  57  Kan.   322, 
S.   E.    29.     But   an   employer   might  46  Pac.  313;    Grubbs  v.  Stephenson, 
be  given  a  lien  by   the  terms  of  a  117  N.  C.  66,  23  S.  E.  97. 
particular     statute.       See     Neal     v.  32  Martin     v.    Blanchett,    77    Ala. 
Brandon.  70  Ark.  79,  66  S.  W.  200.  288;  Nelson  v.  Webb,  54  Ala.  436. 

29  Moore  V.  Faison,  97  N.  C.  322,  2  33  Hill    v.    Gilmer    (Miss.)    21    So. 
S.  E.  169.  528.     There  is  no  discussion  of  the 

so  Strickland  v.  Stiles,  107  Ga.  308,  question,  and  the  two  cases  cited  do 

33  S.  E.  85,  45  L.  R.  A.  204,  73  Am.  not  seem  to  bear  upon  the  point. 
St.  Rep.  122;    Moore  v.  Faison,  97  N.        34  Love  v.  Law,  57  Miss.  596.     And 

C.  322,  2  S.  E.  169;  Jarrell  v.  Daniel,  see  Abraham  v.  Nicrosi,  87  Ala.  173, 

114  N.  C.  212,  19  S.  E.  146,  26  L.  R.  6  So.  293. 
A.  810,  41  Am.  St.  Rep.  786. 


1904  LIENS  IN  FAVOR  OF  LANDLOED.  §321 

lord  and  the  tenant  has  been  regarded  as  immaterial.  Thus,  if 
a  mortgagee,  after  default,  having  the  legal  title,  makes  a  lease 
to  the  mortgagor,  he  has  thereafter  a  lien  under  the  statute.'*^ 
A  purchaser  at  foreclosure  sale,  making  a  lease  to  the  mortgagor, 
has  the  same  rights  in  this  regard  as  any  other  lessor,'^  and  a 
lien  has  been  recognized  in  favor  of  one  cotenant  of  land  leasing 
it  to  the  other.37 

b.  The  nature  and  utilization  of  the  premises.  The  statute 
does  not  ordinarily  require,  as  a  condition  precedent  to  the  ex- 
istence of  the  lien,  that  the  premises  shall  be  of  a  particular  char- 
acter, or  used  for  a  particular  purpose.^^  When  the  lien  is  given 
on  crops  alone,  however,  part  at  least  of  the  premises  must,  it  is 
obvious,  be  used  for  agricultural  purposes.  In  two  states  the 
statute  giving  a  lien  on  chattels  placed  on  the  premises  restricts 
it  to  the  case  of  a  lease  of  a  storehouse,  residence,  or  other  build- 
ing,39  and  such  a  statute  has  been  construed  as  not  giving  a  lien 
on  improvements  erected  by  the  lessee  on  vacant  land.'*"  A  stat- 
ute providing  that  claims  for  rent  shall  be  a  lien  on  agricultural 
products  and  all  other  property  "used"  on  the  premises  has 
been  construed  as  not  confined  to  agricultural  lands,^^  and  the 
same  view  has  been  taken  of  a  statute  similarly  expressed  as  to 
other  property  ''usually  kept"  on  the  premises.^^ 

Where  the  statute  gave  a  lien  on  property  "in  the  house 
rented,"  it  was  held  that  each  of  the  various  apartments  in  a 

35  Cooper  V.  Kimball,  123  N.  C.  transaction.  Reynolds  v.  Taylor, 
120,  31  S.  E.  346.  144  N.  C.  165,  56  S.  E.  871. 

36  Cooper  V.  Kimball,  123  N.  C.  s^  Alabama  Code  1907,  §  4747; 
120,   31  S.  E.  346.  Tpxos  Rev.    St.   1895,   art.   3251.     In 

37  Evans  v.  English,  61  Ala.  416;  Arizona  the  lien  exists  upon  crops 
Grabf elder  v.  Gazetti  (Tex.  Civ.  ^^'J"  ^^^^  gi'own  on  a  homestead. 
App.)   26  S.  W.  436.  ^^®  Hoopes  v.  Brier,  9  Ariz.  154,  80 

38  In   North    Carolina   the   statute  ^^^-  ^^'^^ 

(Revisal  1905,  §  7993)    gives  a  lien  ./'^t'"'"''  ^^  ^'^^'  ^°^  ^^^^  ^^^' 

,'!,,',  ,  .  18  So.  297,  54  Am.  St.  Rep.  114;  Meyer 

on  crops  -when  the  land  is  leased  for         ^,^  ,.    ^^  ^        ^. 

.     ,         ,  ^^  ,.  V-   O'Dell,  18  Tex.  Civ.  App.  210,  44 

agricultural  purposes.    The  question  g    ^    g^^.   ^^^^^  ^    ^^^^^^^  ^^^^  ^ 

whether  the  lien  exists  for  the  whole  ^^^^   ^^     ^^  ^^^   ^.^   ^^p    ^25,  16 

rent  when  part  only  of  the  land  is  rpg^   q^   -^^^   3^2,  97  s.  W.  1063. 

agricultural    is    apparently    depend-  41  Grant  v.  Whitwell,  9  Iowa,  152. 

ent  on  whether  the  lease  of  all  the  42  Jones  v.  Fox,  23  Fla.  454,  2  So. 

land    can   be   regarded   as    a   single  700. 


§321 


STATUTORY  LIENS. 


1905 


building,  leased  to  different  persons,  was  a  "house"  for  the  pur- 
pose of  the  statute.^3 

One  cannot,  it  has  been  decided,  enforce  the  lien  for  rent  when 
the  premises  were  leased  for  purposes  of  prostitution.^-* 

c.  Obligations  secured — (1)  Rent — (a)  Rent  payable  in 
kind.  As  before  stated,  the  lien  is  ordinarily  given  by  the  stat- 
ute to  secure  the  payment  of  rent.*^  When  the  statute  gives  a 
lien  for  rent  in  general  terms,  it  is  immaterial  whether  the  rent 
is  payable  in  cash  or  in  specific  articles,  as,  for  instance,  a  part 
of  the  crops.^^  In  one  state  the  statute  gives  a  lien  for  rent  only 
when  it  is  payable  in  a  part  of  the  crops.^*^ 

It  has  been  decided  that,  when  the  rent  is  payable  in  a  share 
of  the  crops,  and,  upon  the  tenant's  failure  to  gather  and  deliver 


48Wolcott  V.  Ashenfelter,  5  N.  M. 
442,  23  Pac.  780,  8  L.  R.  A.  691. 

4*  Burton  v.  Dupree,  19  Tex.  Civ. 
App.  275,  46  S.  W.  272. 

i6  Alabama  Code  1907,  §§  4734, 
4747  (on  crop  for  rent  "for  the  cur- 
rent year");  Arizona  Rev.  St.  1901, 
§  2695  (for  rent,  whether  wholly 
or  in  part  in  money  or  specific  arti- 
cles) ;  Arkansas,  Kirby's  Dig.  St. 
1904,  §  5032  (on  crop  of  any  year 
"for  rent  that  shall  accrue  for  such 
year") ;  District  of  ColumMa  Code 
1901,  §  1229;  Florida  Gen.  St.  1906, 
§  2237;  Georgia  Code  1895,  §  2795  et 
seq.;  Illinois,  Hurd's  Rev.  St.  1905, 
c.  80,  §  31  (for  rent,  whether  pay- 
able in  whole  or  in  part  In  money 
or  products  of  the  premises,  or  la- 
bor) ;  Indiana,  Burn's  Ann.  St.  1901, 
§  7105  (for  rent,  whether  payable  in 
part  of  the  crop,  in  kind,  or  in 
cash);  Iowa  Code  1897,  §  2992;  Kan- 
sas Gen.  St.  1905,  §  4074;  Kentucky 
St.  1903.  §  2317;  Maine  Rev.  St.  1903, 
c.  93,  §  44;  Maryland  Code  Pub.  Gen. 
Laws  1904,  art.  53,  §  22  (crop  rent) ; 
Mississippi  Code  1906,  §  2832;  Mis- 
souri Rev.  St.  1899,  §  4115  (on  crop 
of  any  year  "for  rent  that  shall  ac- 


crue for  such  year") ;  New  Mexico 
Comp.  Laws  1897,  §  2234;  North  Car- 
olina Revisal  1905,  §  1993;  South 
Carolina  Civ.  Code  1902,  §§  3057, 
3060;  Tennessee,  Shannon's  Code 
1896,  §  5299;  Texas  Rev.  St.  1895, 
arts.  3235,  3251;  Utah  Comp.  Laws 
1907,  §  1407  et  seq.;  Washington. 
Ball.  Ann.  Codes  &  St.  §  5957  (on 
crop  of  any  year  "for  the  rents  ac- 
crued or  accruing  for  such  year, 
whether  the  same  is  paid  wholly  or 
in  part  in  money  or  specific  articles 
of  property,  or  products  of  the  prem- 
ises, or  labor"). 

46  Secrest  v.  Stivers,  35  Iowa,  580; 
Kennard  v.  Harvey,  80  Ind.  37; 
Sharp  V.  Fields,  48  Tenn.  (1  Heisk.) 
571.  It  Is  occasionally  provided  by 
the  statute  that  the  lien  exists 
whether  the  rent  Is  payable  in  mon- 
ey or  specific  articles.  See  the  stat- 
utes of  Arizona,  Illinois,  Indiana, 
Washington.  It  has  been  stated  that 
the  lien  probably  exists  when  the 
rent  consists  of  labor  to  be  perform- 
ed. See  Wilkinson  v.  Ketler,  59 
Ala.  306. 

4T  Maryland  Code  Pub.  Gen.  Laws 
1904,  art.  53,  §  22. 


L   and  Ten.  120. 


1906  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

such  share  of  the  crops,  as  he  is  under  an  ohligation  to  do,  the 
landlord  does  it  himself,  the  labor  necessary  for  this  purpose  is 
a  part  of  the  rent,  and  the  landlord  has  a  lien  for  the  cost 
thereof."*^ 

(b)  Rent  accrued  and  to  accrue.  In  some  states  the  statute, 
in  providing  for  a  lien  upon  the  crop  of  any  year,  confines  it  to 
"rent  for  the  current  year"  or  for  "such  year."^^  The  effect  of 
such  language  is  to  prevent  the  assertion  of  a  lien  upon  the  crop 
for  the  rent  of  a  previous  year.^^  It  has  been  decided,  however, 
that  under  a  statute  giving  a  lien  on  the  crops  "growing  and 
grown,  for  the  rent  that  shall  accrue  for  such  year,"  the  land- 
lord has  a  lien  for  the  rent  both  of  the  year  in  which  the  crop 
is  planted,  and  of  that  in  which  it  matures.'^i 

"When  the  statute  gives  a  lien  for  rent  in  general  terms,  the 
lien  has  ordinarily  been  held  to  extend  to  the  whole  rent  to  ac- 
crue during  the  term  of  the  lease.^^  jn  one  jurisdiction,  how- 
ever, a  different  view  has  been  taken,  and  the  lien  was  there 
held  to  be  effective,  in  the  case  of  a  lease  at  a  rent  payable  peri- 
odically, only  for  the  rent  already  due,  and  for  that  of  the  cur- 
rent period.^3  As  before  stated,  the  statute  giving  a  lien  on 
crops  frequently  restricts  the  lien  to   the  rent  of  the  current 

48  Secrest  v.  Stivers,  35  Iowa,  580.  lien   for   "rent    due   and   to  become 

And  see  Fry  y.  Ford,  38     Ark.  246.  due."       Marsalis  t.  Pitman,  68  Tex. 

As   to   the    right   to   a   lien   for  the  624,  5  S.  W.  404;   Ghio  v.  Shutt,  78 

landlord's  share  of  what  should  have  Tex.  375,   14  S.  W.  860,  22  Am.   St. 

been  produced,  see  post,  at  n^tp  70.  Rep.   56. 

•*9  In  Alabama,  Arkansas,  Missouri,  In  Thorpe  v.  Fowler,  57  Iowa,  541, 

Washington.  11      N.   W.   3,   it  was  held  that  an 

BO  Ballard   v.    Johnson,    114    N.    C.  oral   lease   for   one   year,    "with  the 

141,  19  S.  E.  98;   Prettyman  v.  Un-  privilege  of"  four  years  more,  could 

land,  77  111.  206;  Frink  v.  Pratt,  130  not  he  regarded  as  binding  the  les- 

111.  327,  22  N.  E.  819.  see  for  more  than  one  year,  and  con- 

51  Miles  v.  James,  36  111.  399.  sequently  did  not  entitle  the  lessor 

52  Andrews  Mfg.  Co.  v.  Porter,  112  to  a  lien  for  rent  for  a  longer  time. 
Ala.  381,  20  So.  475;  Scott  v.  Renfro,  ss  Joyce  v.  Wilkenning,  8  D.  C.  (1 
106  Ala.  611,  14  So.  556;  Sevier  v.  MacArthur)  567;  Harris  v.  Dam- 
Shaw,  25  Ark.  417;  Union  Water  mann,  14  D.  C.  (3  Mackey)  90.  A 
Power  Co.  v.  Chabot,  93  Me.  339,  45  statute  giving  a  lien  for  "rents  due 
Atl.  30;  Garner  v.  Cutting,  32  Iowa,  the  landlord"  was  held  to  give  no 
547;  Gilbert  v.  Greenbaum,  56  Iowa,  Hen  for  rent  not  due.  Glasgow  v. 
211,  9  N.  W.  182;  Martin  v.  Stearns,  Ridgeley,  11  Mo.  34,  47  Am.  Dec. 
52  Iowa.  345,  3  N.  W.  92,  35  Am.  Rep.  139. 

278.     So  where  the  statute   gave   a 


»  221  STATUTORY  LIENS.  1907 

year"  and  under  snch  a  statute  there  is  no  lieu  ou  the  crop  of 
one  year  for  rent  to  accrue  in  subsequent  years,^^  though  there 
is  for  the  rent  of  the  current  year  still  to  accruers 

In  Kentucky  the  statute  "  provides  that  the  landlord  s  hen 
-shall  not  be  for  more  than  one  year's  rent,  due  or  to  become 
due    nor  for  any  rent  which  has  been  due  for  more  than  one 
hundred  and  twenty  days;"  and  in  Texas  ^^  the  statute  giving 
a  lien  tO'  the  landlord  of  a  house,  residence,  or  other  building, 
provides  that  "the  lien  for  rents  to  become  due  shall  not  continue 
or  be  enforced  for  a  longer  period  than  the  current  contract  year, 
it  being  intended  by  the  term  'current  contract  year'  to  embrace 
a  period  of  twelve  months,  reckoning  from  the  beginning  of  the 
lease  or  rental  contract,  whether  the  same  be  in  the  first  or  any 
other  year  of  such  lease  or  rental  contract."     By  this  latter  lan- 
guage is  meant  apparently  that  the  term  of  the  lease  is  to  be 
divided  into  yearly  periods,  and  the  lien  on  chattels  on  the  prem- 
ises at  any  time  during  one  of  such  periods  endures  until  the 
end  of  that  period.^^     In  Iowa  the  statute  provides  that,  m  case 
a  stock  of  merchandise  subject  to  the  lien  is  sold  .by  order  of 
court  or  at  judicial  sale,  the  goods  shall  be  liable  only  for  rent 
accrued  and  for  that  to  accrue  within  six  months  after  the  sale. 

In  the  case  of  a  periodic  tenancy ,«2  the  lien  can  be  at  most,  it 
seems  for  the  rent  of  the  period  running  at  the  time  at  which 
the  lien  is  asserted,«3.c4  or  perhaps  for  such  time  as  the  tenancy 
must  necessarily  endure  before  it  can  be  terminated  by  either 
party  This  latter  view  would  accord  with  a  decision  rendered 
in  reference  to  a  tenancy  at  will,  that  the  lien  secures  the  rent 
which  will  accrue  during  the  time  necessary  to  terminate  such 
tenancy  by  notice.^s 

If,  for  any  reason,  such  as  the  eviction  of  the  tenant,  particular 

54  see  ante,  at  note  49.  -  Iowa  Code  1897.  §  2992. 

55  See  Ballard  v.  Johnson,  114  N.        62  See  ante,  §   14. 

C    141    19  S.  E.  98;  Fleming  v.  Dav-        03,  C4  Hempstead    R.    E.,    B.    &    B. 

enport,  116  N.  C.  153,  21  S.  E.  188.  ^^g.^^  ^.  Cochran.  60  Tex.  620;  Gouts 

66  Watt  V.  Scofield,  7G  111.  261.  ^    Spivey,  66  Tex.  267.  17  S.  W.  540; 

57  St.  1903,  §  2317.     See  English  v.  prackenridpe  v.  Millan.  81  Tex.  17, 
Duncan.  77  Ky.   (14  Bush)  377.  ^g  g   ^   555 

58  Rev.  St.  1895,  art.  3251.  es  German  State  Bank  t.   Herron, 

59  See  ante,  note  39.  32  N.  W.  430. 

60  Allen  V.  Brunner,  33  Tex.  Civ.  ^   ^°^^' 
App.  128.  75  S.  W.  821. 


190S  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

installments  of  the  rent  do  not  become  due,  there  is,  it  seems 
clear,  no  right  to  assert  a  lien  therefor.*'''''^''' 

(e)  Other  indebtedness  asserted  as  rent.  It  is  obvious  that 
a  statute  giving  a  lien  for  rent  does  not  give  a  lien  for  other  in- 
debtedness on  the  part  of  the  tenant  to  the  landlord,*^^  and  this 
is  so  although  such  other  indebtedness  results  from  a  claim  for 
damages  on  account  of  a  breach  of  a  covenant  in  the  instrument 
of  lease.^^  And  it  has  been  decided  that  a  statute  giving  a 
lien  for  rent  does  not,  in  the  case  of  a  lease  for  a  share  of  the 
crops,  give  a  lien  for  what  the  landlord's  share  would  have 
amounted  to  had  the  tenant  properly  cultivated  the  land,  but  the 
lien  is  only  for  his  named  share  of  what  was  actually  produced.'^*^ 

Third  persons  interested  in  the  property  on  which  the  lien  is  as- 
serted may  show  that  the  amount  for  which  the  lien  is  claimed  con- 
sists in  part  of  ether  indebtednessJ^  There  are  decisions  to  the 
effect  that  if  the  sum  named  as  rent  in  the  lease  is  in  fact  payable 
partly  on  account  of  rent,  and  partly  on  account  of  other  mat- 
ters, and  it  does  not  appear  to  what  extent  it  is  for  rent,  the 
landlord  has  no  right  to  a  lien  for  any  part  thereof  J  2  But  in 
another  jurisdiction  a  different  viw  has  apparently  been  adopted, 
to  the  effect  that,  while  it  may  be  shown  by  extrinsic  evidence 
that  a  part  of  such  sum  is  not  payable  on  account  of  rent,  a  lien 
will  still  exist  for  the  balanceJ^ 

In  two  states  the  undertaking  of  the  tenant  to  pay  taxes  has 
been  regarded  as  in  effect  to  pay  rent,  so  as  to  entitle  the  land- 
lord to  a  lien  for  the  amount  of  the  taxesJ^ 

The  lien  of  the  landlord  has  been  regarded  as  securing  him 

66,  67  The  Richmond  v.  Cake,  I  App.  Nat.  Bank  of  Sioux  City  t.   Flynn, 

D.   C.   447;    Camp  v.  West,   113   Ga.  117    Iowa,    493,   91   N.   W.   784.     See 

304,  38  S.  E.   822.  Seattle  v.  Hughes,  82  Ark.  199,  101 

GSVarner    v.    Rice,    39    Ark.    344;  S.  W.  170. 

Brown  v.  Turner,  60  Mo.  21.  t2  Crill    v.    Jeffrey,    95    Iowa,    634, 

69  Bush  V.  Willis,  130  Ala.  395,  30  64   N.  W.    625;    First  Nat.  Bank  of 

So.   443;    Overby  v.   Rogers,   12   Ky.  Sioux  City  v.  Flynn,  117  Iowa,  493, 

Law  Rep.  289;   Galbraith  v.  Rogers,  91  N.  W.  784;  Riley  v.  Renick  Mill. 

14    Ky.    Law    Rep.    238;     Merrit    v.  Co.,  44  Mo.  App.   519. 

Fisher,  19  Iowa,  354.  V3  Dickenson    v.    Harris,    48    Ark. 

TO  Wilkinson    v.    Ketler,    59    Ala.  355,  3  S.  W.  58;   Varner  v.  Rice,  39 

806;      Patterson     v.     Hawkins,     71  Ark.  344. 

Tenn.  (3  Lea)  483.  74  Roberts   v.   Sims,   64  Miss.   597, 

71  Lehman  v.  Howze,  73  Ala.  302;  2  So.  72;   G-edge  v.   Shoenberger,  83 

Both  V.  Williams,  45  Ark.  447;  First  Ky.  91.     See  ante,  §§  143  b,  169  h. 


§  321  STATUTORY  LIENS.  1909 

for  the  costs  involved  in  its  enforcement/''^  and  a  stipulation  that 
the  tenant  should  be  taxed  with  attorney's  fees,  in  case  of  the 
employment  of  an  attorney  on  account  of  the  violation  of  any 
of  the  conditions  of  the  lease,  has  been  held  to  entitle  him  to  such 
fees  in  a  proceeding  to  enforce  the  lienJ^ 

(2)  Advances  and  supplies.  In  a  number  of  the  southern 
states  the  statute  gives  a  lien  for  "advances"  made  by  the  land- 
lord to  the  tenant  to  enable  the  latter  to  make  the  crops,  these 
advances  taking  the  form  of  either  money  or  supplies,  the  stat- 
ute sometimes  enumerating  particular  classes  of  supplies  for 
which  the  lien  may  be  assertedJ'^ 

Tis  Conwell  v.  Kuykendall,  29  Kan.  St.  1903,  §  2323  (for  money  or  prop- 

707;   Slaughter  v.  Winfrey,  85  N.  C.  erty  furnished  to  enable  the  tenant 

159.  to   raise   the   crops  or  to   subsist) ; 

T6  Richards  v.  Bestor,  90  Ala.  352,  Maryland  Code  Pub.  Gen.  Laws  1904, 

8  So.  30.  art.  53,  §  23  ("advances  made  by  land- 

■n  Alabama  Code  1907,  §  4734  (ad-  lord  on  faith  of  crops  to  be  grown." 
vances  made  in  money,  or  other  Statute  applicable  to  certain  coun- 
thing  of  value,  either  by  the  land-  ties  only) ;  Mississippi  Code,  1906,  §§ 
lord  directly  or  by  another  at  his  2832, 2833  (for  "money  advanced  to  the 
instance  or  request  for  which  he  be-  tenant,  and  the  fair  market  value  of 
came  legally  bound  or  liable,  at  or  all  advances  made  by  him  to  his 
before  the  time  such  advances  were  tenant  for  supplies  for  the  tenant 
made,  for  the  sustenance  or  well  be-  and  others  for  whom  he  may  con- 
ing of  the  tenant  or  his  family,  or  tract,  and  for  his  business  carried 
for  preparing  the  ground  for  culti-  on  upon  the  leased  premises,"  and 
ration,  or  for  cultivating,  gathering,  "for  the  reasonable  value  of  all  live 
saving,  handling  or  preparing  the  stock,  farming  tools,  implements, 
crop  for  market) ;  Arkansas.  Kirby's  and  vehicles  furnished  by  him  to  his 
Dig.  St.  1904,  §  5033  (advances  "eith-  tenant") ;  North  Carolina  Revisal 
er  of  money,  provisions,  clothing,  1905,  §  1993  (for  "all  advancements 
stock,  or  other  necessary  articles,"  made  and  expenses  incurred  in  mak- 
to  enable  tenant  to  make  crop);  ing  and  saving  said  crops");  Ten- 
Florida  Gen.  St.  1906,  §  2239  (same  nessee.  Shannon's  Code  1896,  §  5303 
as  Alabama,  except  that  instead  ot  (for  supplies,  implements,  and  work 
"for  which  he  became  legally  bound"  stock  furnished  and  used  in  the  cul- 
are  substituted  tue  words  "or  for  tivation  of  the  crop,  provided  said 
which  they  have  assumed  a  legal  lien  is  expressly  contracted  for), 
responsibility,  at  or  before  the  time  Section  5304  gives  a  lien  on  the 
at  which  such  advances  were  crop  "for  necessary  supplies  of  food 
made") ;  Georgia  Code  1895,  §  2800  and  clothing  furnished  by  the  land- 
(for  supplies,  money,  horses,  mules,  lord  or  his  agent,  to  the  tenant,  for 
asses,  oxen,  farming  utensils,  of  ne-  himself  or  those  dependent  on  him, 
cessity  to   make  crops) ;    Kentucky  to  enable  the  tenant  to  make  the 


1910  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

A  statute  giving  the  landlord  a  lien  for  advances  to  enable  the 
tenant  to  make  the  crop  has  been  held  to  give  him  a  lien  for 
money  advanced  to  enable  him  to  open  ditches  and  repair  the 
fences,'^®  and  a  statute  giving  a  lien  for  "all  advancements  made 
and  expenses  incurred  in  making  and  saving  a  crop"  was  re- 
garded as  giving  it  for  everything  of  value  supplied  by  the  land- 
lord to  the  tenant  in  good  faith,  directly  or  indirectly,  for  the 
purpose  of  making  and  saving  the  crop,  such  as  subsistence  for 
the  tenant  and  his  emj^loyees,  and  work  animals,  farming  im- 
plements, and  the  like,  and  board  furnished  the  tenant  and  his 
wife  was  held  to  be  secured  by  the  lienJ^  Under  the  same  stat- 
ute the  landlord  was  regarded  as  entitled  to  a  lien  for  a  mule 
and  wagon  furnished  by  him  to  the  tenant,  and  it  was  said  that 
he  would  be  so  entitled  in  case  he  furnished  miscellaneous  goods 
to  the  tenant  to  be  utilized  by  the  latter  in  paying  his  laborers.^*' 

A  statute  giving  a  lien  for  "supplies"  advanced  or  furnished 
by  the  landlord  to  the  tenant  to  enable  him  to  make  or  save  the 
crop  has  been  held  to  entitle  him  to  a  lien  for  mules  sold  or  leased 
by  him  to  the  tenant  for  this  purpose,^^  ant  also  for  pasturage 
furnished  for  the  tenant's  stock  used  in  cultivating  the  farm  and 
for  his  cows  which  furnished  milk  for  his  family .^^  Board  fur- 
crop,  provided  an  account  of  sucb.  other  property) ;  Virginia  Code 
necessary  supplies  Is  kept  as  the  1904,  §  2496  (for  advances  "in  mon- 
articles  are  furnished.  "This  section  ey,  supplies,  or  other  thing"), 
requires  no  special  contract."  Sec-  ts  Airey  v.  Weinstein,  54  Ark.  443, 
tion  5303   gives  a  lien,  independent  16  S.  W.  123. 

of  special  contract,  in  favor  of  "land  79  Brown  v.  Brown,  109  N.  C.  124, 
owners  and  persons  controlling  land,    13  S.  E.  797. 

by  lease  or  otherwise,"  for  supplies,  so  Ledbetter  v.  Quick,  90  N.  C 
Implements    and    "work   stock"    fur-   276. 

nished  "share  croppers";  Texas  Rev.  Advances  of  money  have  been  held 
St.  1895,  art.  3235  (for  the  value  of  to  be,  prima  facie,  payable  imme- 
all  animals,  tools,  provisions  and  diately,  and  not  at  the  end  of  the 
supplies  furnished  by  the  landlord  term,  and  as  consequently  entitling 
to  the  tenant  to  enable  the  tenant  the  landlord  to  distrain  before  that 
to  make  a  crop  on  such  premises,  time.  Thompson  v.  Tilton,  22  Ky. 
and  to  gather,  secure,  house  and  put  Law  Rep.  1004,  59  S.  W.  485. 
the  same  in  condition  for  market,  si  Strauss  v.  Baley,  58  Miss.  131; 
the  money,  animals,  tools,  provi-  Trimble  v.  Durham,  70  Miss.  295,  12 
sions  and  supplies  so  furnished  be-   So.   207. 

Ing  necessary  for  that  purpose,  §2  Thomas  v.  Tucker,  Zeve  &  Co., 
whether  the  same  is  to  be  paid  in  40  Tex.  Civ.  App.  337,  89  S.  W.  802. 
money,     agricultural     products,     or 


§  321  STATUTORY  LIENS.  191 1 

nished  by  the  landlord  to  the  tenant  is  apparently  to  be  regarded 
as  "supplies, "^3  as  is  money  advanced  by  him,^^  or  paid  by  him 
for  gathering,  hauling,  and  packing  the  crop.^^ 

Under  a  statute  giving  a  lien  for  advances  of  money  or  other 
things  of  value  "for  cultivating,  gathering,  or  preparing  the 
crop,"  the  landlord  was  regarded  as  entitled  to  a  lien  for  black- 
smith's tools  furnished  by  him  to  the  tenant.^^ 

When  the  statute  in  terms  gives  a  lien  only  for  advances  or 
supplies  made  or  furnished  to  enable  the  tenant  to  make  the 
crop,  it  is  evident  that  the  lien  does  not  cover  advances  or  sup- 
plies not  made  or  furnished  for  this  purpose.^"^  But  whether 
they  are  necessary  or  appropriate  for  this  purpose  when  fur- 
nished in  good  faith  by  the  landlord  has  been  said  to  be  a  ques- 
tion for  the  tenant  to  decide.^^  The  parties  cannot,  by  collusion, 
create  a  debt,  for  which  a  lien  will  be  enforced,  when  no  ad- 
vances are  made,  or  these  are  not  made  for  crop  purposes.^® 

When  the  statute  gives  a  lien  for  advances  or  supplies  made  or 
furnished  by  the  landlord,  he  has  no  lien  for  the  value  of  ad- 
vances or  supplies  made  or  furnished  by  a  third  person  to  the 
tenant,  even  though,  it  has  been  decided,  the  landlord  becomes 
surety  or  guarantor  to  such  person  and  is  compelled,  upon  the 
tenant's  default,  to  repay  such  third  person.^^     There  must  be  a 

8»  See   Jones    v.   Eubanks,   86   Ga.  ished  the  articles  "on  the  faith   of 

616,  12  S.  E.  1065,  where,  however,  his    Hen"    was  held   to  be   sufficient 

the  question  was  whether  board  con-  to  sustain  a  finding  that  these  sup- 

Btituted  "supplies"  within  a  statute  plies  were   necessary   to   enable  the 

authorizing     a      conventional      lien  tenant  to  make  and  gather  the  crop, 

therefor.  Earl  v.   Malone,  80  Ark.  218,  S6   S. 

84  Strickland  v.  Stiles,  107  Ga.  308,  W.  1062. 

33  S.  E.  85,  45  L.  R.  R.  201,  73  Am.  87  Powell  v.   State,   84  Ala.    444,   4 

St.   Rep.    122.      Here  also   the   ques-  So.  719;  Tucker,  Zere  &  Co.  v.  Thom- 

tion   was  of  the  creation  of  a  con-  as,  35  Tex.  Civ.  App.  499,  80   S.  W. 

ventlonal  lien  by  authority  of  stat-  649. 

ute.                                   '  88  Ledhetter  v.  Quick,  90  N.  C.  276. 

85  Strauss  v.  Baley,  58  Miss.  131.  so  Ledbetter  v.  Quick,  90  N.  C.  276. 
ssHolladay   v.   Rutledge,   145   Ala.  oo  Kaufman  v.  Underwood,  83  Ark. 

656,  39  So.  613.  118,  102  S.  W.  718,  119  Am.  St.  Rep. 

A  landlord  having  advanced  a  ten-  121;    Kelley   v.    King,    18    Tex.    Civ. 

ant,  who  raised  cotton,  a  sewing  ma-  App.  360,  44  S.  W.  915;  Ranger  Mer- 

chine,  a  sum  for  ginning  and  wrap-  cantile    Co.    v.    Terrett    (Tex.    Civ. 

ping,  and  a  sum  for  pasturing,  tes-  App.)    20   Tex.   Ct.   Rep.   471,   106   S. 

timony  of  the  landlord  that  he  furn-  W.  1145;  Ellis  v.  Jones,  70  Miss.  60, 


1912  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

direct  indebtedness  created  on  the  part  of  the  tenant  towards  the 
landlord  by  the  making  of  the  advances  or  the  furnishing  of  the 
supplies.^i  But  it  is  not  necessary  that  the  supplies  actually 
pass  through  the  landlord's  hands,  and  if  a  third  person  delivers 
them  to  the  tenant  entirely  on  the  landlord's  responsibility,  they 
are  in  effect  purchased  by  the  landlord,  and  furnished  by  him  to 
the  tenant,  and  the  landlord  has  a  lien  for  their  value.^^  The 
question  whether  the  supplies  were  thus  purchased  by  the  land- 
lord and  furnished  to  the  tenant,  or  purchased  by  the  tenant,  has 
been  regarded  as  one  for  the  jury ,^3  and  that  the  landlord  and 
tenant  signed  joint  notes  for  their  value,^^  or  even  that  the 
landlord  signed  the  tenant's  note  as  surety ,^^  was  considered  not 
to  be  conclusive  that  the  supplies  were  not  furnished  by  the 
landlord. 

In  Alabama  the  statute  ^^  gives  the  landlord  a  lien  for  advances 
made  "either  by  him  directly,  or  by  another  at  his  instance  or 
request  for  which  he  became  legally  bound  or  liable  at  or  before 
the  time  such  advances  were  made,"  And  the  Florida  statute 
contains  a  substantially  similar  provision.^'^  The  former  stat- 
ute, it  has  been  decided,  does  not  create  any  lien  when  the  land- 
lord is  not  himself  personally  liable,^^  and  the  landlord  cannot 
claim  a  lien  if  he,  gratuitously  and  without  the  request  or  knowl- 
edge of  the  tenant,  assumes  liability  for  advances  made  by  a 
third  person  to  the  tenant,  unless  the  tenant  thereafter  ratifies 
his  action  in  this  regard,  the  statute  not  being  intended  thus  to 
enable  the  landlord  to  acquire  a  lien  on  the  tenant's  crop  by  his 
own  arbitrary  action.^^ 

11  So.  566;    Scott  v.  Pound,  61  Ga.  King,  18  Tex.  Civ.  App.   360,   44   S. 

579;   Brimberry  v.  Mansfield,  86  Ga.  W.   915. 

792,    13    S.    E.    132.     But    Powell    v.  ^^  Scott   v.   Pound,   61    Ga.   579. 

Perry,  127  N.  C.  22,  37  S.  E.  71,  and  °*  Scott  v.   Pound,   61   Ga.   579. 

Fournier  v.  Brown,  14  Ky.  Law  Rep.  ""  Rodgers  v.  Black.  99  Ga.  139,  25 

904   seem  contra  ^-  ^-  ^^-     Compare  Kaufman  v.  Un- 

"  «;  Ellis   V.   Jones,   70   Miss.   60,  11  ^^'"^ood,  83  Ark.  118.  102  S.  W.  718, 

„      ^.-                                              ■  119  Am.  St.  Rep.  121. 

bo.     ODD. 

„  .    ^  „       ^  ,^     o^   /^  96  Alabama  Code  1907,  §  4734. 

9=Bnmberry  y.  Mansfield.  86  Ga.       ^^  ^^^  ^^^^   ^.^^^  ^^ 

792,  13  S.  E.  132;  Scott  v.  Pound,  61  ,,  g^,,   ^    ^^^^^^^  ^5   ^^^    44.    ^^^^ 

Ga.  579;    Dowling  r.  Wall,  114  Ala.  ^^^  ^   Norman,  111  Ala.  433,  20  So. 

58,  21  So.  948;   Powell  v.  Perry,  12?  453 

N.  C.  22,  37  S.  E.  71;  Ellis  v.  Jones,  nn  cianton   v.    Eaton,   92   Ala.    612, 

70   Miss.   60,   11   So.   566;    Kelley  v.  8   So.   823. 


§  321  STATUTORY  LIENS.  1913 

A  statute  giving  to  the  landlord  a  lien  for  supplies  furnished 
by  him  does  not  entitle  him  to  one  for  supplies  sold  by  him  to 
the  tenant,  not  as  landlord,  but  as  agent  for  another,  even  though 
he  assumed  a  personal  liability  to  his  principal  for  the  payment 
of  the  price.ioo-102 

When  the  landlord  is  given  a  lien  for  live  stock  furnished  for 
making  the  crop,  it  is  immaterial,  it  has  been  decided,  whether 
he  sells  or  hires  it  to  the  tenant,  he  acting  in  his  own  behalf.i*^^ 

It  has  been  said  that,  in  order  to  make  an  advance,  the  land- 
lord must  furnish,  or  cause  to  be  furnished,  something  not  be- 
fore the  tenant's,  and  that  a  mere  forbearance  to  demand  some- 
thing due  is  not  an  advance ;  and  it  was  aeeoxdingly  decided  that 
the  fact  that  the  landlord  permitted  the  tenant  to  retain  corn 
which  he  was  under  contract  to  deliver  to  the  landlord  at  the 
time  of  the  inception  of  the  tenancy  did  not  entitle  the  landlord 
to  a  lien.^04  It  has  also  been  decided  that  rent  for  one  year,  not 
paid  during  such  year,  cannot  be  treated  by  the  parties  as  an 
advance  for  the  next  year.^o'^  But  a  contrary  decision  has  been 
made,  to  the  effect  that  if  the  landlord,  instead  of  taking  the 
share  of  the  crop  to  which  he  was  entitled  as  rent  for  the  previous 
year,  allowed  the  tenant  to  retain  it  as  an  advance,  to  aid  him 
in  making  his  crop,  the  landlord  was  entitled  to  a  lien  therefor 
as  for  an  advance.^^^ 

A  statute  giving  a  lien  upon  the  crops  of  the  year  in  which  the 
advances  are  made  or  supplies  are  furnished  obviously  does  not 
give  a  lien  for  such  advances  or  supplies  upon  the  crop  of  a  sub- 
sequent year,^"'''  and  the  same  construction  has  been  placed  on  a 
statute  giving  a  lien  in  general  terms  on  the  crop,  for  advances 
to  make  the  crop.i^^  i^  Alabama  the  statute  ^^^  provides  that 
whenever  a  tenant  fails  to   discharge  his  indebtedness  for  ad- 

io(Mo2  Swann    v.    Morris,    83    Ga.  case    that    the    parties    "cannot    by 

143,    9    S.    E.    767.  agreement    bring   other    debts    than 

103  Boyce  v.  Day,  3  Ga.  App.  275,  those  which  the  law  itself  embraces 
59  S.  E.  930.  v/ithin  its  scope."     In  most  jiirisdic- 

104  Lumbley  v.  Gilruth,  65  Miss,  tions  such  an  agreement  would,  it 
23,  3  So.  77,  7  Am.  St.  Rep.  631.  seems,     ordinarily    be    effective     to 

105  Evans  v.  English,  61  Ala.  416.   create     a     conventional     lien.     See 
IOC  Thigpen  v.  Maget,  107  N.  C.  39,    post,   §   322. 

12  S.  E.  272.  108  Walker    v.    Patterson's    Estat'^, 

loT  Parks  v.  Simpson,  124  Ga.  523,  33  Tex.  Civ.  App.  650,  77  S.  W.  437. 
52  S.  E,  616.     It  was  decided  in  this       io»  Code  1907,  §  4736. 


1914  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

varices,  and  continues  his  tenancy  under  the  same  landlord,  the 
balance  due  shall  be  held  an  advance  towards  making  the  crop 
of  the  succeeding  j^ear,  for  which  a  lien  shall  attach  to  the  crop. 
The  purpose  of  this  statute,  it  has  been  said,  is  to  afford  such 
security  to  the  landlord  as  to  remove  the  temptation,  frequently 
presented,  of  denuding  the  tenant  of  all  that  he  has,  so  as  to 
cripple,  if  not  destroy,  his  ability  to  continue  the  tenancy  an- 
other year.^o  It  has  been  held  to  be  immaterial,  for  the  pur- 
poses of  this  statutory  provision,  that  the  tenancy  for  the  suc- 
ceeding year  is  with  reference  to  entirely  different  land,  the  con- 
tinuance of  the  relation  of  tenancy  being  the  essential  considera- 
tion.m  Under  this  provision,  if  the  advances  are  not  paid  in 
the  next  succeeding  year,  the  balance  remaining  due  at  the  end 
of  that  year  is  to  be  considered  as  an  advance  for  the  next  year, 
and  so  on,  as  long  as  the  tenancy  lasts.^^^ 

The  advances  must  be  made  or  the  supplies  furnished  while 
the  relation  of  landlord  and  tenant  exists. ^^^  That  the  advances 
may  be  within  the  statute  giving  a  lien  when  made  for  crop  pur- 
poses, it  is  not  necessary,  it  has  been  decided,  that  they 
be  made  after  the  planting  of  the  crop,  the  tenant  having  the 
same  need  of  subsistence  for  himself  and  his  family  while  wait- 
ing the  time  for  crop  planting  as  after  it  arrives.^^^ 

(3)  Stipulations  of  the  lease.  In  three  jurisdictions  the  stat- 
ute gives  a  lien  to  secure  "the  faithful  performance  of  the  terms 
of  the  lease, "11^  and  in  one  to  secure  "the  faithful  performance 
of  the  lease.  "^1*^  The  meaning  of  these  provisions  seems  to  be 
that  the  landlord  has  a  lien  for  such  damages  as  he  may  be  en- 
titled to  recover  for  breach  by  the  tenant  of  a  covenant  of  the 
lease. 

A  statute  giving  a  lien  for  rent  and  advances  obviously  gives 

"0  Thompson   v.    Powell,    77    Ala.  S.  W.  526;  Moore  v.  Falson,  97  N.  C 

391.  322.  2  S.  E.  169. 

Ill  Thompson    v.    Powell,    77    Ala.  i"  Ragsdale    v.    Kinney,    119   Ala. 

391;  Reese  v.  Rugely,  82  Ala.  267,  2  ^^^'  ^4  So.  443. 

gg    44^  ^^^  Arizona  Rev.  St.  1901,  §  2695; 

„,.„.     ^„„    .,      „„^    „„    lUinnis.  Kurd's  Rev.  St.  1905,  c.  80. 
i-Bush  V.  Wilhs,  130  Ala.  395.  30    g   3,^    ^.^^^^   ^^^^^.^^  ^^^^^^^   ^^^^^ 

So.  443.  §  lf)()3 

113  Eve   V.    Crowder,    59    Ga.    799;        nr.  washint^ton.   Ball.   Ann.   Codes 

Llles   V.  Price    (Tex.  Civ.  App.)    51    &   St.  §   5957. 


§  321  STATUTORY  LIENS.  1915 

no  lien  for  a  breach  of  stipulations  of  the  lease  in  regard  to  other 
matters.^  ^"^ 

d.  Things  subject  to  the  lien — (1)  General  considerations. 
In  almost  every  state  in  which  the  statute  gives  a  lien  in  favor 
of  the  landlord,  the  crops  raised  upon  the  premises  are  made 
subject  thereto.^ ^8  In  some  the  lien  is  upon  property  placed, 
kept  or  used  on  the  premises/^^  and  in  one  upon  the  buildings 
thereon.120  And  in  three  jurisdictions  the  landlord  has  a  lien 
on  articles  supplied  by  him  to  the  tenant  for  the  value  thereof.^^i 

(2)  Crops.  A  statute  giving  a  lien  on  the  crop  grown  in  any 
particular  year,  for  the  rent  of  that  year,  evidently  gives  no  lien 

117  Few  T.  Mitchell,  80  Ark.  243,  96  the  tenant's  personal  chattels,  on  the 

S.  W.  983.  premises,    as    are    subject   to    execu- 

iis  Alabama  Code  1907,  §  4734;  tion  for  debt) ;  FZorttf a  Gen.  St.  1906, 
Arizona  Rev.  St.  1901,  §  2695;  Ar-  §  2237  (on  property  of  the  lessee  or 
kansas,  Kirby's  Dig.  St.  1904,  §  5032;  his  sublessee  or  assigns  usually  kept 
i^Zortda  Gen.  St.  1906,  §  2237;  Georgia  on  the  premises);  Iowa  Code  1897, 
Code  1895,  §§  2795,  2800;  Illi-  §  2992  (on  any  personal  property  of 
nois,  Kurd's  Rey.  St.  1905,  c.  80,  §  the  tenant  used  or  kept  on  the  prem- 
31;  Indiana,  Burns'  Ann.  St.  1901,  ises  during  the  term  and  not  ex- 
§  7105;  loioa  Code  1897,  §  2992;  Kan-  empt  from  execution);  New  Mexico 
sas  Gen.  St.  1905.  §  4074;  Maryland  Comp.  Laws  1897,  §  2234  (on  prop- 
Code  Pub.  Gen.  Laws  1804,  art.  53,  erty  of  tenant  "which  remains  In 
§  22;  Mississippi  Code  1906,  §  2832  the  house  rented");  Texas  Rev.  St. 
("agricultural  products");  Missouri  1895,  art.  3251  (in  case  of  lease  of 
Rev.  St.  1899,  §  4115;  North  Caro-  residence,  storehouse  or  other  build- 
lina  Revisal  1905,  §  1993;  South  ing,  on  all  the  property  of  the  ten- 
Carolina  Civ.  Code,  §§  3057,  3060;  ant  therein,  not  (semble)  exempt 
Tennessee,  Shannon's  Code  1896,  §§  from  execution). 
5299,  5300-5305;  Texas  Rev.  St.  1895,  120  Maine  Rev.  St.  1903,  c.  93,  §§ 
art.    3236  ("agricultural  products");  44,    45. 

Virginia  Code  1904,  §  2496;  Wash-  121  in  Alabama  and  Florida,  on  all 
ington,  Ball.  Ann.  Codes  &  St.  §  5957.  articles  advanced,  and  on  all  prop- 
no  AZabama  Code  1907,  §  4747  erty  purchased  with  money  ad- 
( landlord  of  any  storehouse,  dwel-  vanced,  or  obtained  by  barter  in  ex- 
ling  house,  or  other  building,  shall  change  for  articles  advanced,  for 
have  a  lien  on  the  goods,  furniture,  the  aggregate  price  of  such  articles 
and  effects  of  tenant  for  rent) ;  Ari-  and  property.  Alalama  Code  1907. 
zona  Rev.  St.  1901,  §  2695  (on  all  §  4734;  Florida  Gen.  St.  1906,  §  2239. 
property  of  tenant,  not  exempt  by  And  in  Texas  (Rev.  St.  1895,  art. 
law,  placed  upon  or  used  on  the  3235)  on  animals,  tools,  and  other 
leased  premises) ;  District  of  Colnm-  property  furnished  by  the  landlord 
6io  Code  1901,  §   1229    (on  such  of  to  the  tenant. 


1910  LIENK  IN  FAVOR  OF  LANDLORD.  §  321 

for  STicli  rent  upon  crops  grown  in  any  other  year,^^^  and  it  has 
been  decided  that  even  when  a  statute  giving  a  lien  for  advances 
did  not  expressly  confine  the  lien  to  the  crop  raised  during  the 
year  in  which  the  advances  were  furnished,  it  was  to  be  con- 
strued as  so  confining  it,  the  lien  being  for  advances  to  make  the 
crop.^23 

Though  the  rent  consists  of  a  portion  of  a  crop  of  a  specified 
character,  as,  for  example,  of  corn  or  of  cotton,  the  landlord's 
lien  to  secure  the  payment  thereof  extends  to  all  the  various 
classes  of  crops  upon  the  demised  land.^^^  And  a  fortiori  is  this 
the  case  when  the  rent  consists  of  a  specified  portion  of  all  the 
crops  raised.^2" 

(3)  Things  kept  or  used  on  the  premises.  A  statute  giving 
a  lien  on  personal  property  of  the  tenant  "used"  on  the  premises 
has  been  held  to  include  whatever  property  is  incident  to  the 
nature  and  purposes  of  the  occupation  or  business  for  which  the 
premises  were  leased,^ ^e  ^nd  to  include  things  kept  thereon  for 
sale,i27  and  cattle  kept  thereon  for  the  purpose  of  feeding  and 
improvement,^  2^  if  such  were  among  the  purposes  of  the  lease. 
A  wagon  not  kept  on  the  leased  premises,  though  used  to  deliver 
goods  sold  in  the  course  of  the  business  conducted  thereon,  was 
held  not  to  be  within  such  a  statute,i29  and  the  same  view  was 
taken  with  reference  to  railroad  rolling  stock  which  was  occa- 
sionally on  the  premises,  these  having  been  leased  for  station 
purposes. ^^° 

Where  a  statute  gave  a  lien  on  "the  goods,  furniture  and 
effects"  of  the  tenant,  the  word  "effects"  must  be  construed, 
it  was  held,  in  connection  with  "goods"  and  "furniture"  and 
as  referring  to  property  ejusdem  generis,^^'^  and  the  same  stat- 
ute was  regarded  as  extending  only  to  such  property  of  the  ten- 

122  Ballard  v.   Johnson,  114  N.  C.  127  Grant  v.  Whltwell,  9  Iowa,  152; 

141,  19  S.  E.  98;   Mills  v.  Pryor,  65  Thompson  v.  Anderson,  86  Iowa,  703, 

Ark.  214,  45  S.  W.  350.  53  N.  W.  418. 

i23-w?.lker   V.   Patterson's   Estate,  128  Thompson     v.     Anderson,     86 

S3  Tex.  Civ.  App.  630,  77  S.  W.  437.  Iowa,  703.  53  N.  W.  418. 

124  Prettyman  v.  Unland,  77  111.  120  Van  Patten  v.  Leonard,  55 
206;  Stnte  v.  Reeder,  36  S.  C.  497,  15  Iowa.  520,  8  N.  W.  334. 

S.  E.  544.  ^•''°  Trust  Co.  of  North  America  v. 

125  Knowles  v.  Sell,  41  Kan.  171,  21  Manhattan  Trust  Co..  23  C.  C.  A.  30, 
Pac.  102.  77  Fed.  82. 

12c  Grant  v.  Whitwell,  9  Iowa,  152.       isi  McKleroy    v.    Cantcy,    95    Ala. 


§  321  STATUTORY  LIENS.  I9I7 

ant  as  enjoyed  the  protection  of  the  leased  premises  and  not 
to  all  the  effects  of  the  tenant.^  ^2  Pq-^  i^q^Jj  these  reasons,  it  was 
decided,  a  mule  and  dray  used  in  the  mercantile  business  carried 
on  upon  the  premises  were  free  from  the  lien/^s  though  in  an- 
other case  in  the  same  state  the  language  of  the  statute  was  held 
to  include  mules  in  a  stable  attached  to  an  hotel  on  the  prem- 
ises leased,  and  used  in  the  hotel  business,  they  being  used  "in 
and  about"  the  premises.^^*  The  lien  does  not,  under  such  a 
statute,  attach  to  the  leasehold  interest  of  the  tenant  in  the  land 
itself  ;i35  amj  neither  such  a  statute,  nor  one  giving  a  lien  on 
property  "used"  on  the  premises,  gives  a  lien  on  accounts  due 
to  the  tenant  from  third  persons,  arising  from  the  business  con- 
ducted on  the  premises.^ 2^ 

In  a  statute  giving  a  lien  on  all  property  of  the  tenant  "situ- 
ated in  the  residence,"  the  word  "residence"  was  regarded  as 
including  not  only  the  building  occupied  by  the  tenant's  family, 
but  also  the  other  buildings  and  grounds  used  in  connection  there- 
with.187 

It  has  been  decided  that  when  the  tenant  holds  over  his  orig- 
inal term  by  consent,  the  lien  for  rent  which  accrued  during 
such  term  operates  on  chattels  brought  on  the  premises  during 
the  holding  over.^^s 

(4)  Things  on  other  premises.  The  landlord  cannot  assert 
a  lien  on  crops  or  personal  chattels  on  one  piece  of  land  for  rent 
due  him  by  the  tenant  under  a  distinct  demise  of  other  land.^^a 

295.  11  So.  258;  First  Nat.  Bank  v.  lien  on  "movable  effects"  of  the  ten- 
Consolidated  Elec.  Light  Co.,  97  Ala.  ant  was  held  to  extend  to  notes,  bills 
465,  12  So.  71.  of  exchange,  and  certificates  of  stock, 

132  Abraham    v.    Nicrosi,    87    Ala.  on   the    premises    and   belcnsing   to 

173,  6  So.  293.  the  tenant.     Matthews  v.  His  Cred- 

issMcKloroy    v.    Cantey,    95    Ala.  itors,  10  La.  Ann.  718;   Stone's  Suc- 

295,  11  So.  258.  cession,   31   La.   Ann.   31L 

134  Stephens  v.  Adams,  93  Ala.  117,  ist  York  v.  Carlisle,  19  Tex.  Civ. 
9   So.   529.  App.  269,  46  S.  W.  257. 

135  First  Nat.  Bank  v.  Consolidat-  iss  Abraham  v.  Nicrosi,  87  Ala 
ed  Elec.   Light  Co.,   97  Ala.  465,   12  173.  6  Sn.  293. 

So.  71.  130  Nelson   v.   Webb,   54   Ala.   436; 

136  McKleroy  v.  Cantey,  95  Ala.  Baker  v.  Cotney.  142  Ala.  566,  38  Sa 
295,  11  So.  258;  Van  Patten  v.  Leon-  131,  110  Am.  St.  Rep.  50;  Gittings  v. 
ard,  55  Iowa,  520,  8  N.  W.  334.  Nelson,  86  111.  591. 

In  Louisiana  a  statute  giving  a 


1918  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

But  it  has  been  held  that  he  may  assert  a  lien  on  such  property 
on  one  piece  of  land  for  rent  due  upon  another,  if  both  tracts 
can  be  regarded  as  included  in  one  demise,  though  for  separate 
rents.i^o 

The  burden  is  on  the  landlord,  claiming  a  lien  on  a  particular 
stock  of  cotton,  grain,  or  other  vegetable  product,  in  the  hands 
of  a  third  person,  to  show  that  this  was  produced  upon  the  de- 
mised premises. ^^^ 

(5)  Thing's  not  belonging  to  the  tenant.  In  giving  a  lien  upon 
the  crops  grown  upon  the  demised  premises,  the  statute  does  not 
ordinarily  restrict  it  to  crops  belonging  to  the  tenant,  and  it  has 
accordingly  been  held  to  extend  to  crops  belonging  to  a  subtenant 
as  well  as  to  those  belonging  to  the  tenant  himself,  whose  indebted- 
ness is  sought  to  be  enforced.^'*^  And  it  has  been  decided  that 
the  crop  of  a  subtenant  of  part  of  the  demised  premises  may  be 
thus  subjected  to  liability  for  the  whole  rent.^'^^  In  one  state  it 
is  provided  by  statute  that  the  crop  of  the  tenant  in  chief  must 
first  be  appropriated  to  the  satisfaction  of  the  lien,  and  that  if  the 
landlord  fails  to  proceed  against  the  crop  of  the  tenant  in  chief 
on  notice  by  the  subtenant,  he  shall  lose  his  rights  as  against  the 
latter 's  crop.^^^  And  in  another'  state  it  has  been  decided  that 
the  subtenant,  being  in  the  position  of  surety  by  reason  of  the 
liability  of  his  crop,  can  in  equity  demand  that  the  landlord  first 
exhaust  the  security  afforded  by  the  crop  of  the  principal  ten- 
ant.^ ^^     The  subtenant  whose  crop  is  thus  applied  upon  the  rent 

140 Thompson  v.  Mead,  67  111.  395;  Garroutte   v.   White,   92  Mo.   237,   4 

Scroggins    v.    Foster,    76    Miss.    318,  S.  W.  681;   Applewhite  v.  Nelms,  71 

24   So.  194.  Miss.   482,   14   So.    443;    Edwards   v. 

141  Saulsbury  v.  McKellar,  55  Ga.  Anderson,  36  Tex.  Civ.  App.  611,  82 
322;  Hays  v.  Berry,  104  Iowa,  455,  S.  W.  659;  Rutledge  v.  Walton,  12 
73  N.  W.  1028.  Tenn.    (4    Yerg.)    458,   26   Am.    Dec. 

142  Foster  v.  Goodwin,  82  Ala.  384,  240;  Forrest  v.  Durnell,  86  Tex.  647, 
2  So.  895;   Givens  v.  Easley,  17  Ala.  26  S.  W.  481. 

385;    Robinson    v.    Lehman,   72    Ala.  i43  Andrew  v.  Stewart,  81  Ga.  53, 

401;    Alston  v.   Wilson,   64   Ga.   482;  7  S.  E.  169,  12  Am.  St.  Rep.  296. 

Uhl  V.  Dighton,  25  111.  154;   Hough-  1*4  Alabama    Code    1907,     §     4744. 

ton  V.  Bauer,  70  Iowa,  314,  30  N.  W.  See  Derrick  v.  Pollard,  117  Ala.  654. 

577;    Beck  v.   Minnesota  &  Western  23  So.  659,  42  L.R.  A.  468. 

Grain  Co.,  131  Iowa,  62,  107   N.  W.  i-ts  Applewhite  v.   Nelms,  71  Miss. 

1032,  7  L.  R.  A.   (N.  S.)    930;    Hon-  482,    14    So.    443.     But    it    has    been 

tague  V.  Mial,  89  N.  C.  137;  Berry  v.  held  that  one  cultivating  on  shares 

Berry,  8  Ivan.  App.  584,  55  Pac.  348;  with   the  tenant  could  not  demand 


§321 


STATUTORY  LIENS.  1919 


due  by  the  tenant  in  chief  would  have  the  ricrht  to  assert  this  as 
a  payment  pro  tanto  upon  the  rent  due  by  him  to  the  latter.^ ^^ 

Where  the  statute,  in  addition  to  providing  for  a  lien  upon 
the  crop,  also  in  terms  made  the  subtenant  liable  for  the  rent, 
but  not  for  rent  becoming  due  before  his  interest  began,  it  was 
held  that  the  crop  of  the  subtenant  was  subject  to  a  lien  only 
for  the  rent  which  accrued  during  the  subtenant's  tQxvo.}^'^ 

The  lien  of  the  principal  landlord  upon  the  crop  of  a  subtenant 
is,  it  has  been  decided,  prior  to  the  lien  of  the  sublessor.i^s 

In  one  case  a  tenant  holding  over,  knowing  that  the  prem- 
ises had  been  leased  to  another  person  for  the  ensuing  year,  was 
apparently  regarded  as  a  subtenant,  and  it  w^as  said  that  the  crop 
raised  by  him  was  "subject  to  the  rental  contract  between  the 
landlord  and  the  tenant,  at  least  to  the  extent  of  his  liability 
under  his  contract  for  holding  over.''^''^  There  was  no  discus- 
sion of  the  matter  or  further  explanation  of  w^hat  was  in  the 
mind  of  the  court. 

In  one  state,  where  the  statute  prohibits  a  sublease  without 
the  landlord's  assent,  it  seems  to  be  held  that  the  subtenant's 
crop  is  not  subject  to  the  lien  if  the  landlord  assents  to  the  sub- 
lease, while  it  is  so  subject  if  he  does  not  assent.i^^  But  in  an- 
other state,  where  a  similar  statute  is  in  force,  the  landlord's 
assent  to  a  sublease  or  assignment  is;  not  considered  to  affect  his 
right  to  a  lien  on  the  subtenant's  or  assignee's  crop,!'^!  it  being 
in  one  case  said  that  if  the  sublease  or  assignment  is  without  the 
landlord's  assent,  the  sublessee  or  assignee  is,  as  regards  the 
landlord,  to  be  regarded  as  merely  an  employee  of  the  lessee, 
while  if  with  the  landlord's  assent,  the  sublessee  or  assignee  is 
to  be  regarded  as  a  tenant  of  the  original  landlord  for  this  pur- 
pose.^'^^ 

that  the  landlord  levy  first  on  prop-  7  S.   E.  169,  12   Am.   St.   Rep.  296; 

erty   of   the   tenant   other    than    the  Thompson  v.  Commercial  Guano  Co., 

crop.     Alston  v.  Wilson,  64  Ga.  482.  93  Ga.  282,  20  S.  E.   309. 

146  Thompson  v.   Commercial   Gua-  is^  Williams    v.    Braden,     63     Mo. 

no  Co.,  93  Ga.  282,  20  S.  E.  309.     See  App.   513;    Edwards  v.  Anderson,  36 

ante,  §  177  e.  Tex.   Civ.    App.    611,   82    S.   W.    659; 

14T  Garroutte  v.  White,  92  Mo.  237,  Marrs    v.    Lurapkins,    22    Tex.    Civ. 

4  S.  W.  681.  App.  448,  54  S.  W.  775;  Trout  v.  Mc- 

14R  Montague  v.  Mial,  89  N.  C.  137.  Queen  (Tex.  Civ.  App.)  62  S.  W.  928. 

149  Bain  v.  Wells,  107  Ala.  562,  19  152  Forrest  v.  Durnell,  86  Tex.  647, 

go.   774.  26  S.  W.  481. 

160  Andrew  v.  Stewart,  81  Ga.  53, 


1920  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

The  statutes  giving  a  lien  to  the  landlord  upon  property  or 
chattels,  other  than  crops,  upon  the  premises,  usually  restrict  it 
in  terms  to  things  belonging  to  the  tenant,  and  in  such  case,  it 
is  obvious,  there  is  no  right  to  a  lien  upon  the  property  of  other 
persons.^^3  ^nd  it  has  even  been  decided  that  such  a  statute 
gives  no  lien,  in  favor  of  one  who  has  leased  to  a  firm,  upon  prop- 
erty belonging  to  one  member  of  the  firm.!^"*^  Occasionally,  as 
shown  elsewhere,  property  of  a  third  person  may  be  subject  to 
the  lien  as  being  apparently  the  property  of  the  tenant.i^^  T]ie 
Maine  statute  expressly  gives  a  lien  for  rent  upon  all  buildings  on 
the  premises,  although  they  may  be  owned  by  persons  other 
than  the  lessee.^^^ 

In  Kentucky  it  has  been  decided  that  under  a  statute  giving 
a  lien  for  a  year's  rent  to  the  landlord  upon  the  property  of  the 
tenant  or  undertenant,  the  lien  exists  upon  property  of  an  as- 
signee of  the  leasehold  for  a  year's  rent,  though  he  has  reassigned 
to  another,  thus  relieving  himself  from  personal  liability .i^''' 

Even  though,  by  the  terms  of  a  sale  of  chattels  to  the  tenant, 
the  title  remains  in  the  vendor,  they  may  be  subject  to  the  land- 
lord's lien,  by  reason  of  failure  to  properly  record  the  sale.^'^s 
Apart  from  any  question  of  recording,  apparently,  the  vendee 
has,  or  may  have,  in  such  case,  an  equitable  interest  which  is 
subject  to  the  lien.^^^ 

(6)  Things  exempt  from  execution.  Occasionally  the  statute 
gives  a  lien  only  on  property  subject  to  execution,is<>  or  on  prop- 
erty not  exempt  therefrom,!'^^  or  provides  that  the  statute  shall 

163  Johnson  v.  Douglass,  13  D.  C.  R.   A.   513    (by   a   majority   of   four 

(2  Mackey)  36;   Perry  v.  Waggoner,  judges  to  three). 

68  Iowa,  403,  27  N.  W.  292;    Schurz  iss  Cohen  r.  Candler,  79  Ga.  427,  7 

V.  McMenamy,  82   Iowa,  432,  48   N.  S.  E.   160;    Gartrell  v.  Clay,  81  Ga. 

W.    806;    Needham    Piano    &    Organ  327,  7  S.  E.  161. 

Co.     V.     Hollingsworth     (Tex.     CiT.  is9  See  Bingham  v.  Vandegrift,  93 

App.)   40  S.  ¥/.  750;  Davis  v.  Wash-  Ala.  283,  9  So.  280. 

ington,  18  Tex.   Civ.  App.    67,   43   S.  leo  District  of  Columbia  Code  1901. 

"W.   585.  §  1229.     See  The  Richmond  v.  Cake, 

154  Ward  V.  Walker,  111  Iowa,  611,  1  App.  D.  C.  447. 

82  N.  W.  1028.  ^61- Arizona  Rev.  St.  1901,  §   2695; 

155  See  post,   §   321  f.  Iowa  Code  1897,  §  2992;   Utah  Comp. 

156  See  Union  Water  Power  Co.  v.  Laws  1907,  §  1407.  As  to  the  provi- 
Chabot,  93  Me.  339,  45  Atl.  30.  sions    of    the   Kentucky   statutes    In 

157  Myer  Bros.'  Assignee  v.  Gaert-  this  respect,  see  Rudd  v.  Ford,  91 
ner,  106  Ky.  481,  50  S.  W.  971,  45  L.  Ky.  183,  15  S.  W.  179. 


»  221  STATUTORY  LIENS.  1921 

not  affect  any  act  exempting  property  from  forced  sale.i«2  in 
the  absence  of  any  such  provision  in  the  statute,  however,  the 
lien  has  been  held  to  take  priority  over  any  claim  of  exemp- 
tion ^^^ 

The  Iowa  statute,  giving  the  landlord  a  lien  for  his  rent  "upon 
all  crops  grown  upon  the  demised  premises,  and  upon  any  other 
personal  property  of  the  tenant  which  has  been  used  on  the 
premises  during  the  term,  and  not  exempt  from  execution,  has 
been  construed  as  giving  the  tenant  a  right  of  exemption  as 
against  the  lien  on  the  "other  personal  property"  only  and  not 
as  against  that  on  the  crops.^^^  In  Texas  the  statute,  while  it 
expressly  provides  that  the  lien  on  the  crops,  as  well  as  that  on 
things  supplied  by  the  landlord  to  the  tenant,  shall  take  pre- 
cedence of  the  claim  for  exemption,  makes  the  lien  on  other 
things  on  the  premises  inferior  to  the  right  of  exemption 

The  person  asserting  the  right  of  exemption  as  against  the  lien 
has  been  held  to  have  the  burden  of  showing  what  part  of  the 
property  is  exempt.^ «« 

Where  the  statute  gave  a  lien  on  property  kept  or  used  on  the 
premises  during  the  term,  and  not  exempt  from  execution,  it  was 
held  that  property  left  on  the  premises  after  the  term,  previously 
exempt  did  not  become  subject  to  the  lien  because  the  right  ot 
exemption  then  came  to  an  end,  since  the  right  to  a  lien  came  to 
an  end  at  the  same  time.i«^  . ,    ,    ^  ,    •, 

The  right  of  exemption  must,  it  has  been  decided,  be  asserted 
before  judgment  foreclosing  the  lien  is  rendered.i^s 

(7)     Proceeds  of  sale.     A  statute  giving  a  lien  on  crops  or 
chattels  on  the  premises  does  not  ordinarily  give  a  lien  on  the 

r^          -o^^   cf    isqr,    art   2251.  Type  Foundry  v.  Taylor   (Tex.  Civ. 

;::rpart    Ba  nes    84  Ala    540,  a'pp.)   35  S.  W.  691.    In  Ken.ucUy, 

4  s     TCS-Tallafevro  ;.  Pry.  41  Oa.  HRewI^e,  the  lien  on   the  .rop,   .s 

U,     Hil     V    George    38   Tenn.    (1  expressly  made  superior  to  the  right 

Head)       4;  Ha^relW.  Fagan.  43  Ga.  of  exemption.     Ky.  St    1903,  I  2  2. 

Heaaj  i»*,  '^  lec  Hays  v.   Berry,   104  Iowa,   4o5, 

^^^'  -r,  ,  ^    ini  Tnwa    9S2  T-?  N   W    1028;    Hilman  v.  Brigham, 

i64Hipsley  v.  Price,  104  Iowa,  ^8/.  i6  in.         i       , 

_-  ,,    ^    584  117  Iowa,  70,  90  N.  Tv.  491. 

xc^Texas  Rev.  St.  1895.  arts.  3237.       i- Bacon   v.   Carr.   112   Iowa.  193, 

,251      See  Champion  v.  Shumate,  90  83  N.  W.  957.  ,      ,„   „         _, 

Tex    597    39  S.  W   128,  362.  40  S.  W.       -s  York  T.   Carlisle.   19   Tex    Civ. 

T94;   Stokes  v.  Barney.   3  Tex.   Civ.  App.    269,    46    S^^^"    ^^^i    MUls    v. 

Ipp.    219,   22    S.  W.   126;    St   Louis  Pryor.  65  Ark.  214,  i5  S.  W.  350. 

L.  and  Ten.  121. 


1922  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

proceeds  of  a  voluntary  sale  thereof  by  their  ownor.^^^  But  it 
has  been  held  that  if  the  landlord  allows  the  tenant  to  sell  the 
property  subject  to  the  lien,  under  an  agreement  that  the  pro- 
ceeds shall  be  applied  on  the  rent,  he  is  entitled  to  the  proceeds 
as  against  subsequent  garnishments  thereof.^"^"  And  if  the  prop- 
erty is  sold  in  judicial  proceedings,  not  brought  to  enforce  the 
lien,  the  lien  binds  the  proceeds.^''^  In  one  state  a  statute  pro- 
viding that  the  lien  may  be  enforced  by  attachment,  which  may 
be  levied  on  the  crops  or  the  proceeds  thereof,!'''^  has  been  held 
to  extend  the  lien  to  the  proceeds  of  the  sale  of  the  crops.^'^* 

It  has  been  decided  that  a  lien  in  favor  of  the  landlord  on  par- 
ticular chattels  does  not  extend  to  the  proceeds  of  insurance 
thereon.^'''* 

e.  Persons  entitled  to  assert  the  lien — (1)  Assignees.  In 
several  eases  a  transferee  of  the  reversion  has  been  regarded  as 
entitled  to  assert  the  lien,i'^°  and  this  seems  the  obvious  construc- 
tion to  be  placed  on  a  statute  giving  a  lien  to  the  "landlord."  It 
has  been  decided  that  one  to  Avhom  the  land  was  mortgaged  prior 
to  the  lease  has  no  such  right,  he  not  being  the  landlord.^'^^ 

In  one  state  it  has  been  held  that  the  lessor  may  assert  a  lien 
for  rent  though  he  has,  since  the  rent  accrued,  transferred  the 

leoMcKleroy    v.    Cantey,    95    Ala.  its  Alabama  Code  1907,  §  4741. 

295,  11  So.  258;  Hartwig  v.  lies,  131  its  Scaife  v.   Stovall.   67   Ala.  237: 

Iowa,    501,    109   N.   W.   18;    Hove   v.  Barnett  v.  Warren,  82  Ala.  557,  2  So 

Stanhope  State  Bank,  138  Iowa,  39,  457;   Ehrman  v.  Gates,  101  Ala.  601 

115    N.    W.    476;    Jones   v.    Stevens  14  So.  361. 

(Mi3S.)     12    So.    446;     Newman    v.  i74  in   re  Rels,  3  Woods,   18,  Fed 

Ward  (Tex.  Civ.  App.)  46  S.  W.  868;  Cas.  No.  11,684. 

Estes  V.  McKInney  (Tex.  Civ.  App.)  its  Simmons    v.    Fielder,    46    Ala 

43    S.  W.    556.  304;  Kennard  v.  Harvey,  80  Ind.  37; 

170  Bergman  t.  Guthrie,  89  Iowa,  Tucker  v.  Whitehead,  58  Miss.  762. 
290,  56  N.   W.   502.  This    is  proJiumably   what   is  meant 

171  Bryan  v.  Sanderson,  10  D.  C.  by  statementa  that  an  assignee  of 
(3  MacArthur)  431;  McKleroy  v.  the  "lease"  Is  entitled  to  the  benefit 
Cantey,  95  Ala.  295,  11  So.  258;  of  the  lien  (Haywood  v.  O'Brien,  52 
Smith  V.  Huddleston,  103  Ala.  223,  Iowa,  537.  3  N.  W.  545;  Taylor  x. 
15  So.  521;  Gilbert  v.  Greenbaum,  56  Nelson,  54  Miss.  524).  Strictly 
Iowa,  211,  9  N.  W.  182;  Davis  v.  speaking,  an  assignee  of  the  "lease" 
Goldberg,  75  Tex.  48,  12  S.  W.  952.  is  not  the  landlord  (See  ante,  § 
See   In  re  Bowne,  12  N.  B.  R.   529,  146   b). 

Fed.    Cas.    No.    1,741,    and    post,    at       i76  Drakford  y.  Turk,  75  Ala.  339. 
notes  399,  400. 


§321 


STATUTORY  LIENS.  1923 


reversion.i^^     Ordinarily,  it   seems,   the   transferor  would  have 
no  right  to  assert  a  lien  for  rent  or  advances.^ '^* 

It  has  been  decided  in  one  state  that,  in  the  absence  of  a  stat- 
utory provision  to  the  contrary,  an  assignee  of  the  rent  alone, 
or  of  the  "rent  note,"i^s  does  not  acquire  any  right  to  assert 
the  lien  for  rent.^'^^  In  other  states  it  is  held  that,  in  the  ab- 
sence of  express  statutory  authorization,  the  assignee  cannot 
enforce  the  lien  by  the  ordinary  statutory  remedies  belonging 
to  the  landlord,  such  as  attachment  or  distress,iso  b^t  that  he 
may  assert  it  in  a  court  of  equity.i^^  In  one  state  the  statute 
expressly  gives  the  assignee  of  the  rent  the  same  remedies  as  the 
assignor,"^  and  this  has  been  regarded  as  entitling  him  to  as- 
sert a  lien  therefor.^^' 

One  does  not,  it  has  been  decided,  absolutely  lose  the  benefit 
of  the  lien  by  assigning  his  claim  for  rent  as  collateral  security, 
and,  upon  payment  of  the  debt  and  consequent  redemption  of  the 
note,  his  right  to  enforce  the  lien  is  revived.^  ^4 

1T7  Meyer  v.  Oliver,  61  Tex.  584.       should  arise  in  favor  of  the  trans- 

iTTaSee    Watkins    v.     Duvall,    69    feree.     But    Lathrop    v.    Clewis,    63 

Miss.  364,  13  So.  727.  Ga.     282,     supra,    was    folloTred     in 

178  See  ante,  §  180  c   (4),  at  note    Rawls  v.  Moye,  98  Ga.  564,  25  S.  B. 

ggg   ^  '  582.     It  is  now  provided  (Supp.  Code 

1T9  Roberts  v.  Jacks,   31  Ark.   597,    1901,  §  6217)  that  the  lien  shall  pass 

25  Am.  Rep.  584;  Block  v.  Smith,  61    on  an  assignment  of  the  rent  note. 

Ark    266,  32  S.  W.  1070.     But  if  the        iso  Foster  v.  Westmoreland,  52  Ala. 

crop    is    delivered    in    payment    of    223;   Gross  v.  Bartley,  66  Miss.  116, 

the  note  to  one  to  whom  it  had  been    5  So.   225;    Manls  v.  Flood.  19  Tex. 

transferred  as  collateral  security,  he    Civ.   App.   591.  47   S.   W.   1017.     But 

may  retain  it  on  behalf  of  his  trans-  see  Keith  v.  Blanton,  71  Miss.  821,  15 

feror.     Meyer  v.  Bloom,  37  Ark.  43.    So.  132. 

In  Georgia  it  was  held  that  though  lai  Westmoreland  v.  Foster.  60  Ala. 
the  statute  authorized  the  assign-  448;  Newman  v.  Greenville  Bank,  66 
ment  of  the  lien,  the  assignment  of  Miss.  323,  5  So.  753;  Hatchett  ▼. 
the  "rent  notes"  alone  did  not  carry    Miller  (Tex.  Civ.  App.)  58  S.  W.  357. 

the  lien.     Lathrop  v.  Clewis,  63  Ga.       is2  Alabama    Code    1907,    §§    4737. 

282.     In  Andrew  v.  Stewart,  81  Ga.    4739.   4752. 

53   7  S.  E.  169,  12  Am.  St.  Rep.  296,       i hi  Bennett  v.  McKee,  144  Ala.  601, 

It  was  held  that  the  law  in  this  re-   38  So.  129. 

spect  was  changed  by  a  statute  de-       im  Dickinson    v.    Harris,    52    Ark. 

daring  that  if  a  written  "rent  con-    58,  11  S.  W.  965:  VJirner  v.  Rice,  39 

tract"  be  transferred  in  writing  be-   Ark.  344;  Farwell  v.  Grier,  88  Iowa, 

fore  the  maturity  of  the  crop,  on  the    88. 

maturity  of  the  crop  a  special  lien 


1924  LIENS  IN  FAVOR  OF  LANDLORD.  |  321 

A  statute  giving  the  benefit  of  the  lien  to  an  assignee  has  been 
held  to  extend  to  the  case  of  an  assignment  by  way  of  mortgage 
or  security.! ^^'^^^  In  spite  of  such  a  statute  the  assignor  may, 
it  has  been  decided,  reserve  the  benefit  of  the  lien  to  secure  him- 
self against  loss  by  reason  of  his  indorsement  of  the  rent  note.^^^ 

A  statute  authorizing  the  assignment  of  the  lien  for  rent  or  ad- 
vances does  not  authorize  the  landlord  to  assign  to  another  the 
right  both  to  make  advances  and  to  claim  a  lien  therefor.^^s  ^^j^^j 
an  assignee  of  the  rent  is  not  a  landlord  and  so  vested  with  the 
right  to  a  lien  for  advances  made  by  him.^^® 

In  one  case  the  surety  on  a  rent  note,  paying  the  note,  was  re- 
garded as  entitled  to  the  benefit  of  the  landlord's  lien,!^o  as  were, 
in  another,  apparently,  mechanics  who  made  improvements  on 
the  premises  under  contract  with  the  tenant,  on  the  faith  of  the 
landlord's  agreement  that  the  improvements  should  be  paid  for 
by  the  tenant  out  of  the  rent  accrued  and  to  accrue.^^^ 

(2)  Persons  acting  in  behalf  of  others.  It  has  been  decided 
that  where  the  lease  is  made  by  one  as  "trustee,"  he  may  insti- 
tute a  proceeding  in  his  own  name  to  foreclose  a  lien  for  ad- 
vances, though  the  land  and  the  sums  advanced  belonged  to  an- 
other.^^2  And  one  who  leased  his  wife's  land  in  his  own  name 
and  took  a  note  for  rent  payable  to  himself  as  attorney  was  al- 
lowed to  enforce  the  lien  under  a  statute  allowing  recovery-  by 
"one  with  whom  and  in  whose  name  a  contract  is  made  for  the 
benefit  of  another.  "^^^ 

f.  Priorities — (1)  General  considerations.  The  statutes  in  a 
number  of  states,  in  providing  that  the  landlord  shall  have  a 
lien  for  rent  or  advances,  refer,  in  express  language,  to  the  ques- 
tion of  the  priority  of  the  lien  as  against  other  liens  or  transfers. 
Occasionally  the  lien  is  merely  referred  to  as   a  "preference" 

i85,is6  Andrew  v.    Stewart,    81    Ga.  iso  State  v.  Elmore,  68  S.  C.  140,  46 

53,  7  S.  E.  169,  12  Am.  St.  Rep.  296;  S.  E.  939. 

Ballard  v.  Mayfield,  107  Ala.  396,  18  lao  Shields    v.    Atkinson,    67    Ala. 

So.  29.  244. 

187  Strickland  v.  Stiles,  107  Ga.  i9i  Rubel  v.  Avritt,  20  Ky.  Law 
308,  33  S.  E.  85,  45  L.  R.  A.  204,  73  Rep.  896,  48  S.  W.  432. 

Am.  St.  Rep.  122.  192  Fargason  v.  Ford,  119  Ga.  343, 

188  Bell  T.  Hurst.  75  Ala.  44;  Leslie   46  S.  E.  431. 

V.   Hinson,   83   Ala.   266,    3   So.    443;        laa  Dickinson    v.    Harris,    48    Ark. 
Henderson  v.  State,  109  Ala.   40,  19    S55,  3  S.  W.  58. 
So.   733. 


§  321  STATUTORY  LIENS.  1925 

lien,^^^  or  as  a  "prior  and  preferred"  lien,^'''  while  some  statutes 
expressly  provide  that  it  shall  be  paramount  to  all  other  liens,^''® 
with  the  exception,  in  some  states,  of  liens  for  taxes,^^''  liens  of 
laborers,^ ^s  and,  in  one  state,  of  the  lien  for  purchase  money .1®^ 
In  one  state  it  is  provided  in  terms  that  the  lien  on  the  crop  for 
advances  shall  have  preference  over  any  mortgage  or  other  con- 
veyance.200  In  two  states  it  is  provided  that  the  lien  on  supplies 
furnished,  or  on  things  obtained  with  supplies  furnished  or  ad- 
vances made,  for  the  value  of  the  supplies  or  advances,  shall  be 
prior  to  all  other  liens. -'^^•202 

The  word  "lien"  is,  as  before  intimated,  somewhat  lacking  in 
certainty  of  meaning,  but  a  statutory  provision  that  one  person 
shall  have  a  lien  on  a  particular  class  of  property  belonging  to 
another  would  seem,  prima  facie,  to  signify  that  he  has  a  right 
to  proceed  against  such  property,  in  order  to  realize  his  claim, 
to  the  exclusion  of  those  persons  who  may  have  obtained  an  in- 
terest in  the  property,  or  an  incumbrance  thereon,  after  the  in- 
ception of  the  lien,  provided  at  least  those  persons  had  notice 
thereof.  In  other  words,  one  to  whom  a  "lien"  on  specific  prop- 
erty is  given  by  statute  has  presumably  the  same  rights  in  this 
regard  as  would  one  who  is  given  a  lien  by  decree  of  a  court  of 
equity .203  The  only  alternative  would  seem  to  be  to  regard  the 
"lien"  as  giving  a  right  merely  to  realize  the  claim  from  the  class 
of  property  named,  so  far  as  it  may  not  have  been  transferred 
Of  incumbered  by  the  debtor  before  the  commencement  of  pro- 
ceedings to  enforce  the  lien.  That  the  operation  of  the  lien  is 
not  thus  dependent  on  the  commencement  of  proceedings  to  en- 
force it  has  been  clearly  asserted  ;204  and  that  the  lien  of  the  land- 
is*  Texas  Rev.  St.  1S95,  §§  3238.  i98  Ceorcrm  Code  1895,  §  2796;  Z7«aft 
S251.  Comp.  Laws  1907,  §  140S. 

195  South  Carolina  Civ.  Code  1902,        iss  Utah  Comp.  Laws  1907,  §  1408. 
§    3057.  200  Arkansas,  Kirby's  Dig.  St.  1904, 

1^0  Alabama    Code    1907,    §§    4734,    §  5033. 

201,202  Florida  Gen.  St.  1906,  §  2239; 
Mississippi  Code  1906,  §  2832. 

20s  See  2  Pomeroy,  Eq.  Jur.  §  716, 


4747;  Florida  Gen.  St.  1906,  §  2237 
Mississippi  Code  1906,  §§  2832,  2833 
North  Carolina  Revisal  1905,  §  1993 


Tennessee,    Shannon's   Code   1896,    §  et  seq. 

5299;   Yirginia  Code  1904,  §  2496.  204  Hunter  v.  Whitfield,  89  111.  229. 

i^T  Alabama    Code    1907,    §    4747;  See  Strauss  v.  Baley,  58  Miss.  131; 

Georgia    Codo    1S95.    §    2796;     Utah  Grant  v.  Whitwell,  9  Iowa,  152;  Gar- 

Comp.  Laws  1907,  §  1408.  ner  v.  Cutting,  32  Iowa,  547;   Scully 


1926  LIENS  IN  FAVOR  OF  LANDLORD.  §321 

lord  is  not  to  be  postponed  to  the  claims  of  subsequent  pur- 
chasers and  incumbrancers  is  recognized  even  in  the  states  in 
which  the  statute  does  not  in  express  terms  provide  for  the  prior- 
ity of  the  lien.205  Conversely,  even  in  states  in  which  the  stat- 
ute does  so  provide,  the  question  of  priority  is  not  infrequently 
adjusted  with  reference  to  equitable  or  other  considerations,  such 
as  whether  the  person  claiming  adversely  is  a  hona  fide  purchaser 
for  value,206  or  whether  the  sale  to  him  was  in  the  ordinary  course 
of  business.^®'' 

The  right  of  the  landlord  to  realize  his  claim  from  the  crops  on 
the  premises  on  which  the  statute  gives  him  a  lien,  as  against 
persons  who  have  acquired  interests  in  the  crops  after  the  com- 
mencement of  the  tenancy,  has  been  freely  recognized,  in  states 
in  which  there  is  no  express  provision  as  to  priority  as  well  as 
in  those  in  which  there  is  such  a  provision.-^^  As  regards  things 
brought  upon  the  premises,  on  the  other  hand,  the  landlord's  lien 
is  regarded  as  taking  priority  of  such  rights  only  as  v/ere  ac- 
quired by  third  persons  after  the  things  were  so  brought,^*'^  since 
otherwise  an  innocent  purchaser  or  incumbrancer  of  chattels 
might  be  defeated  by  their  subsequent  removal  to  leased  prem- 
ises; and  this  view  has  been  adopted  even  in  a  jurisdiction  in 
which    the    statute    expressly    makes  the    landlord's   lien    para- 

v.  Porter,  57  Kan.  322,  46  Pae.  313;  Kan.  App.  197,  52  Pac.  704;  Dawson 

Berkey    &    Gay    Furniture     Co.     v.  y.  Coffey,  48  Mo.  App.  109;    Lane  v. 

Sherman  Hotel  Co.,  81  Tex.  135,  16  Pollard,  88  Mo.  App.  326;    Williams 

S.  W.  907,  26  Am.  St.  Rep.  783;  New-  v.  De  Lisle  Store  Co.,  104  Mo.  App. 

man  v.  Ward  (Tex.  Civ.  App.)  46  S.  567.  79  S.  W.  487;  Beckwith  v.  Bent, 

W.   868;    Anderson  v.  Henry,  45  W.  49  Ky.    (10  B.   Mon.)    95. 

Va.  319,  31  S.  E.  998.  aos  Webb    v.    Sharp,   80    U.   S.    (13 

206  See  post,  at  notes  207,  208.  Wall.)    14,  20  Law.  Ed.  478;   Fowler 

206  See  post,  at  notes  221,  232.  y.  Rapley,   82  U.   S.    (15  Wall.)    328, 

«07See    pest,    at  notes   233-238.  21  Law.  Ed.  35;    Beall  v.  White,  94 

208  Watt    T.    Scofleld,    76    111.    261;  U.  S.  382,  24  Law.  Ed.  173;  Kyle  v. 

Prettyman    v.    Unland,    77    111.    206;  Swem,    99    Ala.    573.    12     So.    410; 

Harvey    r.    Hampton,    108    111.    App.  Selsel  v.  Polmar,  103  Ala.  491,  15  So. 

501;  Holden  v.  Cox,  60  Iowa,  449,  15  850;   Wright  v.  Rothschild's  Sons  & 

N.    W.    269;    Beck    v.    Minnesota    &  Co.,  13  Ky.  Law  Rep.  336;  Garner  v. 

Western  Grain  Co.,  131  Iowa,  62,  107  Cutting,  32  Iowa,  547.     The  Florida 

N.  W.  1032,  7  L.  R.  A.   (N.  S.)   930;  statute    (Gen.  St.   1906,   §   2237)    ex- 

Stadel  V.  Aikins,  65  Kan.  82,  68  Pac.  pressly  go  provides. 

1088;   Sallna  State  Bank  t.  Burr,  7 


§  321  STATUTORY  LIENS.  1927 

mount,''®  as  well  as  one  in  which  the  statute  provides  that  the 
lien  shall  commence  with  the  commencement  of  the  tenancy.^^* 
Occasionally  the  landlord's  lien  has  been  given  priority  as 
against  the  claims  of  others  upon  the  ground  of  a  failure  to 
record  the  instruments  evidencing  such  claims,  as  provided  by 

Statute.212.  213 

It  has  been  decided  that  the  landlord  has  a  lien,  although  the 
statute  creating  the  lien  was  not  passed  till  after  the  commence- 
ment of  the  tenancy,  but  that  such  lien  cannot  take  priority  over 
a  specific  lien  or  incumbrance  existing  on  the  property  prior  to 
the  passage  of  the  statute.^i^ 

The  question  of  the  priority  of  the  lien  of  the  landlord  as 
against  a  conveyance  or  incumbrance  in  favor  of  another  is  in- 
dependent of  the  time  of  the  maturity  of  the  claim  secured  by 
the  lien.  Thus,  the  lien  for  rent  may  take  priority  of  a  convey- 
ance or  incumbrance  taking  effect  prior  to  the  time  the  rent  be- 
comes duc^i!^  And  a  lien  for  advances  may,  it  has  been  decided, 
so  take  priority  over  a  conveyance  executed  even  before  the 
making  of  the  advances.^^^ 

The  Virginia  statute,  which  prohibits  one  obtaining  a  lien  on 
goods  on  the  leased  premises  "after  the  commencement  of  any 
tenancy"  from  removing  the  goods  till  after  payment  of  a  year's 
rent,2i7  has  been  the  subject  of  occasional  judicial  decision.     It 

«io  See  Seisel  v.  Folmar,  103  Ala.  v.  Cutting,  32  Iowa,  547;  Beckwlth 
491,  15  So.  850.  V.    Bent,   49    Ky.    (10   B.    Mon.)    95; 

2111  District  of  Columbia.  See  Bourcier  v.  Edmondaon,  58  Tex.  675; 
Webb  V.  Sharp,  80  U.  S.  (13  Wall.)  Polk  v.  King,  19  Tex.  Civ.  App.  666. 
14,  20  Law.  Ed.  478;  Fowler  v.  Rap-   48  S.  W.  601. 

ley,  82  U.  S.  (15  Wall.)  328,  21  Law.       216  Wells  v.  Thompson,  50  Ala.  83; 
Ed.  35.  Dowling  v.  Wall,  114  Ala.  58,  21  So. 

212,213  See  Cohen  v.  Candler,  79  Ga.  948.  In  Powell  y.  Perry,  127  N.  C. 
427,  7  S.  E.  160;  Gartrell  v.  Clay,  81  22,  37  S.  E.  71,  it  was  held  that  the 
Ga.  327,  7  S.  E.  161;  Berkey  &  Gay  lien  of  a  landlord  on  the  crop  for 
Furniture  Co.  v.  Sherman  Hotel  Co.,  supplies  furnished  his  tenant  took 
81  Tex.  135,  16  S.  W.  807,  26  Am.  St.  effect  as  of  the  time  of  furnishing 
Rep.  783;  Austin  v.  Welch,  31  Tex.  the  supplies,  though  the  landlord  did 
Civ.  App.  526,  72  S.  W.  881;  Liquid  not  pay  the  tradesman  from  whom 
Carbonic  Acid  Mfg.  Co.  v.  Lewis,  32  the  supplies  were  obtained  until  af- 
Tex.  Civ.  App.  481,  75  S.  W.  47.  ter  he  had  instituted  suit  to  recover 

2i4Arbuckl9  v.  Nelms.  ."^0  Miss,  the  crop  from  one  who  had  seized 
556:   Storm  v.  Green,  51  Miss.  103.       It. 

21B  Sevier   v.   Shaw,   25   Ark.   417;        217  See  ante,  at  note  19. 
Watt  V.  Scofield,  76  III.  261;  Garner 


1928  LIENS  IN  FAVOR  OF  LANDLORD.  •  §  321 

has  been  decided  tliat  one  holding  over  by  consent  after  the 
original  term  holds  under  a  new  tenancy,  so  that  a  lien  created  in 
favor  of  a  third  person  during  the  original  tenancy  is  not  "after 
the  commencement  of"  the  tenancy,  so  as  to  give  the  landlord 
priority,^!^  and  a  like  decision  was  made  where  the  lease  was 
renewed,  not  in  accordance  with  the  provisions  of  the  original 
lease.2iQ  A  provision  in  the  similar  West  Virginia  statute,  that 
it  shall  not  affect  the  priority  of  the  lien  for  taxes,  does  not,  it 
has  been  held,  enable  the  tenant  himself,  by  purchasing  the  goods 
at  tax  sale,  to  displace  the  landlord's  lien. 220 

(2)  Pui'chasers  v/ith  notice — (a)  Ordinarily  take  subject 
to  lien.  The  lien  is  ordinarily  effective  as  against  persons  pur- 
chasing the  crop,  or  other  property  on  which  the  lien  is  given, 
v/ith  notice  of  the  lien.221  The  only  cases,  perhaps,  in  which  such 
a  purchaser  takes  free  from  the  lien  are  those  hereafter  re- 
ferred to,  in  which  the  sale  of  the  property  is  in  the  usual  course 
of  business,22ia  ^nd  those  in  which  the  landlord  waives  the  right 
to  assert  the  lien  as  against  such  purchaser,  or  estops  himself  to 
do  so.222 

The  purchaser  cannot  assert,  as  against  the  landlord  asserting 
the  lien,  that  there  is  other  property  subject  to  the  lien,  not  pur- 
chased by  him.223  * 

(b)  What  constitutes  notice.  In  order  to  charge  a  purchaser 
with  notice  of  the  lien  within  the  above  rule,  it  is  not  necessary 
that  he  have  actual  knowledge  of  the  unsatisfied  claim  for  rent 
or  advances,  but  it  is  sufficient  that  he  have  knowledge  of  facts 
putting   him   on  inquiry   in   this   regard.     Knowledge   that   the 

218  City  of  Richmond  v.  Duesberry,  Bank  v.  Meyer,  55  Ark.  499,  20  S. 
27  Grat.    (Va.)    210.  W.  406;  Noe  v.  Layton,  69  Ark.  551, 

219  Upper  Appomattox  v.  Hamil-  64  S.  W.  880;  Soluble  Pacific  Guano 
ton,  83  Va.  319,  2  S.  E.  195.  See  Co.  v.  Harris,  78  Ga.  20;  Harvey  v. 
Wades  v.  Figgatt,  75  Va.   575.  Hampton,  108  III.  App.  501;   Holden 

22oBartle.tt  v.  Lowndes,  34  W.  Va.  v.  Cox,  60  Iowa,  449,  15  N.  W.  269; 

493,  12  S.  E.  762.  Cooper  v.  Baker,  54  Miss.  637;  Estes 

22iHussey  t.  Peebles,  53  Ala.  432;  y.  McKlnney  (Tex.  Civ.  App.)   43  S. 

Barnett   v.   Warren,    82   Ala.    557,    2  W.  556. 

So.  457;  Andrews  Mfg.  Co.  v.  Porter,  221a  See  post,  §  321  f  (2)    (c). 

112  Ala.   381,  20  So.  475;   Fowler  v.  222  See  post,  §  321  1. 

Rapley,  82  U.  S.    (15  Wall.)    328,  21  223  Couch  v.  Davidson,  109  Ala.  313, 

Law.  Ed.  35;  Volmer  v.  Wharton,  34  19  So.  507;  Andrew  Mfg.  Co.  v.  Por- 

Ark.    691;     Merchants'    &    Planters'  ter,  112  Ala.  381,  20  So.  475. 


§321 


STATUTORY  LIENS.  19-9 


crops  on  which  the  lien  is  asserted  were  grown  upon,  or  that  the 
chattels  on  which  the  lien  is  asserted  were  kept  upon,  demised 
premises,  has  been  frequently  referred  to  as  sufficient  to  charge 
the  purchaser  under  this  rule.224  The  cases  are  not,  however,  ex- 
plicit as  to  whether  a  purchaser  is  charged  with  notice  that  the 
person  disposing  of  the  crops  or  chattels  on  particular  land  is 
holding  merely  as  tenant  to  another,  or  whether  he  must  have 
actual  notice  of  the  existence  of  the  relation  of  tenancy  with  ref- 
erence to  this  land  in  order  to  be  charged  with  notice  of  the 
lien.  In  a  number  of  cases  the  fact  that  the  purchaser  had 
knowledge  of  the  relation  of  tenancy  is  referred  to  as  one  of 
the  facts  authorizing  a  finding  of  notice  of  the  lien  on  the  part 
of  the  purchaser. 225     There  is,  however,  apparently,  no   direct 

«24  Atkinson  v.  James,  96  Ala.  214,  that  it  was  grown  on  premises  de- 
10  So.  846;  Aderhold  v.  Blumen-  mised  by  another  to  the  same  ten- 
thai,  95  Ala.  66,  10  So.  230;  Kelly  v.  ant.  King  v.  Rowlett,  120  Mo.  App. 
Eyster,  102  Ala.  325,  14  So.  657;  120,  96  S.  W.  493. 
Scott  V.  Renfro,  106  Ala.  611,  14  So.  225  Manasses  v.  Dent,  89  Ala.  565, 
556;  Bush  v.  Willis,  130  Ala.  395,  30  8  So.  108;  Aderhold  t.  Blumenthal, 
So.  443;  Foxworth  v.  Brown,  114  Ala.  95  Ala.  66,  10  So.  230;  Kelly  v.  Eys- 
299,  21  So.  413;  Sloan  v.  Hudson,  119  ter,  102  Ala.  325,  14  So.  657;  Smith 
Ala.  27,  24  So.  458;  Maelzer  v.  Swan,  v.  Meyer,  25  Ark.  609;  Judge  v.  Cur- 
75  Kan.  496,  89  Pac.  1037;  Smith  v.  tis,  72  Ark.  132,  78  S.  W.  746;  Watt 
Meyer,  25  Ark.  609;  Judge  v.  Curtis,  v.  Scof.eld,  76  111.  261;  Prettyman 
72  Ark.  132,  78  S.  W.  746;  Watt  v.  v.  Unland,  77  111.  206;  Dawson  v. 
Scofield,  76  111.  261;  Prettyman  v.  Coffey,  48  Mo.  App.  109;  Williams  v. 
Unland,  77  111.  206;  Harvey  v.  Hamp-  De  Lisle  Store  Co.,  104  Mo.  App.  567, 
ton,  108  111.  App.  501;  Stadel  t.  Aik-  79  S.  W.  487;  Lehman  v.  Stone  (Tex. 
Ins.  65  Kan.  82.  68  Pac.  1088.  App.)    16   S.   W.   784. 

In  Missouri  the  statute  (Rev.  St.  In  Wilson  v.  Stewart,  69  Ala.  302, 
1899,  §  4123)  expressly  declares  it  was  decided  that  the  fact  that  a 
that  a  purchaser  of  any  crop  if  he  purchaser  had  notice  of  the  exis- 
"has  knowledge  of  the  fact  that  such  fence  of  a  claim  for  rent  which  had 
crop  wa?!  grown  on  demised  prem-  been  satisfied  did  not  tend  to  charge 
ises"  shall  be  liable  for  the  value  him  with  notice  of  a  lien  for  ad- 
thereof.  See  Toney  v.  Goodley,  57  vances.  Since  notice  of  the  claim 
Mo.  App.  235;  Matthews  v.  Nation,  for  rent  necessarily  involves  notice 
69  Mo.  App.  327;  Williams  v.  De  of  the  existence  of  the  relation  of 
Lisle  Store  Co.,  104  Mo.  App.  567,  79  tenancy,  this  decision  seems  in  ef- 
S.  W.  487.  A  purchaser  has  been  feet  to  be  that  a  purchaser  of  crops 
decided  to  be  liable  under  this  stat-  grown  on  premises  which  he  knows 
ute  although  he  did  not  know  that  to  be  held  under  a  lease  is  not 
the  crop  was  grown  on  the  premises  charged  with  notice  of  a  lien  for 
demised    by    plaintiff,    he    thinking   advances.     A    different    \rlew    la    as- 


1930  LIENS  IN  FAVOR  OF  LANDLORD.  §321 

decision  that  actual  knowledge  of  the  tenancy  is  necessary,  and 
there  are  occasional  statements  to  the  effect  that  one  purchasing 
a  crop  or  part  of  a  crop  on  particular  land,  which  was  grown 
thereon,  is  bound  to  inquire  as  to  the  nature  of  the  right  by 
which  the  person  disposing  of  the  crop  is  in  possession  of  the 
Iand.226  The  mere  fact,  however,  that  the  purchaser  of  chat- 
tels, or  produce  of  any  character,  knows  that  the  vendor  holds 
certain  land  as  tenant  of  another,  does  not,  it  has  been  held, 
charge  him  with  notice  that  such  chattels  or  produce  came  from 
that  land,  so  as  to  enable  the  landlord  to  assert  the  lien  as  against 
him.227 

The  purchaser's  duty  of  inquiry  as  to  the  satisfaction  of  all 
claims  for  rent  or  advances  is  not  satisfied,  it  has  been  decided, 
by  the  fact  that  he  has  received  assurances  from  the  tenant,  his 
vendor,  in  this  regard,228  and  the  same  view  has  been  asserted 
v/ith  reference  to  statements  by  the  tenant  as  to  his  ownership 
of  the  land  in  fee.22» 

One  who  purchases  property  which  is  subject  to  the  lien,  pend- 
ing a  suit  to  foreclose  the  lien,  has  been  regarded  as  charged  with 
notice  of  the  lien,23o  as  has,  apparently,  one  who  purchases  the 
crop  so  subject  when  its  possession  is  actually  in  the   landlord.^^^ 

The  burden  of  showing  notice  to  the  purchasers  of  the  ex- 
istence of  the  lien  is  upon  the  landlord. ^^2 

(c)  Purchasers  in  ordinary  course  of  business.  The  rule  that 
a  purchaser  vv^ith  notice  of  the  lien,  or  of  the  facts  on  which  the 
lien  is  based,  takes  subject  to  the  lien,  is  subject  to  an  exception, 
according  to  a  number  of  cases,  if  the  article  sold  was  kept  for 

serted  in  the  later  cases  of  Kelly  v.  Ala.  540,  10  So.  131;  Noe  v.  Layton, 

Eyster,  102  Ala.  325,  14  So.  657;   At-  69  Ark.  551,  64  S.  W.   880;    Pape  v. 

kinson  t.  James,  96  Ala.  214,  10  So.  Steward,  69  Ark.  306,  63  S.  W.  47; 

846.  Williams  y.  De  Lisle  Store  Co.,  104 

226Waite  V.   Corbin,  109  Ala.   154,  Mo.  App.  567,  79  S.  W.  487. 

19  So.  505;   Bush  v.  Willis,  130  Ala.  220  Bush  v.  Willis,  130  Ala.  395,  30 

395,  30  So.  443;   Scully  v.  Porter,  57  So.  443;    Manasses  v.  Dent,  89   Ala. 

Kan.  322,  46  Pac.  313.     See  Mangum  565,  8  So.  108. 

V.  Stadel,  76  Kan.  764,  92  Pac.  1093.  230  York   y.    Carlisle,   19   Tex.   Civ. 

227  Toney  v.  Goodley,  57  Mo.  App.  App.  269,  46  S.  W.  257. 

235;     Castleman   v.    Harris,    86    Mo.  231  Prownell    v.    Twyman,    68    111. 

App.  270.  App.  67. 

22«  Waite  V.   Corbin,   109  Ala.  154,  2?.2  Brownell    v.    Twyman,    68    IK 

19   So.  505-   Weil  v.  McWhorter.   94  App.  67. 


.  321  STATUTORY  LIENS.  1931 

sale  on  the  leased  premises  and  was  sold  in  the  ordinary  course 
of  business.233  Otherwise  no  business  involving  the  keeping  for 
sale  of  articles  of  merchandise  could  be  successfully  conducted 
on  the  leased  premises.  In  one  state  the  statute  expressly  pro- 
vides that  such  sales  shall  be  free  from  the  lien.234 

The  transfer  by  a  tenant,  conducting  a  mercantile  business, 
of  a  part  or  the  whole  of  his  stock  in  trade,  in  payment  of  a  debt 
or  debts,  is  not  a  sale  in  the  ordinary  course  of  business,  so  as 
to  be  within  this  exception  to  the  general  rule.^ss  Nor  is  a  sale 
of  the  tenant's  whole  stock  in  trade,  whether  en  masse,^^''  or  m 
large  quantities  to  different  persons,  for  the  purpose  of  retiring 
from  business,237  within  the  exception.  The  sale  of  crops  raised 
on  the  leased  premises  does  not  come  within  this  exception,  they 
not  being  kept  for  sale."38 

(3)  Purchasers  without  notice— (a)  Ordinarily  take  free 
from  lien.  In  a  number  of  states  it  has  been  decided,  on  a  con- 
sideration of  the  purpose  and  language  of  the  statute,  that  the 
lien  is  effective  as  against  a  purchaser  of  the  crops  or  other  chat- 
tels, even  though  he  is  without  notice  of  the  lien,  either  actual 
or   constructive.239     In   other   states   the   ordinary  view  that   a 

«3  Fowler  t.  Rapley,  82  U.  S.   (15    S.  W.  202;  Id..  44  Tex.  Civ.  App.  177. 
Wall  )  328,  21  Law.  Ed.  35;  Beall  t.    105  S.  W.  1129. 

White,  94  U.  S.  382,  2^  Law.  Ed.  173;  "s  Holden  v.  Cox.  60  Iowa.  449,  15 
Weil  V.  McWhorter,  94  Ala.  540. 10  So.   N.  W.  269. 

131-  McKleroy  v.  Cantey,  95  Ala.  239  Kennard  v.  Harvey,  80  Ind.  37; 
295'  11  So  258;  Andrews  Mfg.  Co.  v.  Shelby  v.  Moore,  22  Ind.  App.  371, 
Porter  112  Ala.  381,  20  So.  475;  53  N.  E.  842;  Campbell  v.  Bowen.  22 
Grant  V.Whitwell,  9  Iowa,  152;  Rich-  Ind.  App.  562,  54  N.  E.  409;  Rich- 
ardson V.  Peterson,  58  Iowa,  724,  13  ardson  v.  Peterson,  58  Iowa,  724,  13 
N  W  63-  Thompson  t.  Anderson.  86  N.  W.  63;  Blake  v.  Counselman,  95 
Iowa,'  703,   53  N.  W.  418.  Iowa.   219,  63  N.  W.  679;   Frorer  v. 

234  Texas  Rev.  St.  1895.  art.  3238.  Hammes,  99  Iowa.  48,  68  N.  W.  564; 
See  Marsalis  v.  Pitman,  68  Tex.  Hays  v.  Berry,  104  Iowa.  455,  73  N. 
R94    ^  S    W    404  W.  1028;  Union  Water  Power  Co.  v. 

^^5  Weil  v:  McWhorter.  94  Ala.  540,  Chabot,  93  Me.  339,  45  Atl.  30;  Bel- 
10  So  131  See  Marsalis  v.  Pitman,  cher  v.  Grlmsley,  88  N.  C.  88,  43 
68  Tex   604    5  S.  W.  404.  Am.  Rep.  732;    Newman  v.  Bank  of 

230  Fowler  v.  Rapley,  82  U.  S.   (15    Greenville,  66  Miss.   323.  5   So.  753; 
Wall)  3''8,  21  Law.  Ed.  35;  Marsalis   Eason  v.   Johnson,   69  Miss.   371.  12 
V  Pitman.  68  Tex.  624.  5  S.  W.  404.      So.  446;    Warren  v.   Jones.  70  M)ss^ 
'237  Freeman  v.  Collier  Racket  Co.,    202,   14   So.    25;    Ball    v.    Sledge.    82 
100  Tex   475,  18  Tex.  Ct.  Rep.  98,  101   Miss.   749.   35   So.    447,   100   Am.  St. 


1932  LIENS  IN  FAVOR  OF  LANDLORD.  §321 

bona  fide  purchaser  is  to  be  protected  has  been  adopted  in  this 
eonnection.2'10 

(b)  Pnrchafiers  not  for  value.  Even  in  jurisdictions  where  a 
hona  fide  purchaser  ordinarily  takes  free  from  the  lien,  he  does 
not  do  so  if  he  is  not  a  purchaser  for  value,  that  is,  if  the  trans- 
fer of  the  title  is  based  on  merely  a  "good"  as  distinguished 
from  a  "valuable"  consideration.^^!  He  is  not  a  lona  fide  pur- 
chaser for  value  if  he  pays  the  consideration  after  receiving  no- 
tice of  the  lien.242  it  is  in  accordance  with  the  above  principle 
that  one  to  whom  the  tenant  makes  an  assis^nment  for  the  bene- 
fit of  creditors  takes  subject  to  the  lien  in  favor  of  the  land- 
lord.243  Qj^e  tQ  whom  the  tenant  delivers  the  property  merely 
for  a  temporarj'  purpose  is  obviously,  in  the  ordinary  case,  not  a 
purchaser  for  value.^^'* 

(4)  Mortgagees.  The  landlord's  lien  upon  the  crops  on  the 
premises  takes  priority  over  a  mortgage  on  the  crops,  made  after 
they  come  into  existence,--*^  provided,  in  some  jurisdictions,  the 

Rep.  654;  Ricliardson  v.  Blakemore,  may    enforce    the    lien    as    against 

79  Tenn.   (11  Lea  )   290;   Phillips  v.  Buch    a    purchaser.     This    does    not 

Maxwell,    60    Tenn.    (1    Baxt.)    25;  appear  to  accord  with  the  pre\'ious 

Davis  V.  Wilson,  86  Tenn.  519,  8  S.  case  of  Hadden  v.  Knickerbocker,  70 

W.  151;   Mathews  t.  Burke,  32  Tex.  111.  677,  22  Am.  Rep.  80. 

419;  American  Cotton  Co.  V.  Phillips,  2*1  Weil     v.    McWhorter,     94    Ala. 

31  Tex.  Civ.  App.  79,  71  S.  W.  220.  540,  10  So.  131;  Scott  v.  Renfro,  106 

240  Bledsoe    v.    Mitchell,    52    Ark.  Ala.   611,   14   So.   556. 

158,  12  S.  W.  390;   Puckett  v.  Reed,  242  pape  v.   Steward,   69  Ark.   306, 

31   Ark.    131;    Hunter    v.    Matthews,  63  S.  W.  47;  Matthews  v.  Nation,  69 

67  Ark.  362,  55  S.  W.  144;   Seaife  v.  Igo.  App.   327;    Darby  v.   Jorndt,  85 

Stovall,    67    Ala.    237;    Foxworth    v.  Mo.  App.  274. 

Brown,    114    Ala.    299,    24    So.    413;  2*8  McKleroy    v.    Cantey,    95    Ala. 

Thornton  v.  Carver,  80  Ga.  397,  6  S.  295,  11  So.  258;  Fox  r.  Jonea,  26  Fla. 

E.  915;  Lancaster  r.  Whiteside,  108  276,  8  So.  449;   O'Hara  v.  Jones,  46 

Ga.  801,  33  S.  B.  995;  Stone  v.  Bohm,  111.  288;    Retry  v.   Randolph,  85  Ky. 

79  Ky.  141;  Monarch  v.  Dean,  3  Ky.  851,  3  S.  W.  420;   Loth  v.  Carty,  85 

Law  Rep.   757;    Scully  v.   Porter,   3  Ky.  591,  4  S.  W.  314;  Paine  v.  Aber- 

Kan.  App.  493,  43  Pac.  824;  Toney  v.  deeu  Hotel  Co.,  60  Miss.  360;  Rosen- 

Goodley,   57  Mo.   App.  235.     In  Fin-  berg  v.  Shaper,  51  Tex.  134. 

ney  v.  Harding,  136  111.  573,  27  N.  E.  2*4  See    Maddox    v.    Maddox,     146 

289,    12    L.    R.    A.    605,    29    Am.    St.  Ala.  460,  41  So.  426. 

Rep.  834,  while  It  Is  decided  that  the  ats  Dowling  v.   Wall,  114   Ala.   58, 

landlord    has    no    right    of    action  21  So.  948;  Leslie  t.  Hinson,  83  Ala. 

against    an    innocent   purchaser   for  266,  3  So.  443;    Beall  v.  James  Fol- 

Interference  with   his   security    (see  mar  Sons  &  Co.,  122  Ala.  414,  26  So. 

post,  §   321   m),   it   is  said   that  he  1;     Smith   v.    Meyer,    25    Ark.    609; 


STATUTORY  LIENS.  1933 

mortgagee  is  chareeable  with  notice  of  the  lien,2^«  and,  in  others, 
even  thou-h  he  has  no  notiee.^^^  The  lien  will  also,  it  seems,  take 
priority  over  a  mortgage  made  before  the  planting  of  the  crops 
conceding  the  validity  of  such  a  mortgage  on  property  not  yet 
in  existence  248  Otherwise,  the  landlord's  lien  might  be  exclude.! 
by  the  making  of  a  collusive  mortgage  by  the  tenant  upon  the 
crop  about  to  be  planted  by  him. 

If  the  tenant  occupied,  previous  to  the  creation  of  the  tenancy, 
and  at  the  time  at  which  he  made  the  mortgage  on  the  crop  the 
position  of  owner  in  fee  of  the  land,  one  taking  a  mortgage  from 
him  upon  the  crop  then  erowing,  for  a  valuable  consideration,  is 
entitled  to  claim  priority  over  the  landlord's  lien  Jn  favor  of  an- 
other to  whom  the  mortgagor  subsequently  conveys  the  fee, 
taking  back  a  lease.^^^  But  the  case  is  different,  it  seems,  as  re- 
gards  crops  planted  after  the  commencement  of  the  tenancy,  and 
as  to  those  a  mortgage  or  other  lien,  created  by  the  tenant  while 
he  was  owner  in  fee,  would  be  inferior  to  the  lien  of  the  land- 
loi'd.250 

It  has  been  decided  that  the  fact  that  the  landlord  had  pre- 
viously been  the  mortgagee  of  the  land,  the  mortgagor  having, 
after  default  in  the  conditions  of  the  mortgage,  verbally  attorned 
to  him  as  tenant,  and  that  one  to  whom  such  mortgagor  subse- 
quently mortgaged  the  crop  had  no  notice  of  the  creation  of  the 
relation  of  tenancy,  and  could  not  have  obtained  such  notice 
from  the  records,  did  not  give  the  mortgage  on  the.  crop  priority 
over  the  landlord's  lien.^^i 

It  has  been  decided  that  when  a  contract  for  the  sale  of  land 

Watson    V     Johnson,    33    Ark.    737;  2*8  Hamilton  T.  Maas.  77  Ala.  283; 

Lambeth  V.  Ponder.  33  Ark.  43;   Mey-  Brewer  v.   Chappell,   101  N.  C.  251. 

erv.  Bloom.  37  Ark.  43;    Salina  State  7  S.  E.  670. 

Bank  V    Burr.  7  Kan.  App.  197.  52  249  Mecklin    v.    Deming.    HI    Ala. 

Pac    704;    Beckwlth  v.  Bent.  49  Ky.  159.  20  So.  507;    Shows  v.  Brantley. 

MOB   Mon)  95-    Holt  v.  Colyer.  71  127   Ala.    352.   28    So.    716;    Luce   r 

I       A.n    280      Lane  v    Pollard.  88    Moorehead,  73  Iowa.  498.   35   N.  W. 
MO.   APP.   280,    Lane  v.   Fol  ^^^    ^  ^^    ^^    ^^^    ^^^^  Wilczinskl 

Mo.  App.  32b.  ^p  g^   .^3 

246  See  Manasses  t.  Dent.  89  Ala.  v.  i^nn.  ^o  ♦„„  iaq  m  P 
565  8  SO.  108;  Atkinson  v.  James.  -0  Spruill  v.  Arnngton.  109  N.  C. 
96  Ala  214.  10  So.  846;  Smith  v.  192.  13  S.  E.  779.  ^^^  ^^  ^  „. 
,,  o.  Arir  Rn9  2BiFord  V.  Green,  121  N.  C.  70. 
Meyer.  25  Ark.  60y.  „    „    .,00 

247  See    Stone    v.    Bohm,    79    Ky.  28  S.  E.   132. 
141,  and  ante,  note  239. 


1934  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

provides  that,  if  the  vendee  defaults  in  payment  of  the  pnrohase 
price,  he  shall  pay  rent  as  tenant,  a  lien  for  the  rent  arises  as  in 
other  cases,  and  takes  priority  over  a  subsequent  mortgage  on  the 
property  subject  to  the  lien,  and  that  it  is  immaterial  that  the 
mortgagee,  in  making  the  advances  secured  by  the  mortgage, 
acted  upon  the  strength  of  the  contract  of  sale,252  since  this  does 
not  justify  dealing  with  the  vendee  as  owner.  Nor  can  he  claim 
priority  on  the  ground  that  a  conveyance  by  the  original  vendor 
to  the  person  asserting  the  lien  was  not  recorded,  since  this  did 
not  affect  such  mortgagee.^^s 

While  the  landlord's  lien  on  chattels  kept  on  the  premises  is, 
as  in  the  case  of  his  lien  on  crops,  prior  to  a  mortgage  made 
after  the  chattels  are  brought  on  the  premises, ^^^  it  is  subsequent 
to  a  mortgage  on  the  chattels  made  before  they  are  brought  on 
the  premises.2^5  A  different  rule  would  render  a  mortgage  on 
chattels  a  most  precarious  form  of  security,  by  reason  of  the  pos- 
sibility that  the  chattels  might  be  placed  upon  leased  premises. 
Likewise,  the  mortgage,  if  made  prior  to  the  tenancy,  is  superior 
to  the  landlord's  lien,  even  though  the  chattels  were,  at  the  time 
of  making  the  mortgage,  upon  the  premises,  of  which  the  mort- 
gagor, or  one  to  whom  he  sold  the  chattels,  subsequently  took  a 
lease. ^^^ 

A  mortgage  on  chattels  placed  on  the  premises,  made  during 

2B2  Abernathy  v.  Green  (Miss.)   11  13    Ky.    Law    Rep.    336;    Arnold    v. 

So.    186.  Hewitt,    128    Iowa,    671,    104    N.    W. 

253  Bacon  v.  Howell,  60  Miss.  362.  843       (purchase-money      mortgage). 

254  Beall  V.  White,  94  U.  S.  382,  24  But  in  Hechtman  v.  Sharp,  10  D.  C. 
Law.  Ed.  173;  Shields  v.  Atkinson,  (3  MacArthur)  90,  it  was  decided 
67  Ala.  244;  Beall  v.  James  Folmar  that  the  landlord's  lien  is  in  such 
Sons  &  Co.,  122  Ala.  414,  26  So.  1;  case  let  in  if  a  new  note  is  given  to 
Kyle  V.  Swem,  99  Ala.  573,  12  So.  the  mortgagee  and  another  mort- 
410;  Brody  v.  Cohen,  106  Iowa,  309,  gage  given  to   secure   it. 

76  N.  W.  682;  Garner  v.  Cutting,  32  As  to  the  priority  of  the  land- 
Iowa,  547;  Salina  State  Bank  v.  lord's  lien  for  rent  on  a  building  un- 
Burr,  7  Kan.  App.  197,  52  Pac.  704;  der  the  Maine  law,  over  a  mortgage 
English  v.  Duncan,  7  Ky.  (14  Bush)  on  the  building,  see  Union  Water- 
377;  Cecil  v.  Gunther,  9  Ky.  Law  Power  Co.  v.  Chabot,  93  Me.  339,  45 
Rep.  576.  Atl.  30. 

255  Jarchow  &  Sons  v.  Pickens,  51  2''fi  Rand  t.  Barrett,  66   Iowa.  731, 
Iowa,  381,  1  N.  W.  598;  Rand  v.  Bar-  27  N.  W.  530;  Perry  v.  Waggoner,  68 
rett,    66    Iowa,    731,    24    N.   W.    530;  Iowa,   403,   27   N.   W.   292. 
Wright  V.  Rothschild's  Sons  &  Co., 


e  321  STATUTORY  LIENS.  1935 

the  terra  of  a  prior  lease,  has  been  held  to  take  precedence  of  a 
lien  for  rent  accruing  under  a  renewal  lease.^^T  It  has,  on  the 
other  hand,  been  decided  that,  though  a  ne^v  lease,  made  during 
the  term  of  a  former  lease  between  the  same  parties,  effected  a 
surrender  of  the  old  lease  by  operation  of  law,^^^  the  lien  for  rent 
accruing  under  the  new  lease  took  priority  over  a  mortgage  on 
the  tenant's  effects  made  before  the  new  lease.259 

In  one  state,  it  seems,  the  landlord's  lien  is  entitled  to  priority 
even  over  a  mortgage  made  before  the  placing  of  the  chattels 
upon  the  demised  premises,  in  case  the  mortgage  is  not  recorded 
as  provided  by  law.^^o  And  in  another  state  the  landlord  has 
been  regarded  as  entitled  to  a  lien  upon  chattels  sold  to  the  ten- 
ant and  placed  by  him  on  the  premises,  though  the  title  was  re- 
tained by  the  vendor,  the  statute  making  such  reservation  of 
title  invalid  unless  recorded.^^i 

It  has  been  decided  that,  if  the  landlord  purcha-ses  the  ten- 
ant's crop,  the  lien  is  merged,  but  he  has,  as  against  a  prior  mort- 
gagee, an  absolute  title  to  an  undivided  interest  in  the  crop,  equal 
to  the  amount  of  his  lien  therefor,  though  as  to  the  balance  he  is 
merely  a  purchaser  whose  rights  are  subsequent  to  those  of  the 
mortgagee. ^^^ 

(5)  Persons  having  liens  for  supplies  or  services.  The  su- 
periority of  the  landlord's  lien  over  liens  created,  or  arising  by 
operation  of  law,  in  favor  of  other  persons  on  account  of  supplies 
furnished  by  the  latter  to  the  tenant,  has  been  recognized  in  sev- 
eral cases.263  But  the  lien  of  the  landlord  on  a  cotton  crop  has, 
in  one  state,  been  regarded  as  inferior  to  a  lien  in  favor  of  an- 
other for  the  ginning  and  baling  of  the  cotton,  such  service  being 

sBT  Lyons   V.   Deppen,   90   Ky.   305,  bonic  Acid  Mfg.  Co.  v.  Lewis,  32  Tex. 

14  S.  W.  279;   Thorpe  v.  Fowler,  57  Civ.  App.  481,  75  S.  W.  47. 

Iowa    541,  11  N.   W.   3;    Gasnick  v.  sei  Cohen  v.   Candler,  79   Ga.    427, 

Steffensen.  112  Iowa,  688,  84  N.  V/.  7  S.  E.  160;   Gartrell  v.  Clay,  81  Ga. 

945              '  327,   7   S.   E.   161. 

158  See  ante,  §  190  b   (1).  262  Titeworth    v.     Frauenthal.    52 

268  Rollins    V.    Proctor,    56    Iowa,  Ark.  254,  12  S.  W.  498. 

826    9  N.  W.  235.  ^®'  Lake  v.   Gaines   &  Co..  75  Ala. 

260  See   Berkey   &    Gay   Furniture  143;    Brown  v.  Hamil,  76  Ala.  506; 

Co.  V.  Sherman  Hotel  Co.,   81    Tex.  Smith.  Son  &  Bro.  t.  Fouche.  55  Ga. 

135,  16  S.  W.   807.  26  Am.  St.  Rep.  120;  Goodwin  v.  Mitchell   (Miss.)   38 

783-    Austin  v.  Welch,  31  Tex.  Civ.  So.  657;  Sprnill  v.  Arrington,  109  N. 

App.  526,  72  S.  W.  881;  Liquid  Car-  C.  192,  13  S.  E.  779. 


1936  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

for  the  benefit  of  all  parties. -^^  The  lien  of  a  warehouseman  for 
advances,  on  cotton  stored  with  him  by  the  tenant,  made  by  him 
without  notice  of  any  claim  for  rent,  has  been  regarded  as  supe- 
rior to  the  lien  for  rent.^^s  But  a  lien  for  warehouse  charges 
has  been  held  to  be  inferior  to  the  landlord's  lien,  the  crop  having 
been  removed  to  the  warehouse  vvathout  the  landlord's  consent.^^o 

In  one  state  the  statute  expressly  makes  the  landlord's  lien  for 
supplies  inferior  to  that  of  laborers  for  services,^^^  and  in  an- 
other the  statute  provides  for  priority  in  favor  of  the  lien  for 
services,  provided  the  landlord  indorses  his  consent  on  the  con- 
tract of  employment.268  And  where  the  statute  expressly  pro- 
vides that  the  lien  of  a  laborer  on  the  crop  shall  be  prior  to  all 
other  liens,  the  laborer's  lien  is  necessarily  paramount  to  that 
of  the  landlord.2C9  But  a  mere  agreement  by  the  tenant  with  a 
laborer  that  the  latter  shall  have  the  crop  or  a  part  of  the  crop 
cannot  displace  the  landlord's  lien.^'^'o 

(6)  Attachment  and  execution  creditors.  The  lien  of  the 
landlord  is  not  displaced  by  a  levy  upon  the  property  by  a  cred- 
itor of  the  tenant  under  a  writ  of  attachment.^^i  Nor  will  the 
recovery  of  a  judgment  against  the  tenant  by  a  third  person  and 
the  issuance  of  execution  thereunder  affect  the  lien.272 

264  Duncan  v.  Jayne,  76  Miss.  133,  163;  Groesbeck  v.  Evans,  40  Tex. 
23  So.  392.  And  see  Strauss  v.  Ba-  Civ.  App.  216,  83  S.  W.  430;  Id.,  13 
ley,   58   Miss.   131.  Tex.  Ct.  Rep.  659,  88  S.  W.  889. 

265  Clark  V.  Dobbins,  52  Ga.  656.  272  Sevier   v.    Shaw,    25    Ark.    417; 

266  Brown  v.  Noel,  21  Ky.  Law  Gibson  v.  Gautier,  12  D.  C.  (1  Mac- 
Rep.   648,  52  S.  W.  849.  key)  35;  Colclough  v.  Mathis,  79  Ga. 

267  Georgia   Code   1895,   §    2800.  394,  4  S.  E.  762;    Lightner  v.  Bran- 

268  Arkansas,  Kirby's  Dig.  St.  1904,  ron,  99  Ga.  606,  27  S.  E.  703;  Miles 
g  5034.  v.    James,    36    111.    399;    Travers    v. 

269  National  Lumber  Co.  v.  Bown-  Cook,  42  111.  App.  580;  Wetsel  v. 
an,  77  Iowa,  706,  42  N.  W.  557;  Mayers,  91  III.  497;  Atkins  v.  Wom- 
gtuart  T.  Twining,  112  Iowa,  154,  83  eldorf,  53  Iowa,  150,  4  N.  W.  905; 
N.  "W.  891.  Okolona  Say.  Inst.  v.  Trice  &  Co.,  60 

270  Alston  v.  Wilson,  64  Ga.  482;  Miss.  262;  Selecman  t.  Kinnard,  55 
Rousey  v.  Mattox,  111  Ga.  883,  36  S.  Mo.  App.  635;  Ghio  v.  Shutt,  78  Tex. 
E.  925.  375,   14  S.  W.   860,  22   Am.  St.  Rep. 

271  Smith  v.  Huddleston,  103  Ala  56;  Irion  v.  Bexar  County,  26  Tex. 
223,  15  So.  521;  Sevier  v.  Shaw,  25  Civ.  App.  527,  63  S.  W.  550.  But  see 
Ark.  417;  Hopkins  v.  Pedrick,  7?  Governor  v.  Davis,  20  Ala.  366,  56 
Ga.  706;   Mead  v.  Thompson,  78  111.  Am.  Dec.  200. 

62;    Sanders    t.    Ohlhausen,    51   Mo. 


§  321  STATUTORY  LIENS.  1937 

(7)  Marshaling  of  securities.  The  doctrine  of  "marshaling 
securities"  has  in  one  case  been  applied  in  favor  of  a  creditor 
of  the  tenant  having  a  lien  on  the  tenant's  crop,  the  landlord  be- 
ing required  first  to  exhaust  the  subtenant's  crop,  on  which  he 
alone  had  a  lien,  before  resorting  to  the  tenant's  crop.^'^^  gut 
this  doctrine  cannot  be  applied  in  favor  of  a  creditor  of  a  sub- 
tenant having  a  lien  on  the  latter's  crop,  it  being  applicable  only 
as  between  creditors  of  the  same  debtor.-'^^  Nor  will  it  be  ap- 
plied if  by  possibility  it  may  enure  to  the  disadvantage  of  the 
creditor  having  the  security  of  two  funds,  and  consequently  the 
landlord  cannot  be  compelled  to  resort  to  the  ungathered  crop 
of  the  tenant,  leaving  to  the  other  creditor  the  gathered  crop, 
especially  when  the  sufficiency  of  the  former  crop  to  satisfy  the 
landlord's  claim  is  doubtful.-'''^ 

A  creditor  of  the  tenant  who  has  a  subsequent  lien  cannot  de- 
mand that  the  landlord  resort  to  the  personal  liability  of  a  third 
person  who  has  assumed  payment  of  the  rent.-'^^  And  a  pur- 
chaser of  the  crop  cannot  demand  that  a  payment  made  by  the 
tenant,  with  no  direction  as  to  its  application,  be  applied  on  the 
claim  for  rent  or  advances,  so  as  to  relieve  the  crop  from  the  lien 
therefor.2T7  Neither  the  tenant,278  nor  a  purchaser  from  the 
tenant,2'^9  can  demand  that  the  lien  be  enforced  against  one  part 
of  the  property  rather  than  another. 

The  landlord  is  under  no  obligation,  as  regards  a  junior  in- 
cumbrancer, to  see  that  the  property  on  which  their  liens  exist, 
or  the  proceeds  of  the  sale  thereof,  are  husbanded  so  as  to  cover 
both  debts. 2^*^     But  if  the  landlord  takes  measures  to  enforce  his 

273  Walhoefer  v.  Hobgood,  19  Tex.  erty  subject  to  the  lien  demand  that 
CiT.  App.  629,  48  S.  W.  32.  the  landlord  apply  a  payment  made 

274  Robinson  v.  Lehman,  Durr  &  by  the  tenant  upon  account  of  the 
Co.,   72   Ala.    401.  particular   claim    for  which   a   land- 

275  Wilkes  V.  Adler,  68  Tex.  689,  5  lord's  lien  is  asserted.  Cadenhead 
S.  W.  497.  See  Dermidy  v.  Inter-  v.  Rogers  &  Bro.,  16  Tex.  Ct.  Rep. 
state  Grain  Co.  (Iowa)  86  N.  W.  30;    837,  96  S.  W.  952. 

AVilson  &  Son  v.  Curry,  149  Ala.  368,  278  Citizens'   Sav.  Bank  of  Clin  v. 

42  So.  753.  Wood,  134  Iowa,  232,  111  N.  W.  929. 

276  Block   V.  Latham,  63  Tex.  414.  2-9  Couch    v.    Davidson,    109    Ala. 

277  Soluble  Pac.  Guano  Co.  v.  Har-  313,  19   So.   507;    Andrews   Mfg.   Co. 
ris,  78  Ga.  20;  Hollingsworth  v.  Hill,  v.  Porter,  112  Ala.  381,  20  So.  475. 
67    Miss.    73,   10    So.    450.     Nor   can  2so  Hammond   v.   Harper,   39  Ark. 
one  who  has  levied  on  certain  prop-  248. 

L.  and  Ten.  122. 


1938  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

lien,  he  is  bound  to  see  that  the  property  is  handled  and  realized 
on  in  a  proper  manner.-si 

g.  Duration  of  the  lien.  The  statutes  of  a  number  of  states 
contain  express  provisions  as  to  the  duration  of  the  lien,  usually 
to  the  effect  that  the  lien  shall  continue  a  named  period  after  the 
expiration  of  the  term,  or,  in  the  ease  of  a  lien  for  rent,  after  the 
rent  becomes  due.^ss 

It  has  been  decided  that  the  lien  is  kept  alive,  in  spite  of  the 
expiration  of  the  time  named  in  the  statute,  if  a  proceeding 
to  foreclose  the  lien  is  instituted  within  that  time. 283  But  else- 
where the  commencement  of  an  action  against  the  tenant  alone 
to  enforce  the  lien  has  been  held  not  to  preserve  the  lien  for  the 
purpose  of  its  assertion,  after  the  statutory  period,  against  a 
purchaser  of  the  property  from  the  tenant.-S'* 

281  Taylor   v.   Felder,    5    Tex.    Civ.  Law   Rep.    229;    Brown    v.    Noel,    21 

App.  417,  23  S.  W.  480,  24  S.  W.  313.  Ky.    Law     Rep.    648,    52    S.    W.    849. 

2!i2  Arizona  Rev.  St.  1901,  §  2695  Maine  Rev.  St.  1903,  c.  93,  §  44  (six 
(six  months  after  expiration  ot  months  after  rent  is  due  as  against 
term);  Arkansas,  Kirby's  Dig.  St.  transferee) ;  Mississippi  Code  1906,  § 
1904,  §  5032  (six  months  after  rem  2833  (one  year,  for  supplies  fur- 
is  due).  See  Valentine  v.  Hamlett,  nished) ;  Missouri  Rev.  St.  1899,  § 
35  Ark.  538;  Anderson  &  Co.  v.  4115  (eight  months  after  rent  is 
Bowles,  44  Ark.  108.  District  of  Col-  due) ;  Tennessee,  Shannon's  Code 
umhia  Code  1901,  §  1229  (three  1896,  §  5299  (three  months  after 
months  after  rent  is  due  and  until  rent  is  due) ;  Texas  Rev.  St.  1895, 
termination  of  action  for  rent  art.  3251  (lien  for  rent  of  re?^idence 
brought  within  said  three  months) ;  or  other  building  during  tenant's 
Illinois,  Hurd's  Rev.  St.  1905,  c.  80.  occupation  of  premises  and  one 
§  31  (six  months  after  expiration  of  month  thereafter).  See  Jenkins  v. 
term);  Iowa  Code  1897,  §  2992  (one  Patton  (Tex.  Civ.  App.)  21  S.  W. 
year  after  rent  is  due);  Kentucky  693;  Randall  v.  Rosenthal  (Tex.  Civ. 
St.  1903,  §§  2316,  2317,  2323  (lien  for  App.)  27  S.  W.  906.  Washington, 
rent,  one  hundred  and  twenty  days  Ball.  Ann.  Codes  §  5959  (semble, 
after  rent  is  due,  and  lien  for  ad-  forty  days  after  expiration  of  the 
vances,  one  hundred  and  twenty  year  in  which  rent  accrued,  or  forty 
days  after  the  expiration  of  term,  days  after  expiration  of  term) ; 
In  case  of  open  removal  of  prop-  Utah  Comp.  Laws  1907,  §  1407  (dur- 
erty,  either  lien  endures  only  for  ing  the  tenant's  occupation  of  the 
fifteen  days  thereafter).  See  Retry  premises  and  for  thirty  days  there- 
V.  Randolph,  85  Ky.  351,  3  S.  W.  420;  after). 

Gedge    v.    Shoenberger,    83    Ky.    91;  283  Bourcier     v.     Edmondson,     58 

McNichols  V.   Hopkins,   10  Ky.  L?.w  Tex.    675. 

Rep.  874;  Davis  v.  Ford,  10  Ky.  Ln-W  2R4Niokelson   v.    Negley,   71    Iowa, 

Rep.  241;    Conner  v.  Elliott,  10  Ky.  546.  32  N.  W.  487. 


STATUTORY  LIENS.  1939 

A  proceeding  to  enforce  the  lien  need  not  be  instituted  within 
the  statutory  period,  it  has  been  decided,  if  the  property  is  as- 
signed for  the  benefit  of  creditors  within  that  time,  it  being  the 
duty  of  the  assignee  to  pay  the  landlord's  claim  out  o  the  pro- 
ceeds of  sale,  without  suit.^^^  And  a  like  view  was  taken  when 
the  landlord,  instead  of  asserting  his  lien  in  a  proceeding  brought 
to  enforce  it,  did  so  in  a  replevin  suit  instituted  by  a  third  per- 


son 


It  has  been  decided  that  a  forfeiture  of  the  term  is  within  ^the 
meaning  of  a  statute  giving  a  lien  for  six  months  after  the  ex- 
piration" of  the  term.287 

A  provision  that  tlic  lien  shall  not  continue  more  than  a  named 
number  of  days  after  the  expiration  of  the  term  has  been  held 
to  have  no  application  if,  within  the  time  named,  the  tenant  de- 
livers to  the  landlord  possession  of  the  property  subject  to  the 

1 1  pTi  2S8 

A  lien  to  endure  "as  long  as  the  lessee  shall  occupy  the  leased 
premises,  and  for  thirty  days  thereafter,"  was  held  to  be  lost  if 
proceedings  to  enforce  it  were  not  begun  until  thirty-four  day 
after  the  death  of  the  lessee.^s^     But  ordinarily  the  death  of  the 
tenant  does  not  affect  the  lien.^ao  ^  ,  •     i       +v, 

When  the  statute  provides  for  a  lien  during  a  certain  length 
of  time  after  the  rent  becomes  due,  this  refers  to  the  rent  for 
which  the  lien  is  claimed,  and  in  a  proceeding  to  assert  the  lien 
against  the  property  of  a  subtenant  it  is  immaterial  that  the  rent 
due  under  the  sublease  has  been  overdue  longer  than  the  time 

The  lien  is  not  extinguished  merely  because  the  term  has  come 
to  an  end -292  nor  does  the  removal  from  the  premises  of  the 
things  subiect  to  the  lien  ordinarily  have  this  effect .--.5     if  the 

.85  Loth  V.  Carty.  85  Ky.    591,  4  S.    50   Ala.    30:    Kern   v^  Noble    57   111. 

App.  27;  Wilcox  v.  Alexander   (Tex. 
.'.Edward.  V.   Cottrel,,   4S  Iowa,   Ci.^APP.^  32  ^^^^^  ^  ^^^^^ 

"L  Manhattan  Trust  Co.  ,.  S.ou.   <="'»  «»"  "V°;%»^- ,1"'  '^^  ''■ 
City  £  N.  B.  CO.,  68  Fed.  72.  1032,  7  L.  R.  A    (N^S.l  9„0. 

.I.Mara«ss  v   Ladd.  30  Ky.  Law       ..=  Lomax  y.  Le  Grand  &  Co..  60 
Marduess  y.  ^^^^^   ^    Dayidson,    109 

"1!.         ;    Ine.Erte,  14  Uta.,  Ala.  313.  10  .o.   507.   Fitzgerald  y. 

,„    „        iini  Fowlkcs,   GO  Miss.   270. 

'"11^::^:'^^:  v.  Mom^on.       .».»  see  post,  at  note  364. 


W.  314 


1940  LIENS  IN  FAVOR  OF  LANDLORD.  §321 

■'  * 

lien  could  be  extinguished  by  such  a  removal  by  the  tenant,  it 
would  evidently  be  of  little  value  as  security. 

h.  Extinguishment  of  the  lien  by  pajonent.  The  lien  cannot, 
necessarily,  continue  after  the  payment  of  the  indebtedness  which 
it  secures.  If  the  rent  consists  of  an  agreed  portion  of  the  crops, 
the  delivery  of  such  portion  to  the  landlord  extinguishes  the 
lien,296  and  it  cannot,  it  has  been  decided,  be  revived  by  a  subse- 
quent agreement  that  such  portion  of  the  crops  shall  be  differ- 
ently applied.297  The  lien  is  not  extinguished  by  a  tender,  it 
has  been  held,  unless  this  is  kept  good  and  the  money  paid  into 
court.2^^ 

A  purchaser  of  the  property  subject  cannot  demand  that  pay- 
ments made  by  the  tenant  to  the  landlord  shall  be  applied  to  the 
particular  claims  secured  by  the  landlord's  lien,  so  as  to  relieve 
the  property  therefrom.299  And  the  tenant  cannot  demand  that 
the  mortgagees  of  part  of  the  chattels  subject  to  the  lien,  who  have 
acquired  the  reversion,  shall,  after  selling  under  the  mortgage, 
apply  the  proceeds  on  the  rent  rather  tlian  on  the  mortgage  in- 
debtedness, in  order  to  protect  the  other  chattels  from  sale  under 
the  lien.300 

i.  Relinquishment  or  waiver  of  the  lien — (1)  Express  re- 
linquishment. The  right  to  a  lien  may  be  released  or  waived  in 
express  terms,  at  the  time  of  making  the  lease,  by  provision  to 
that  effect  in  the  instrument  of  lease,  or  otherwise.^^i  It  has 
been  held  that  a  provision  that  the  rent  is  to  become  due  as  the 
crop  is  "matured  and  marketed"  does  not  have  that  effect,  so  as 
to  enable  the  tenant  to  market  the  crop  free  from  the  lien.^^^ 

The  lien  may  be  relinquished  in  favor  of  a  particular  person, 
having,  or  about  to  have,  a  claim  against  the  tenant,  without 
affecting  the  validity  of  the  lien  as  against  other  persons,^^^  ^nd 

206  See  Curtis  v.  Cash,  84  N.  C.  41;  soi  See  Knox  v.  Hunt,  18  Mo.  243. 

Baker  v.  Cotney,  142  Ala.  566,  38  So.  302  Davis    v.    Sparks,    38    111.   App. 

131,  110  Am.  St.  Rep.  50.  166. 

29T  Tinman  v.  McMeekin,  42   S.  C.  303  Fostei*  v.   Napier,  74  Ala.  393; 

311,  20  S.  E.  36.  Stoelker  v.   Wooten,   80  Ala.   610,   2 

298Hamlett    v.    Tallman,    30    Ark.  So.    703;    Napier   v.   Fester,    80   Ala. 

505;  Bloom  v.  McGehee,  38  Ark.  329.  339;   Carter  v.  DuPre,  18   S.  C.   179, 

209  See  ante,  note  277.  44    Am.    Rep.    569;    Saloy   v.    Bloch, 

300  Citizens'  Sav.  Bank  of  Olin  v.  13^^  u.  S.  338,  34  Law.  Bd.   668.     A 

Wood,  134  Iowa,  232,  111  N.  W.  929.  waiver  in  favor  of  a  mortgagee  is 


STATUTORY  LIENS.  1941 

§  321 

^,ch  a  waiver  may  be  conditioned  upon  the  doing  o£  certain  acts 

hTthatTerron3o/  A  relinqnishmcnt  in  favor  of  any  person  .vho 

irmaralances  to  the  tenant  enures  to  the  "of  on 

who  makes    such  advances  on  the  strength  thereof.»»=^    The  re 

toanShment  of  the  lien  in  favor  of  another  person  may  be  to  a 
hnquishmcnt  0  ^^^^  ^^^.^,^^  ^^^^  ^  .o^^ent 

tttl:  tl  eTpTrson    hould  take  the  crop  "less  the  «-*  "  wh.eh 
eonsi  ted  of  a  part  of  the  crop,  involved  a  retention  of  the  hen 
for  r  nt  and  a  relinquishment  of  that  for  advanccs.»o«»» 
'  The  landlord   may'  relinquish  his  lien  as  to  V^:^otmcrov^^ 
other  things  subject  to  the  Hen  without  lo-°=    \-  *°  ^^^  "^^ 
cart'""  and  one  having  a  junior  incumbrance  upon  the  prop 
^rt   'cannot  complain  of  such  V^^^'^^^^'^  --  ^Z 
»,™hraiice  is    as  to  that  part,  given  first  place.         dui    i 
ZTnZl    apparently,  that  the  landlord  may,  1'^/— ;»''°f 
h  s  Hen  on  property  retained  by  the  tenant,  lose  his  right  to  en- 
force the  lien  against  property  sold  to  «-»«'"•;; 

In  the  absence  of  a  statute  requiring  a  waiver  ^"Jl'l^^^;; 
an  oral  waiver,  made  after  the  lease,  m  favor  of  a  particular 

T2r'  Accfp^n^'o^nXTr  ler  security.    The  acceptance  of 
th    tenant's  note  for  the  rent  or  advances  involves  no  waiver  o 
the  W-  unless,  presumably,  this  is  accepted  as  payment  of  the 

not  nece..ari,y  a  waiver  in  .avor  o,   ';!^'-^^^l^ ^ T^,''""''' 

V.  Phimps,  70  Ark.  90    66  SW.  M9.  ^^^            ^  ^^^^^^^^  ^  ^^  ^  g,,^^^ 

80.Stoelker    v.    Wooten.    80    Ala.  g,.  ei  n.  W.  565,  64  N.  W. 

610.  2  So.  703. 

»»D,eyE«s  v^Gage  &  Co..  84  M.ss.  61<;^  ^^.^^^  ^   ^^^^^^_  ,,  A,k.  623. 

'"»Boag°v''woo1ward,    nS.C^  'Z.%"..  Harris,  13  Ala.  465; 

247,  11  S.  E.  726:  Dreylus  v.  Gage  6  »"  "^     „  ^iL   ,4    Ala  435;  Cun- 

Co.;  84  Miss.  219,  36  SO.  248.  ^^v     JnU '-'.    11  lu.    App.    (It 

,„.s,. Coleman    v.    S.ler.    74    Ala.  nea^v.^   ^^^  ^^^^,^^^  ^    ^,,,^^^^  20 

435.  o.    a    p    481  •    Trimble   v.    Durham,  70 

,.,  Robinson  v.  Lehman,   Darr    &  S.  C.  481,   Tr  ^^^  ^^  ^^^^^ 

CO.,  72  Ala.  401;  Varner  v^R-^^l^l   ^   coot  ^0  Mo.  APP.  149.  It  i.  said 
Ala.    603,      5    SO.    725     «•!*=""  J;   ^  j^^,^^  „,  a  note  for  the 

cross,  69   Ark.   ^SL  6=   S.  W.   101     tha  ^^^  ^^^^^^^^^^  ^^  ^  ^^,^^^_ 

Tk  ,'26'' WaZSer  v.  Ho^oS  18    but  it  at  most  raises  a  presumption 
Tex.'  Clv!  App.  291,  44  S.  W.  566;    thereof. 


1942  LIENS  IN  FAVOR  OF  LANDLORD.  §321 

claim.  And  it  is  immaterial  in  this  regard  that  the  note  contains 
a  waiver  of  the  statutory  exemptions.^i^  The  acceptance  of  the 
tenant's  draft  for  rent  due,  likewise,  does  not  extinguish  the 
lien,  it  not  appearing  to  have  been  accepted  in  payment  of  the 
rent.^^^  It  has  been  decided,  however,  that  if  a  note  is  accepted 
partly  for  rent  and  partly  for  other  items,  and  it  does  not  ap- 
pear to  what  extent  the  note  is  for  rent,  the  lien  for  rent  is 
waived,^!^  and  a  later  decision  in  the  same  state  seems  to  be  to 
the  effect  that  the  inclusion  in  the  note  of  the  amount  of  other 
indebtedness  with  that  of  the  rent,  even  though  the  amount  of 
each  is  readily  ascertainable,  involves  a  waiver  of  the  lien.^i^ 

The  acceptance  by  the  landlord  of  the  personal  security  of  an- 
other, in  addition  to  that  of  the  tenant,  for  the  payment  of  the 
indebtedness,  does  not  involve  a  waiver  of  the  lien,3i8  provided 
at  least  an  intention  that  it  shall  not  so  operate  is  shown.3i» 

The  express  reservation  by  the  lease  of  a  lien  on  the  tenant's 
property  does  not,  it  has  been  decided,  affect  the  existence  of 
the  statutory  lien,32o  and  the  same  view  has  been  asserted  with 
reference  to  the  effect  of  a  subsequent  chattel  mortgage  to  secure 
the  rent.321  Jt  has  also  been  decided  that  the  statutory  lien  is 
not  affected  by  the  creation  of  an  express  lien  on  all  the  tenant's 
chattels,  whether  exempt  or  not,  it  being,  however,  intimated  that 
a  failure  to  thus  make  the  lien  more  extensive  than  the  statutory 
lien,  by  extending  it  to  exempt  chattels,  might  give  it  the 
effect  of  a  v/aiver  of  the  latter.322  And  it  was  held  that  the  tak- 
ing of  a  mortgage  on  chattels,  which  was  ineffective  as  against 
a  third  person  by  reason  of  failure  to  record  it,  did  not  involve 
a  waiver  of  the  lien,  the  failure  to  record  being  regarded  as  evi- 

314  Stephens    t.    Adams,    93    Ala.  319  Rollins    v.    Proctor,    56    Iowa, 

117,    9    So.    529.  326,  9  N.  W.  235;   Block  v.  Latham, 

3i5Worsham    v.    McLeod     (Miss.)  63  Tex.  414;  Smith  v.  Wells'  Adm'x, 

11  So.  107.  G7  Ky.   (4  Bush)   92. 

316  Smith  V.  Dayton,  94  Iowa,  102,  320  pranklin  v.  Meyer,  36  Ark.  96; 
62  N.  W.  650.  Dreyfus  v.  Gage  &  Co.,  84  Miss.  219, 

317  T.adner    v.    Balsley,    103    Iowa,  36   So.  248. 

674,  72   N.  W.   787.  321  Merchants'  &  Planters'  Bank  v. 

318  Denham     v.     Harris,     13     Ala.  Meyer,  56  Ark.  499,  20  S.  W.  406. 
465;    Coloman  v.  Siler,  74  Ala.  435;  322  Smith  v.  Dayton,  94  Iowa,  102, 
Cnnnea  v.  Williams,  11  111.  App.  (11  62    N.    W.    650;    Ladner    v.    Balsley, 
Bradw.)    72.  103  Iowa,  674,  72  N.  W.  787. 


§  321  STATUTORY  LIENS.  I9.I3 

dence  of  a  contrary  intontion.^^s  But  there  is  a  decision  to  the 
effect  that  the  acceptance  by  the  landlord's  agent,  in  his  own 
name,  of  a  mortgage  on  the  tenant's  crop,  involved  a  waiver  of 
a  lien  on  the  subtenant's  crop,  in  favor  of  a  hona  fide  purchaser 
of  the  latter.324 

The  recovery  of  a  personal  judgment  for  the  rent  has  been 
occasionally  regarded  as  involving  a  waiver  of  the  lien  there- 
for,325  though  in  one  case  a  contrary  view  has  been  adopted.^^sa 

That  the  tenant  replevies  property  taken  under  distress,  and 
gives  bond  to  satisfy  the  judgment,  has  been  decided  not  to  affect 
the  landlord's  lien.^-*^ 

(3)  Inducing  action  by  third  person.  If  the  landlord  induces 
a  third  person  to  make  advances  or  furnish  supplies  to  the  ten- 
ant by  stating  to  him,  expressly  or  by  implication,  that  he  will 
not  assert  the  priority  of  his  lien,  he  is  estopped  to  assert  such 
priority,  and  such  effect  was  given  to  the  landlord's  promise  not 
to  make  advances  if  the  other  would  do  so,  he  being  thereby  pre- 
cluded from  asserting  a  lien  for  advances  as  against  the  latter.'--^ 
That  the  landlord  has  thus  lost  his  lien  as  to  property  on  one 
piece  of  land  does  not,  however,  affect  his  lien  as  regards  ad- 
vances or  rent  due  on  account  of  other  land,  leased  by  him  to 
the  same  tenant  at  a  subsequent  date,  without  the  knowledge  of 
the  person  in  favor  of  whom  the  estoppel  exists. ^^^  It  was  held 
that  an  assignee  of  rent  notes  waived  his  lien  by  reason  of  his 
action  in  stating  to  certain  persons,  who  did  not  know  that  he 
held  the  notes,  that  by  procuring  a  waiver  from  the  owner  of 
the  land  they  would  obtain  a  prior  lien  for  such  advances  as  they 

823  Pitkin    V.    Fletcher,    47    Iowa,  Piickett    (Tex.  Civ.  App.)    66  S.  W. 

53.  242. 

324  Gaines  v.  Keeton,  68  Miss.  473,        227  Chancellor  v.  Law,  148  Ala.  511, 

10  So.  71.  41    So.    514;    Coleman    v.    Siler,    74 

3.5  Howard  v.  Deens,  143  Ala.  423,  A'^-  435;  Beattie  v.  Hughes,  82  Ark. 

39  So.  346;  Wise  v.  Old.  57  Tex.  514.  ^^^-  ^^^   S.  W.  170.     See  Tinsley  v. 

.    ,  ^  ,  1  •       o  Tj     1,  Craige,  54  Ark.   346,   15   S.  W.   897, 

And  see  In  re  Lumpkin,  2  Hughes,  ..^  „   „,   c„„      ,  , 

„  „  „„„  16  S.  W.  570,  where,  however,  it  was 

175,  Fed.  Cas.  No.  8,606.  ^     •.,  .,  .v  .  ^v,-     ^     f  •  1^ 

decided  that  this  doctrine  could  not 

325a  Belcher  v.  Grimsley,  88  N.  C.  ^^   ^.jj^Ued    in   view   of   a   statutory 

^^-  provision  that  a  waiver  of  the  land- 

32G  McFvoy  V.  Niece,  20  Tox.  Civ.  lord's  lien  must  be  in  writing. 

App.  686,  50  S.  W.  424;  McBride  T.  828  parker  v.  Clark,  61  Miss.  492. 


1944  LIENS  IN  FAVOR  OF  LANDLORD.  §321 

might  make,  they  having,  on  the  strength  of  such  statement,  pro- 
cured such  waiver  and  then  made  advances.^^g 

An  agreement  by  the  landlord  to  release  a  mortgage  held  by 
him,  on  the  tenant's  chattels,  was  regarded  as  effecting  a  waive? 
of  his  statutory  lien  as  well,  the  person  with  whom  the  agree- 
ment was  made  so  understanding  it,  as  the  landlord  knew,  and 
making  a  loan  to  the  tenant  on  the  faith  thereof,  and  the  statute 
of  that  state  providing  that  "when  the  terms  of  an  agreement 
have  been  intended  in  a  different  sense  by  the  parties  to  it,  that 
sense  is  to  prevail  against  either  party  in  which  he  had  reason  to 
suppose  the  other  understood  it."^^^ 

On  the  same  principle  as  that  involved  in  the  cases  above  re- 
ferred to,  that  the  landlord  waives  his  lien  in  favor  of  one  whom 
he  induces  to  take  a  certain  action  by  representations  that  the 
lien  is  nonexistent,  it  has  been  decided  that  he  cannot  assert  the 
lien  for  rent  as  against  a  purchaser  of  the  tenant's  interest  in 
the  crop,  to  whom  he  stated,  in  reference  to  the  intended  pur- 
chase, that  "it  is  all  right"  and  that  nothing  was  due  him  except 
the  stipulated  portion  of  the  crop.^^i  j>^^  n  -^y^g  ligl(j  ^]^a,t  the 
landlord  in  effect  waived  his  lien  on  the  tenant's  cotton  crop, 
in  favor  of  a  "ginner, "  by  consenting,  through  his  agent,  to  the 
ginning,  which  was  necessary  before  the  crop  could  be  mark- 
eted.322 

(4)  Consent  to  sale  or  removal  of  property.  There  are  a  num 
ber  of  cases  to  the  effect  that,  if  the  landlord  consents  to  a  sale 
by  the  tenant  of  the  property  on  which  he  has  a  lien,  he  thereby 
waives  the  lien  in  favor  of  the  purchaser.^^^  In  some  eases  the 
decision  appears  to  be  based  on  the  fact  that  the  purchaser 
is  without  notice  of  the  lien,  and  that  consequently  the  land- 
lord,  as   having  made  the  sale  possible,   should   bear  any  loss 

329  Dreyfus  v.  Gage  &  Co.,  84  Miss,  on  a  crop  of  corn  was  not  waived 
219,  36  So.  248.  by  the  insertion  in  ttie  instrument 

330  Wood  V.  Duval,  100  Iowa,  724,  of  lease  of  a  clause  providing  for  the 
69  N.  W.  1061.  payment  of  the  rent  "from  the  pro- 

331  Goeing  v.  Outhouse,  95  III.  346.  ceeds  of  the  first  sale  of  the  crop." 

332  Duncan  v.  Jayne,  76  Miss.  133,  That  the  consent  to  the  sale  does 
23  So.  392.  not  involve  a  waiver  of  the  lien  in 

333  See  cases  cited  In  notes  next  favor  of  persons  other  than  the  pur- 
following.  But  in  Salina  State  chaser,  see  Sparks  v.  Ponder,  42 
Bank  v.  Burr,  7  Kan.  App.  197,  52  Tex.  Civ.  App.  431,  15  Tex.  Ct.  Rep. 
Pac.  704,  it  is  decided  that  the  lien  380,  94  S.  W.  428. 


»  221  STATUTORY  LIENS.  1945 

rather  than  the  purchaser.334  In  some,  on  the  other  hand,  the 
fact  that  the  purchaser  would  suffer  if  the  landlord  were  al- 
lowed to  assert  his  lien  as  against  him  appears  to  be  ignored, 
and  the  decision  is  based  rather  on  the  theory  that  the  con- 
sent to  the  sale  operates  as  a  waiver  of  the  lien,  irrespective 
of  its  effect  upon  other  persons.335  That  the  waiver  by  reason 
of  the  consent  to  the  sale  is  not  based  on  the  theory  of  a 
contract  not  to  enforce  the  lien  has  been  occasionally  stated.^^c 
and  is  clearly  apparent,  since  there  is  ordinarily  no  consideration 
for  the  giving  of  consent.^^"  The  fact  indeed  that  there  is  no 
consideration  for  the  consent  to  the  sale  has  been  regarded  as 
entitling  the  landlord  to  withdraw  the  consent  before  the  sale  is 

If  the  landlord  directly  informs  one  proposing  to  purchase 
from  the  tenant  property  subject  to  the  lien  that  the  lien  no 
lon-er  exists,  and  the  purchaser  pays  the  tenant  for  the  property 
on  the  strength  of  such  information,  the  landlord  is,  necessarily 
estopped  to  assert  the  lien  as  against  such  purchaser.33      But 

33.  May    V.    McGaughey.    60    Ark.  Iowa.  337,  92   N.  W.   58    it  is  saicl 

357    30     S   W    417,  28  L.  R.  A.  153;  that  a  consideration  exists  for  this 

Wrisht  V  E.  M.  Dickey  Co.,  83  Iowa,  purpose  in  such  a  case  m  the  shape 

464   50N  W   206;  Griffith  v.Gillum,  of   detriment    to    the    tenant     since. 

flMo  App.33;  Wump  v.  Early,  104  on   the    strength    of    the    landlord  s 

Mo    Ann    85    78  S    W.  343;  Gilliam  consent  to   the  sale,  he   has   hound 

Tsmmier^'cTL.  Civ.  App.)    33   S.  himself  to  mal.  a  good  title  to  the 

W    984-    T    W    Johnson   &   Son  v.  purchaser.     But   the   sale    is   subse 

Kincaid   (Tex    Civ.  App.)    81  S.  W.    quent   to    the   landlord's    giving    of 
Kincaid    (lex.  ^iv  ^^^^^^^^    ^^^^^    ^^^   ^^.^    ^^^^^^    ^^^ 

33.  Randall    v.     Ditch,    123    Iowa,  liability    arising    tH-efrom    cannot 

582   99  N   W.  190;  Noe  v.  Layton,  76  be  a  consideration  for  the  consen  , 

Ark    582    89   S.  W.  1005;   Campbell  and  moreover  the  sale,  even  though 

f  Bowen.  22  Ind.  App.  562,  54  N.  E.  it  involve  such  a  liability    is  not  a 

409-  Fulkerson  v.  Lynn,  64  Mo.  App.  detriment  to  the  tenant.     If  it  wcic. 

649-     White    v.    McAlister,    67    Mo.  he  would  not  make  it 

Api;    3^4;  Planters'  Compress  Co.  v.  sss  Cohn  v.  Smith,  64  Miss^  816,  2 

Howard,   35   Tex.   Civ.   App.   300.   80  So.  244     f  ^^  ^  ^^^g^^;  ^^  JJ,: 

S    W.  119;  Foxworth  v.  Brown,  120  123,    12    S.    E.    2o6^     See    Planters 

Ala     59     24    So.    1.     See    Cohn   v.  Compress    Co.   v.    Howard     35   Tex. 

smith   64  Miss.  816,  2  So.  244.  Civ.  App.  300,  80  S.  W.  119^ 

'"I  Griffith  V.  Gillum,  31  Mo.  App.  .ao  Goeing  v.  Outhouse,  95  111.  34^. 

33-    Fulkerson  v.  Lynn,  64  Mo.  App.  S^«  White  v.  Freedman  s  Bank.  8  D. 


649. 

337  In  Fishbaugh  v.  Spunaugle,  118 


C.  (1  MacArthur)   509. 


1946  LIENS  IN  FAVOR  OP  LANDLORD.  §  321 

why  the  landlord,  by  expressing  to  the  tenant  his  consent  to  a 
sale  of  the  crop,  should  thereby  lose  his  lien  as  arainst  one  who 
purchases  without  knowledge  of  such  consent,  is  not  entirely 
clear.  There  is  no  room  for  any  estoppel  unless  the  purchaser 
learns  of  the  landlord's  consent  before  making  the  purchase,  and 
acts  on  the  strength  thereof,  and  it  is  difficult  to  see  how  a  con- 
sent to  the  sale  can  be  regarded  as  an  expres.sion  of  an  inten- 
tion to  waive  the  lien.^^^.^^^  The  landlord's  consent  to  the 
sale  would  seem  rather  to  show  his  reliance  on  and  retention  of 
his  lien  to  protect  him  in  his  claim  for  rent  or  advances. 

The  receipt  by  the  landlord,  on  account  of  rent,  of  a  part  of  the  • 
proceeds  of  a  sale  by  the  tenant  of  property  subject  to  the  lieu, 
does  not,  it  has  been  held,  show  a  consent  to  the  sale,  so  as  to 
preclude  his  assertion  of  a  lien  for  the  balance  of  the  rent.^^^     in 
another  state,  however,  a  different  view  has  been  taken.^^^ 

A  consent  to  the  sale  of  the  crop  cannot  be  inferred  from  the 
fact  that  the  landlord  consented  to  sales  of  crops  of  former 
years.3^^  Nor  because  he  failed  to  "investigate  or  look  up" 
another  part  of  the  crop  which  he  knew  had  been  disposed  of,  or 
to  inquire  as  to  the  intended  disposition  of  the  part  in  question.^^r' 

340,  341  In  Bigham  v.  Cross,  69  Ark.  Bloom,  111  Iowa,  319,  82  N.  W.  794, 
581,  65  S.  W.  101,  it  was  held  that  an  action  by  the  landlord  against 
there  was  no  waiver  resulting  from  the  purchaser  of  a  part  of  the  crop 
the  landlord's  consent  that  third  per-  for  conversion  (post,  note  449),  it 
sons,  who  were  furnishing  supplies  was  decided  that  the  fact  that  the 
to  the  tenant,  should  handle  and  defendant  had  in  previous  years  pur- 
dispose  of  the  crop,  on  condition  chased  part  of  the  crops  of  those 
that  they  protect  him  in  his  right  years  from  the  same  tenant  did  not 
as  landlord.  estop    the    landlord    from    asserting 

342  Volraer    v.    Wharton,    34    Ark.  his  lien,  for  the  reason  that  defend- 

691.     See  Noe  v.  Layton.  69  Ark.  551,  ant   had    no    knowledge,    when    pur- 

64  S.  W.  880;  Id.,  76  Ark.  582,  89  S.  chasing    previous    crops,    that    they 

W.  1005.  came  from  these  premises.     It   was 

343McCollum   V.  Wood    (Tex.   Civ.  also  held  that   the  defendant  could 

App.)  33  S.  W.  1087;  Plant-ers'  Com-  not  show,  as  bearing  on  the  question 

press   Co.   v.   Howard,   35   Tex.    CiV.  of  waiver,  that  the  tenant  had  sold 

App.  300,  80  S.  W.  119;   Id.,  41  Tex.  livestock    raised    on    the    premises, 

Civ.  App.  285,  14  Tex.  Ct.  Rep.  815,  since  the  landlord  had  no  notice  of 

92  S.  W.  44.  such    sales. 

344  Bivins     v.     West      (Tex.     Civ.        345Bl?ke  v.  Counselman  &  Co.  95 

App.)    46   S.  W.  112.     In  Church  v.  Iowa.    219,  63  N.  W.  679. 


^  321  STATUTORY  LIENS.  19-17 

A  consent  to  the  sale  of  a  part  of  the  crop  subject  to  the  lien 
cannot  be  regard-ed  as  a  consent  to  the  sale  of  the  wholc^^^o 

The  landlord's  consent  to  the  removal  of  the  crop  from  the 
premises  has  been  regarded  as  extinguishing  his  lien  in  favor 
of  a  hona  fide  purchaser,^^?  but  such  consent  will  not  have  that 
effect,  it  is  said,  unless  it  results  in  misleading  a  hona  fide  pur- 
chaser, or  it  is  intended  thereby  to  waive  the  lien.s^s  When  the 
statute  provided  that  "landlords  shall  have  a  lien  on  the  prop- 
erty of  their  tenants  which  remains  in  the  house  rented,  for  the 
rent  due,  and  said  property  may  not  be  removed  from  said  house 
without  the  landlord's  consent,"  it  was  held  that  the  lien  was 
lost  upon  the  removal  of  property  with  the  landlord's  consent, 
and  that  there  was  a  removal  from  "the  house  rented"  within 
this  provision  when  the  property  was  removed  to  another  apart- 
ment in  the  same  building,  held  under  a  different  lease.^^a 

That  the  landlord  allowed  the  tenant  to  apply  a  part  of  the 
crop  to  the  latter 's  own  use,  the  landlord  having  no  knowledge 
of  a  third  person's  claim  against  the  tenant,  has  been  held  not  to 
involve  a  waiver  in  favor  of  such  person  of  his  lien  as  to  the 
balance  of  the  crop.^^o  It  does  not  seem  that  the  landlord's 
knowledge  of  such  claim  could  have  changed  this  result,  there  be- 
ing no  recognized  obligation  upon  landlords  to  see  that  their  ten- 
ants apply  their  crops  to  the  payment  of  their  debts. 

It  has  been  held  that,  when  there  was  a  reservation  of  a  part  of 
the  crop  as  rent,  the  division  of  the  crop,  by  mutual  agreement, 
followed  by  the  tenant's  removal  of  his  share,  did  not  divest  the 
lien,35i  J5ut  that  the  case  was  different  when,  though  the  tenant's 
share  was  set  apart,  he  was  told  not  to  remove  such  share  till  he 
had  paid  his  advances.^^^ 

(5)  Abstention  from  enforcement  of  lien.  The  statutory  lien 
exists  independently  of  the  levy  of  a  distress  for  its  enforce- 

346  Wimp  V.  Early.   104   Mo.   App.       348  Tuttle  v.  Walker,  69  Ala.  172; 
85,  78  S.  W.  343;  Walhoefer  v.  Hob-   Coleman  v.  Siler,  74  Ala.  435. 
rood,  Ifi  Tex.  Civ.  App.  291,  44  S.  W.        S4n  Wolcott    v.    AshPTifelter,    5    N. 
566;  '  Antone    v.    Miles      (^         Civ.    M.  442,  23  Pac.  780,  8  L.  R.  A.  691. 
App.)  17  Tex.  Ct.  Rep.  748,  105  S.  W.        s.-so  Johnston     v.     Kleinsmith,     33 
39.     See   Bigham   v.   Cross,    69   Ark.    Tex.  Civ.  App.  236,  77  S.  W.  36. 
581,  65  S.  W.  101.  °^^  Jordan  v.  Bryan.  103  N.  C.  59, 

.•*47  Mav    V.    McHanf^hey,    60    Ark.    9  S.  E.  135. 
357,  30  S.  W.  417,  28  L..  R.  A.  153.        352  Jarrell  v.  Daniel,  114  N.  C  212, 


1948  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

ment,3^3  and  consequently  the  failure  to  undertake  to  enforce 
it  in  this  manner,354  or  the  abandonment  of  a  distress  begun  for 
this  purpose,355  does  not  affect  the  existence  of  the  lien.  In  one 
state,  however,  it  has  been  held  that  if,  after  issuing  a  distress  in 
a  suit  for  reM,  the  landlord  takes  merely  a  personal  judgment 
for  the  rent,  the  lien  is  lost.^se  And  so  in  another  state  the  fail- 
ure to  enforce  the  lien  for  rent  by  attachment,  as  the  statute  pro- 
vides, and  the  recovery  of  a  personal  judgment  therefor,  appear 
to  be  regarded  as  involving  a  waiver  of  the  lien.^^'^  And  if  the 
statute  expressly  limits  the  period  of  the  duration  of  the  lien, 
it  is  usually  lost  by  a  failure,  within  that  time,  to  institute  pro- 
ceedings to  enforce  it.^^'^* 

In  one  state,  as  before  stated,  if  the  landlord  fails  to  proceed 
against  his  tenant's  crop  on  notification  by  a  subtenant,  he  loses 
his  right  to  proceed  against  the  crop  of  the  latter.^^^ 

The  action  of  the  landlord  in  deferring  for  a  month  the  sale 
under  an  attachment  issued  to  enforce  the  lien  has  been  held  to 
involve  no  relinquishment  of  the  lien,^^'^  and  the  failure  for  a 
month  to  begin  a  proceeding  to  foreclose  the  lien,  the  landlord  hav- 
ing in  the  meanwhile  taken  possession  of  the  crop  with  the  ten- 
ant's assent,  was  held  not  to  involve  the  loss  of  the  lien.^^o 

(6)  Blending  of  claims.  It  has  occasionally  been  decided  that 
if  the  landlord  blends  his  claim  for  rent  with  other  claims  for 
which  he  has  no  lien,  and  undertakes  to  assert  a  lien  for  the  whole 
amount  of  such  claims,  he  thereby  loses  his  lien.^si 

19  S.  E.  146,  26  L.  R.  A.  810,  41  Am.  357  Howard  v.  Deens,  143    Ala.  423, 

St.   Rep.   786.  39  So.  346.     The  fact  that  a  replevy 

353  See  ante,  at  note  204.  bond    was    given    and   accepted    for 

354  Lillard  v.  Noble,  159  111.  311,  42  the  property  distrained  was  held  not 
N.  E.  844;  Mead  v.  Thompson,  78  111.  to  release  the  lien,  though  the  pro- 
62;  Bourcier  v.  Edmondson,  58  Tex.  ceeding  was  afterwards  dismissed. 
675;  Templeman  v.  Gresham,  61  McEvoy  v.  Niece,  20  Tex.  Civ.  App. 
Tex.  50;  Randall  v.  Rosenthal  (Tex.  686,  50  S.  W.  424. 

Civ.  App.)   27  S.  W.  906.  357a  See  ante,  §  321  g. 

355  Lillard  v.  Noble,  159  111.  311,  42        sss  See  ante,  note  144. 

N.  E.  844;  Wetsel  v.  Mayers,  91  111.  359  Gibson  v.  Gautier,  12  D.  C.   (1 

497;    Hamilton    v.    Kilpatrick    (Tex.  Mackey)    35. 

Civ.  App.)  29  S.  W.  819.  3co  Gaw    v.    Bingham     (Tex.    Civ. 

3R6Tolnnd  V.  Swearingen,  39  Tex.  App.)    107   S.  W.  931. 

447;  Wif^e  v.  Old,  57  Tex.  514;  Bond  301  Smith  v.  Dayton,  94  Iowa,  102, 

V.  Carter  (Tex.  Civ.  App.)  73  S.  W.  62  N.  W.  650;  Lndr^er  v.  RnJsley,  103 

45.  Iowa,  674,  72  N.  W.  787;   First  Nat. 


§321 


STATUTORY  LIENS. 


1949 


j.  Removal  of  the  property  subject.  The  existence  of  the  lien 
does  not,  it  seems,  absolutely  preclude  the  tenant  from  removing 
from  the  premises  the  property  subject  thereto,362  ^^t  under  some 
of  the  statutes,  if  he  thereby  endangers  the  landlord's  claim,  the 
latter  may  immediately  proceed  by  distress  or  attachment  against 
the  property  j^^^^a  qjj^^  jj^  g^  number  of  cases  the  courts  have  recog- 
nized the  right  of  the  landlord  to  an  injunction  against  removal, 
so  far  as  this  may  appear  necessary  to  protect  his  lien.^cs 

The  removal  of  the  property  from  the  leased  premises  does  not, 
in  most  jurisdictions,  affect  the  continued  existence  of  the  lien,^^^ 
and  it  is  immaterial  in  this  regard  that  the  statutes  exclude  any 
right  to  seize,  after  removal,  other  classes  of  property  on  which 
no  lien  is  given.^^s  in  one  jurisdiction,  how^ever,  the  lien  is  lost 
by  removal,  the  statute  giving  a  lien  on  property  "which  remains 
in  the  house  rented.  "3*^^ 


Bank  of  Sioux  City  v.  Flynn,  117 
lov/a,  493,  91  N.  W.  84;  Riley  v. 
Renick  Mill.  Co.,  44  Mo.  App.  519. 
But  see  Dickenson  v.  Harris,  48  Ark. 
355,  3  S.  W.  58;  Varner  v.  Rice,  39 
Ark.  344. 

362  See  Haseltine  v.  Ausherman,  87 
Mo.  410. 

362a  Price  V.  Roetzell,  56  Mo.  500; 
Hubbard  v.  Moss,  65  Mo.  647;  Hulett 
V.  Stockwell,  27  Mo.  App.  328;  Gar- 
ner V.  Cutting,  32  Iowa,  547;  Click 
V.  Stewart,  36  Tex.  280;  Miller  v. 
Bider  (Iowa)  105  N.  W.  594.  See 
post,  §  H33  b. 

363  Milner  v.  Cooper,  65  Iowa,  190, 
21  N.  W.  558;  Carson  v.  Electric 
Light  &  Power  Co.,  85  Iowa,  44,  51 
N.  W.  1144;  Wallin  v.  Murphy,  117 
Iowa,  640,  91  N.  W.  930,  94  Am.  St. 
Rep.  320;  Price  v.  Roetzell,  56  Mo. 
500.  And  an  injunction  has  been 
issued  against  feeding  the  crops  to 
stock  (Gray  v.  Bremer,  122  Iowa, 
110,  97  N.  W.  991);  and  against  a 
sale  under  execution  by  the  tenant's 
creditors  (Click  v.  Stewart.  36  Tex. 
280).    There  is,  it  is  has  been  decid- 


ed in  one  state,  no  right  to  an  in- 
juuctiou  when  an  attachment  is 
available.  Rotzler  v.  Rotzler,  46 
Iowa,  189.  But  in  another  it  hag 
been  held  that  the  remedy  by  at- 
tachment is  not  exclusive.  Price  v. 
Roetzell,  56  Mo.  500;  Sanders  v.  Ohl- 
hausen,  51  Mo.  163. 

304  Lomax  v.  LeGrand,  60  Ala.  537; 
Andrews  Mfg.  Co.  v.  Porter,  112 
Ala.  381,  20  So.  475;  Aikins  v.  Sta- 
dell,  9  Kan.  App.  298,  61  Pac.  325; 
Henry  v.  Davis,  60  Miss.  212;  Fitz- 
gerald V.  Fowlkes,  60  Bliss.  270; 
Wilkes  V.  Adler,  68  Tex.  689,  5  S. 
W.  497.  In  Webb  v.  Sharp,  SO  U.  S. 
(13  Wall.)  14,  20  Law.  Ed.  478,  the 
contrary  view  is  suggested  with  ref- 
erence to  the  District  of  Columbia 
statute.  Under  the  Kentucky  statute 
(St.  1903,  §  2317)  the  lien  exists  for 
fifteen  days  after  a  bona  fide  remov- 
al of  the  property.  See  Stone  v. 
Bohm,   79   Ky.   141. 

365  Henry  v.  Davis,  60  Miss.  212; 
Fitzgerald  v.  Fowlkes,  60  Miss.  270. 

306  Wolcott  V.  Ashenfelter,  5  N.  M. 
442,   23    Pac.    780,    8    L.    R.   A.    691, 


1950  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

There  are,  in  several  states,  provisions  imposing  a  penal  lia- 
bility upon  the  tenant  removing  or  disposing  of  the  property  sub- 
ject to  the  landlord's  lien,  without  first  satisfying  the  landlord's 
claim.  The  cases  construing  such  statutes  are  referred  to  in  the 
notes.367  It  does  not  seem  that  the  violation  of  such  penal  stat- 
utes would  ordinarily  impose  any  civil  liability  upon  the  tenant. 
The  violation,  however,  of  a  statute  providing,  without  the  impo- 
sition of  any  penalty  for  noncompliance  therewith,  that  it  should 
be  unlawful  for  the  tenant  to  remove  the  crop  until  the  landlord's 
claim  for  rent  and  advances  had  been  satisfied,^^^  -yyas  decided  to 
involve  a  conversion  by  the  tenant  and  also  by  the  person  receiv- 
ing it  from  the  tenant  with  knowledge  of  the  lien.^^^ 

It  has  apparently  been  decided  by  the  supreme  court  of  the 
United  States  that,  upon  the  removal  of  the  tenant's  property 
into  another  state,  the  landlord's  lien  under  the  statute  of  the 
state  in  which  the  demised  premises  are  located  comes  to  an  end, 
and  that  it  cannot  thereafter  be  asserted  even  in  the  courts  of 
the  latter  state.^'*^  This  decision  has  been  criticised,^'^i  and 
with  good  reason,  it  is  submitted,  since  while  the  courts  of  the 
state  into  which  the  property  is  removed  are  under  no  obliga- 
tion to  recognize  and  enforce  the  statute  of  the  state  in  which 
the  demised  premises  are  located,  the  courts  of  the  latter  state 
should  do  so,  in  so  far  as  they  can,  in  spite  of  the  removal.  The 
same  view,  that  the  removal  of  the  tenant's  property  into  an- 

■where  an  "apartment"  was  held  to  E.  1026;  State  v.  Foushee,  117  N.  C. 

be  a  "house"  within  the  meaning  of  766,  23  S.  E.  247;  State  v.  Neal,  129 

the  statute.  N.   C.    692,   40    S.   E.   205;    State   v. 

367  Money  v.  State,  89  Ala.  110,  7  Crook,  132  N.  C.  1053,  44   S.   E.  32, 

So.  841;  Smith  v.  State,  139  Ala.  115,  61  L.  R.  A.  777,  95  Am.  St.  Rep.  688; 

36    So.    727;    Hackney   v.    State,   101  State  v.  Bell,  136  N.  C.  674,  49  S.  E. 

Ga.  512,  28  S.  E.  1007;   Morrison  v.  163;    State  v.   Reeder,   36  S.  C.  497, 

State,  111  Ga.  642,  36  S.  E.  902;   Ed-  15  S.  E.  544;     State  v.  Hoskins,  106 

wards  v.   State    (Miss.)    8     So.  464;  Tenn.  430,  61  S.  W.  781. 

Love  V.  State  (Miss.)  8  So.  465;  Var-  ses  Texas  Rev.  St.  1895,  art.  3236. 

ner  V.  Spencer,  72  N.  C.  381;  State  v.  3C9  Mensing   Bros.   &   Co.   v.    Card- 

Merritt,  89  N.  C.  50€;  State  v.  Rose,  well,  33  Tex.  Civ.  App.  16,  75  S.  W. 

90  N.  C.  712;   State  v.  Powell,  94  N.  347. 

C.   920;    State  v.  Crowder,   97  N.  C.  270  Walworth  v.  Harris,  129  U.   S. 

432,  1  S.  E.  690;    State  v.  Williams,  8.^5,  32  Law.  Ed.  712. 

106  N.  C.  646,  10  S.  E.  901;  State  v.  sti  Minor,  Conflict  of  Laws,  p.  309. 

Smith,  106  N.  C.  653,  11  S.  E.  166;  note. 
State  V.  Turner,  106  N.  C.  691,  10  S. 


§321 


STATUTORY  LIENS. 


1951 


other  jurisdiction  extinguishes  the  lien  as  to  tl'nt  property,  has 
been  recognized  by  the  courts  of  one  of  the  states,  in  connection 
with  property  removed  from  that  state.372  Xn  another  state, 
what,  it  is  conceived,  is  a  sounder  view  is  adopted,  that  the  land 
lord  is  not  deprived  of  his  right  to  assert  his  lien  in  the  conrts 
of  his  own  state  by  the  fact  that  the  property  has  been  removed 
to  another  state  by  the  tenant  or  some  third  person.s^s 

k.  The  possessory  rights  of  the  landlord.  The  existence  of 
the  statutory  lien  does  not  of  itself,  it  would  seem,  give  any 
right  of  possession  to  the  landlord  as  regards  the  property  sub- 
ject to  the  lien.  The  ownership  of  the  property  is  in  the  ten- 
ant,374  and  the  statute  does  not  purport  to  divest  him  thereof, 
or  of  the  accompanying  right  of  possession.  That  the  landlord 
has  no  right  of  possession  has  been  expressly  asserted,375  and  it 
has  been  decided  that  he  cannot  maintain  replevin  or  its  stat- 
utory equivalent  for  the  property.^"^"  There  are,  however,  a  num- 
ber of  decisions  3'^'^  to  the  effect  that  he  may,  at  least  after  the 
rent  becomes  due,  assert  a  right  of  possession  by  force  of  his 
lien  for  rent. 


372  Chism  V.  Thomson,  73  Miss.  410, 
19  So.  210;  Millsaps  v.  Tate,  75  Miss. 
150,  21  So.  663;  Ball  v.  Sledge,  82 
Miss.  749,  35  So.  447,  100  Am.  St. 
Rep.  654. 

2"3  Atkinson  v.  James,  96  Ala.  214, 
10  So.  846,  in  which  case  a  nonresi- 
dent to  whom  a  crop,  grown  on  the 
demised  premises,  was  delivered  in 
his  own  state,  was  held  liable  in 
damages  as  having  purchased  it 
with  knowledge  that  it  was  subject 
to  a  landlord's  lien. 

374  See  Broughton  v.  Powell,  52  Ala. 
123;  Hussey  v.  Peebles,  53  Ala.  432; 
Upham  V.  Dodd,  24  Ark.  545;  Bow- 
ers V.  Davis,  79  111.  App.  347;  Evans 
V.  Groesbeck,  42  Tex.  Civ.  App.  43, 
93  S.  W.  1005. 

375  Bell  V.  Matheny,  36  Ark.  572; 
Finney  v.  Harding,  136  111.  573.  27 
N.  E.  289,  12  L.  R.  A.  605,  29  Am. 
St.  Rep.  334;  Wilson  v.  Respass,  86 
N.  C.  112. 


376  Bell  V.  Matheny,  36  Ark.  572; 
Knox  V.  Heliums,  38  Ark.  413; 
Treadway  v.  Treadway  *Ex'rs,  56 
Ala.  390;  Travers  v.  Cook,  42  111. 
App.  580;  Evans  v.  Groesbeck,  42 
Tex.  Civ.  App.  43,  93  S.  W.  1005. 

377  Dale  V.  Taylor  (Kan.)  66  Pac. 
993;  Hunler  v.  Whitfield,  89  111.  229; 
Wetsel  V.  Mayers,  91  111.  497;  Ed- 
wards V.  Cottrell,  43  Iowa,  194: 
Brody  v.  Cohen,  106  Iowa,  309,  76 
N.  W.  682  (semble);  Groesbeck  v. 
Evans  (Tex.  Civ.  App.)  83  S.  W. 
430.  In  Marrs  v.  Lumpkins,  22  Tex. 
Civ.  App.  448,  54  S.  W.  775,  it  is 
held  that  he  may  maintain  an  action 
for  "conversion"  against  the  tenant. 
In  Hilman  v.  Brigham,  117  Iowa, 
70,  90  N.  W.  491;  Hubenka  v.  Vach, 
64  Neb.  170,  89  N.  W.  789,  it  is  de- 
cided that  he  has  no  right  of  pos- 
session until  rent  is  due,  it  being 
asserted,  by  implication,  that  there- 
after he  has. 


1952  LIENS  IN  FAVOR  OP  LANDLORD.  §  321 

The  possession  may,  in  any  case,  be  given  to  the  landlord  by 
special  agreement,^'^^  and  after  delivery  of  a  portion  of  the  crops 
in  payment  of  the  rent  the  landlord  has  the  possession  thereof 
for  every  purpose.^'^^ 

In  North  Carolina  there  is  an  express  statutory  provision  that, 
in  the  case  of  a  lease  for  agricultural  purposes,  all  crops  raised 
on  said  lands  shall  be  "held  to  be  vested  in  possession  of  the 
lessor  or  his  assigns"  until  the  rents  and  any  advancements  made 
by  the  landlord  are  paid,  and  all  stipulations  performed,  it  being 
further  stated  that  "this  lien  shall  be  preferred  to  all  other 
liens"  and  the  lessor  is  given  a  right  to  bring  "claim  and  de- 
livery" for  the  crop  against  the  tenant  removing  the  crop  from 
the  land  without  the  landlord's  assent,  and  also  against  any 
person  who  may  get  possession  thereof.^^''  This  statute  in  effect 
gives  the  landlord  a  lien  to  secure  the  payment  of  rent  and  ad- 
vances, and  the  actual  possession  is  said  to  be  in  the  tenant  in 
behalf  of  the  landlord.^si  The  landlord  is  not  entitled  thereunder 
to  bring  an  action  for  the  crop  until  the  time  has  arrived  for  pay- 
ment of  the  rent  or  advances,  or  for  delivery  of  the  share  of  the 
crop  to  which  he  is  entitled,382  unless  the  tenant  has  denied  the 
landlord's  right  to  such  share,3S3  qj.  unless  the  tenant  is  about 
to  remove  or  dispose  of  the  crop  or  abandon  a  growing  crop,^^* 
in  which  cases  the  action  may  be  brought  immediately. 

It  has  been  decided  that,  when  it  is  agreed  between  the  lessor 
and  the  lessee  that  the  title  to  the  crops  shall  remain  in  the 
former  till  payment  of  the  rent,  he  has  the  right,  upon  the  aban- 
donment of  the  crop  by  the  lessee,  to  enter  and  complete  the  cul- 
tivation of  the  crop,  if  this  be  reasonably  necessary  i^^^  while  it 
was  held  in  the  same  state  that  the  lessor  had  no  such  right  if 
there  was  no  agreement  vesting  in  him  the  title  to  the  crop.^se 
But  elsewhere  there  is  a  contrary  decision  in  the  latter  regard.387 

378  Chamblee  v.  McKenzie,  31  Ark.  383  Livingston  v.  Farish,  89  N.  C. 
155;  Buck  v.  Lee,  36  Ark.  525;  Ab-  140;  Rich  v.  Hobson,  112  N.  C.  79, 
ington  v.  Steinberg,  86  Mo.  App.  639.    16  S.  E.  931. 

379  Steinbardt  v.  Bell,  80  Ala.  208.        384  Jordan  v.  Bryan,  103  N.  C.  59, 
asoRevisal  1905,  §  1993.  9  S.  E.  135. 

3siState  V.  Copeland,  86  N.  C.  601;  3?5  Riddle   v.   Hodge,    83   Ga.    173, 

.Tordan    v.    Bryan,    103    N.    C.    59,    9  9  S.  E.  786. 

S.  E.  135.  3S6  Wadley  v.  Williams,  75  Ga.  272. 

382  Jordan  v.  Bryan,  103  N.  C.  59,  3S7  Fry  &  Co.  v.  Ford,  38  Ark.  246. 

0  S.  E.  135.     See  Smith  v.  Tindall,  And   see   Sanders   v.    Ohlhausen,    51 

107  N.  C.  88,  12  S.  E.  121.  Mo.   163,  where  it  seems  to  be  as- 


P  321  STATUTORY  LIENS.  1953 

1.  Enforcement  of  lien— (1)  Necessity  of  legal  proceeding. 
The  statutes  ordinarily  name  methods  of  proceeding  for  the  en- 
forcement of  the  landlord's  lien  for  rent  or  advances,  and  it  has 
been  decided  that,  the  statute  providing  for  its  enforcement  by 
the  process  of  a  court,  the  landlord  cannot  seize  the  property  in 
satisfaction  thereof  without  legal  process  and  thereby  acquire 
title  thereto,388  and  he  has  been  held  liable  as  for  conversion 
when  he  so  seized  the  property .^s^ 

Even  though  the  tenant  consents  to  the  taking  of  the  property 
by  the  landlord,  in  satisfaction  of  the  latter 's  claim,  the  latter 's 
taking  of  possession-  without  foreclosure,  it  has  been  held,  does 
not  give  him  a  title  which  can  be  asserted  as  against  a  levy  under 
a  junior  lien.^^o  On  the  other  hand,  it  has  been  decided  that  the 
landlord  has  in  such  case  the  right  of  possession,  at  least  at  law, 
as  against  a  subsequent  mortgage.so^  And  there  is  at  least  on.' 
decision  to  the  effect  that  the  landlord  may,  if  the  tenant  aban- 
dons the  crop,  gather  and  prepare  it  for  market  and  retain,  as 
against  a  subsequent  mortgagee,  sufficient  to  satisfy  his  claim 
for  rent  and  to  reimburse  his  expenses.^^^ 

sumed  that  he  has  a  right  to  enter   livery  to  the  landlord  of  a  part  of 
for  this  purpose.  the  crop  in  payment  of  rent  entitled 

.388  Buck  V.  Lee,  36  Ark.  525;  Fol-  him  to  such  part  as  against  a  judg- 
mar  v.  Copeland,  57  Ala.  588;  Dun-  ment  creditor  of  the  tenant. 
can  v.  Clark,  96  Ga.  263,  22  S.  E.  soi  Buck  v.  Lee,  36  Ark.  525; 
927;  Hall  v.  TMcGaughey,  114  Ga.  Strauss  v.  Baley,  58  Miss.  131;  Holt 
405,'  40  S.  E.  246;  Knox  v.  Hunt,  18  v.  Colyer,  71  Mo.  App.  280;  Dunlap 
Mo.'  243.  In  Arizona  the  statute  v.  Dunseth,  81  Mo.  App.  17;  Aux- 
(Rev.  St.  1901,  §  2695)  provides  for  vasse  Milling  Co.  v.  Cornet,  85  Mo. 
the  enforcement  of  the  lien  by  seiz-    App.  251. 

ure  without  any  legal  process.  392  Fry  &  Co.  v.  Ford,  38  Ark.  246. 
That  the  tenant  may  himself  deliver  And  see  Sanders  v.  Ohlhausen,  51 
the  property  subject  to  the  lien  in  Mo.  163,  apparently  to  that  effect, 
satisfaction  thereof  see  Colean  Mfg.  In  Riddle  v.  Hodge,  83  Ga.  173,  9 
Co.  V.  Jones,  122  111.  App.  172.  S.  E.  786,  it  was  decided  that,  upon 

38!)  Schwulst  V.  Neely  (Tex.  Civ.  the  death  of  the  tenant,  the  landlord 
App.)   50  S.  W.  608.  could  enter  to  complete  the  cultiva- 

390  Duncan  v.  Clark,  96  Ga.  263,  tion  of  the  crop  if  necessary  to  pro- 
22  S.  E.  927;  Lightner  v.  Brannon,  tect  his  interest,  the  decision  being 
99  Ga.  606.  27  S.  B.  703.  The  former  based  on  a  provision  in  the  instru- 
case  distinguishes  Durdin  v.  Hill,  ment  of  lease  vesting  title  in  the 
75  Ga.  228,  58  Am.  Rep.  467,  where  landlord  until  rent  and  advances 
It  was  held  that,  the  rent  being  pay-  were  paid.  This  case  distinguishes 
able   in   a   part   of   the   crop,   a  de-   Wadley    v.    Williams,    75    Ga.    272, 

L.  and  Ten.  123. 


1954 


LIENS  IN  FAVOR  OF  LANDLORD. 


§321 


(2)  Form  of  proceeding.  In  a  number  of  states  the  statute 
provides  for  the  enforcement  of  the  lien  by  attachment.^o^a  And 
in  a  few  it  is  enforcible  by  the  statutory  distress.^^st  Occasion- 
ally the  statute  provides  that  it  may  be  enforced  by  recovery  of 
a  judgment  and  issue  of  execution  thereon.392c  j^  one  state  the 
lien  for  advances  is  enforcible  by  the  proceedings  prescribed  by 
statute  for  the  enforcement  of  other  liens  on  personaltyj^^^*^  and 
in  another  by  those  prescribed  for  the  enforcement  of  liens  for 
advances  by  third  persons  for  agricultural  purposes.^^^e  Even 
in  the  absence  of  any  statutory  provision  a,s  to  the  mode  of  en- 
forcing the  lien,  the  statutory  distress  has  been  regarded  as  a 
proper  mode  of  enforcing  the  lien  for  rent.^^^f  g^^t  it  has  been 
decided  that  a  lien  "for  the  faithful  performance  of  the  terms 
of  the  lease,"  so  far  as  it  is  not  a  lien  for  rent,  is  not  enforcible 
by  distress.3^2g     The  lien  is  not  enforcible  by  replevin.392h 

(3)  By  equitable  proceeding.     Even  though  the  statute  pro- 


where  it  was  decided  that  the  land- 
lord had  no  right  to  go  on  the  de- 
mised premises  to  save  the  crop,  on 
the  ground  that  in  that  case  there 
was  no  provision  vesting  title  in  the 
landlord.     See,  also,  ante,  §  253  c. 

^^>2a  Alalama  Code  1907,  §  4739; 
ArTcansas,  Kirby's  Dig.  St.  1904,  §§ 
5040-5043;  District  of  Coiumbia  Code 
1901,  §  1229;  lotoa  Code  1897,  §  2993; 
Kansas  Gen.  St.  1905,  §§  4074,  4078; 
KentucTcy  St.  1903,  §  2324;  Maine 
Rev.  St.  1903,  c.  86,  §  11;  Mississippi 
Code  1906,  §§  2832,  2838;  Missouri 
Rev.  St.  1899,  §  4115;  Oklahoma  Rev. 
St.  1903,  §  3343;  Tennessee,  Shan- 
non's Code  1896,  §  5301;  Utah  Comp. 
Laws  1907,  §  1409;  Virginia  Code 
1904,  §  2490. 

zo2b  Florida  Gen.  St.  1906,  §  2240; 
Georgia,  Code  1895,  §§  2797,  2800; 
Kentucky  St.  1903,  §  2324;  Texas 
Rev.  St.  1895,  arts.  3240,  3252;  Vir- 
ginia Corle  1904,  §  2496. 

392c  District  of  Columhia  Code 
1901,  §  1229:  Tennessee,  Shannon's 
Code  1896,  §  5301. 


392d  Georgia  Code  1895,  §  2800. 
See  Mackenzie  v.  Flannery,  90  Ga. 
590,  16  S.  E.  710. 

3926  South  Carolina  Code  1902,  § 
3057. 

392f  Thompson  v.  Mead,  67  111.  395; 
Kern  v.  Noble.  57  111.  App.  27;  Frink 
V.  Pratt,  130  111.  327,  22  N.  E.  819; 
Petry  v.  Randolph,  85  Ky.  351,  3  S. 
W.  420.  Compare  Price  v.  Roetzell, 
56  Mo.  500;  Hubbard  v.  Moss,  65  Mo. 
647,  as  to  the  propriety  of  an  at- 
tachment to  enforce  the  lien.  In 
Georgia  a  statute  was  held  to  pro- 
vide by  implication  for  the  enforce- 
ment of  the  lien  by  distress,  it  pro- 
viding that  it  should  not  be  enforced 
by  distress  till  the  rent  was  due. 
Worrill  v.  Barnes,  57  Ga.  404;  Col- 
clough  V.  Mathis,  79  Ga.  394,  4  S.  E. 
702. 

392ffLord  V.  Johnson.  120  111.  App. 
55. 

392h  Knox  V.  Heliums,  38  Ark.  413. 
See  ante,  at  note  376. 


§321 


STATUTORY  LIENS.  lS5o 


vides  a  method  for  the  enforcement  of  the  lien,  this  is  not 
ordinarily  regarded  as  exclusive,^^^  and  there  are  a  number  of 
cases  in  which  its  foreclosure  by  a  proceeding  in  equity,  or 
the  statutory  substitute  therefor,  has  been  upheld  ;'^^^  and  the 
landlord  has  been  regarded  as  entitled  to  maintain  a  proceeding 
in  equity  to  reach  the  proceeds  of  the  resale  of  the  property  by 
one  who  purchased  from  the  tenant.^^^  It  has  been  said  that  if 
the  tenant's  title  to  the  property  is  equitable  only,  the  lien  must 
be  enforced  in  equity ;3»6  and  the  fact  that  the  tenant's  death 
renders  the  proceeding  by  attachment  unavailable  has  been  re- 
ferred to  as  rendering  that  by  foreclosure  in  equity  peculiarly  ap- 
propriate.^^^ 

In  one  state  it  has  been  said  that  the  statutory  provision  for 
a  distress  warrant  is  intended  merely  as  a  simple  mode  of  enabl- 
ing the  landlord  to  hold  the  property  until  he  can  have  a  fore- 
closure of  his  lien.398 

(4)  In  collateral  proceeding.  The  landlord  may  assert  his 
lien  and  obtain  satisfaction  of  his  claim  without  instituting  a  sep- 
arate proceeding  for  this  purpose,  when  the  property,  or  the  pro- 
ceeds thereof,  are  in  the  custody  of  the  court,  as  the  result  of  a 
proceeding  instituted  by  a  third  person.  For  instance,  if  the 
property  has  been  attached  by  a  third  person,^^^   or  has  been 

393  See  Staber  v.  Collins,  124  Iowa,  landlord's  right  to  maintain  a  bill 
543,  100  N.  W.  527,  as  to  the  right  to  in  equity  to  enforce  payment  of  his 
levy  a  general  execution  against  the  claim  from  the  proceeds  of  sales 
tenant  upon  property  subject  to  the  under  attachments  levied  by  others 
lien  which  has  passed  to  a  purchaser  was  upheld.  To  the  same  effect,  see 
for  value,  the  statute  providing  for  Slack  v.  Koon,  18  Ky.  Law  Rep. 
the    enforcement    of    the    landlord's  1103.  39  S.  W.  26. 

lien  by  attachment.  305  Reavis  v.  Barnes,  36  Ark.  575; 

394  Westmoreland  v.  Foster,  60  Anderson  &  Co.  v.  Bowles,  44  Ark. 
Ala.   448;    Carmen  v.  Alabama   Nat.    108. 

Bank,  101  Ala.  189,  13  So.  581;  Dick-  sog  Bingham     v.     Vandergrift,     93 

enson  v.  Harris,  48   Ark.   355,   3    S.  Ala.  283,  9  So.  280. 

"W.  58;  Newman  v.  Greenville  Bank,  397  Abraham  v.  Hall,  59  Ala.   386. 

66  Miss.  323,  5  So.  753;   Boiircier  v.  39s  McKee  v.  Sims,  92  Tex.  51,  45 

Edmondson,   58   Tex.   675;    Scoggins  S.  W.  664. 

v.  Thompson  (Tex.  Civ.  App.)   45  S.  399  Smith  v.  Huddleston,  103   Ala. 

W.  216;    Jackson  v.  Corley,  30  Tex.  223,  15   So.   521;    Slack  v.   Koon.  18 

Civ.  App.  417,  70  S.  W.  570.     But  see  Ky.   Law   Rep.    1103,    39    S.    W.    26 

The  Richmond  v.  Cake,  1  App.  D.  C.  Sanders  v.   Ohlhausen,   51  Mo.  163 

447.     In    Carmen    v.    Alabama    Nat.  Sullivan  v.   Cleveland,   62  Tex.  677 

Banlt,  101  Ala.  189,  13  So.  581,  the  Ohio  v.  Shutt,  78  Tex.  375,  14  S.  W 


1956  LIENS  IN  FAVOR  OP  LANDLORD.  §  321 

levied  on  under  execution,^^"  the  landlord  may  demand  that  the 
amount  of  his  claim  be  first  paid  from  the  proceeds  of  sale,*<*^ 
and  he  has  a  like  right  when  the  property  has  passed  into  the 
hands  of  a  receiver,  an  assignee  for  creditors,  or  a  bankruptc} 
trtistee,4°2  or  in  case  of  a  sale  by  a  trustee  under  a  chattel  mort- 
gagee's j^nd  a  landlord  who  was  his  tenant's  executor  has  been 
regarded  as  entitled  to  hold  the  amount  of  his  lien  out  of  the 
proceeds  of  a  sale  made  by  him  of  the  property .^'^* 

In  one  jurisdiction  it  has  been  held  that  the  landlord  may  as- 
sert his  lien  in  a  replevin  suit  instituted  by  another  to  which  h'^ 
is  made  a  party  ;4<^5  and  in  the  same  jurisdiction  it  was  held  that 
he  may  intervene  in  such  a  suit  to  assert  his  claim,  even  though 
the  defendant  in  the  suit  is  a  sheriff  in  possession  under  an  in- 
valid attachment  issued  by  the  landlord.^"^ 

(5)  Before  maturity  of  claim.  In  a  number  of  jurisdictions 
the  statute  authorizes  the  institution  of  a  proceeding  to  enforce 
the  lien  even  before  the  maturity  of  the  claim  secured  thereby, 
in  case  the  tenant  is  about  to  remove  or  dispose  of  the  property 
subject  to  the  lien,  so  as  to  endanger  the  landlord's  security  or, 
occasionally,  in  case  he  has  already  done  so.^'^^     In  one  state  the 

860,  22  Am.  St.  Rep.  56;  Carmen  v.  of   the    property   subject   to    a   lien 

Alabama   Nat.   Bank,    101  Ala.    189,  could  be  reached  by  garnishment. 

13  So.  581.  ■^o^  Bryan   v.   Sanderson,   10   D.  C. 

400  Gibson  v.  Gautier,  12  D.  C.   (1  (3  MacArthur)   431. 

Mackey)    35;    Harris  Bros.   v.   Dam-  ^oi  Smith's      Adm'r     v.      Bryant's 

mann,  14  D.  C.  (3  Mackey)  90;  Wilkes  Adm'r,  60  Ala.  235. 

V.  Adler.  68  Tex.  689,  5   S.  W.  497;  405  Edwards   v.    Cottrell,   43    Iowa, 

Governor  v.  Bancroft,  16     Ala.  605.  194. 

401  See  ante,  at  note  171.  406  Hipsley  v.  Price,  104  Iowa,  282. 

402  Lemay    v.     Johnson,     35    Ark.  73  N.  W.  584. 

225;    Loth   v.   Carty,    85   Ky.    591,    4  ^oi  Alaliama     Code    1907,    §§    4739. 

S.  W.  314;   Worthington  V.  Covington  4748;     Arkansas,    Kirby's    Dig.    St. 

Roller  Skating  Rink  Co.,  10  Ky.  Law  1904,    §    5040;    District   of  Columbia 

Rep.    363;    Rosenberg   v.    Shafer,   51  Code    1901,    §    1229;    Georgia    Code 

Tex.    134.     In    McKleroy   v.    Cantey,  1895,  §§  2797,  2800;   Illinois,  Kurd's 

95  Ala.  295,  11  So.  258,  it  was  held  Rev.   St.   1905,   c.    80,   §    33;    Kansas 

that,  in  view  of  a  statutory  provi-  Gen.    St.    1905,    §    4077;    Tennessee, 

sion  authorizing  the  enforcement  of  Shannon's  Code  1896,  §  5301;  Texas 

the  lien  by  attachment  in  case  the  Rev.  St.  1895,  arts.  3240,  3252;   Utah 

tenant  made  an  assignment  for  the  Comp.  Laws  1907,  §   1409;    Yirginia 

benefit  of  creditors,  the  proceeds  of  Code  1904,   §   2496. 
a  sale  by  the  assignee  for  creditors 


s  321  STATUTORY  LIENS.  1957 

landlord  may  proceed  to  enforce  the  lien  whenever  other  legal 
process  is  enforced  against  the  property .■*<^8 

Unless  the  circumstances  are  such  as  to  bring  the  case  within 
one  of  these  statutory  provisions,  no  proceeding  can  be  instituted 
to  enforce  a  lien  for  rent  not  due;^"^  and  a  statute  authorizing 
an  attachment  if  the  tenant  is  about  to  remove  his  property  does 
not  authorize  it  after  he  has  removed  it.^^^  In  the  absence  of 
such  a  statute,  the  remedy  of  the  landlord  to  prevent-  removal 
of  the  property  before  maturity  of  the  claim  has  been  decided  to 
be  by  injunction.'^ii  Such  a  statute,  providing  that  if  the  ten- 
ant removes  the  property  the  landlord  may  commence  an  action 
and  sue  out  an  attachment,  has  been  held  to  authorize  an  action 
for  conversion  and  the  levy  of  an  attachment  in  aid  thereof.'*^* 

The  feeding  of  crops  to  stock  has  been  held  to  be  a  removal  of 
the  crops  within  such  a  statute.'*^^ 

A  demand  for  the  payment  of  the  rent  is  not  a  prerequisite  to 
the  enforcement  of  the  lien,  on  the  ground  of  the  removal  of  the 
property,  before  the  maturity  of  the  rent,  since  there  is  obviously 
no  right  to  demand  what  is  not  due.^^^ 

(6)  Affidavit  and  bond.  As  elsewhere  shown,  '^'^^  the  statutes, 
in  authorizing  an  attachment  in  favor  of  the  landlord,  ordinarily 
require  as  a  prerequisite  the  filing  of  an  affidavit,  showing  the 
existence  of  circumstances  justifying  an  attachment,  and  also  a 
bond  conditioned  that  the  landlord  will  pay  damages  on  account 
of  the  wrongful  procurement  of  the  writ,  and  occasionally  such 
a  requirement  is  found  directly  in  conjunction  with  the  provi- 
sions for  the  enforcement  of  the  lien  by  attachment.^^^ 

408  Georgia  Code  1895,  §§  2797,  thority  for  attachment  to  enforce 
2800.  the   rent   before   the   rent  was   due, 

409  Nicrosi  v.  Roswald,  113  Ala.  an  attachment  before  the  maturity 
592,  21  So.  338;  Marsalis  v.  Pitman,  of  the  rent  must  be  regarded  as  a 
68  Tex.  624,  5  S.  W.  404.  See  Has-  general  attachment,  giving  the  land- 
eltine  v.  Ausherman,  87  Mo.  410;  lord  no  preference  over  a  mortgage 
Knowles  v.  Sell,  41  Kan.  171,  21  Pac.  prior  to  the  attachment. 

102.  412  Tarpy  v.  Persing,  27  Kan.  745. 

4ioWallach   v.    Chesley,   13    D.   C.  4i3  Hopkins  v.  "Wood,  79   111.  App. 

(2  Mackey)   209.  484. 

411  See     Garner     v.     Cutting.     32  4i4  Vaughn  v.   Strickland,  108  Ga. 

Iowa,  547;  Clark  v.  Haynes,  57  Iowa,  659,   34  S.  E.  192. 

96,  10  N.  W.  292,  and  ante,  note  3G3.  4i5  See  post,   §   348. 

In    the    latter    case    it    was    decided  us  Alabama    Code    1907,    §§    4740, 

that  as  there  was  no  statutory  au-  4749;     Arkansas,    Kirby's    Dig.    St. 


1958  LIENS  IN  FAVOR  OF  LANDLORD.  §  321 

An  affidavit  wliicli  fails  to  show  the  statutory  prerequisites  to 
the  issuance  of  the  attachment  is  insufficient,  though  in  at  least 
one  state  such  an  affidavit  is  amendable.^^"  If  the  statute  pro- 
vides for  an  attachment  after  nonpayment  of  the  rent  on  demand, 
the  affidavit  must  show  such  demand,-*^^  If  it  provides  for  an  at- 
tachment on  removal  of  the  property  without  the  landlord's  con- 
sent, it  must  negative  that  consent,^^^  and  an  affidavit  for  an  at- 
tachment on  the  ground  that  the  landlord  has  reason  to  believe 
that  the  tenant  is  about  to  dispose  of  the  property  should  ordi- 
narily, it  seems,  state  the  grounds  of  such  belief.^^o  ^j^  affidavit 
for  an  attachment  to  enforce  a  lien  for  advances  should  state  the 
nature  and  purpose  of  the  advances,  so  as  to  bring  the  case  within 
the  statute.'*^^  An  affidavit  that  the  tenant  has  moved  a  part  of  the 
crop  grown  on  the  rented  premises  will,  it  has  been  decided,  not 
justify  an  attachment  under  a  provision  authorizing  it  when  the 
tenant  has  removed  a  part  of  the  crop  from  the  premises.^^^ 

(7)  Parties.  To  a  proceeding  of  an  equitable  nature  to  fore- 
close the  lien,  all  persons  claiming  any  interest  in  the  property 
subject  should  be  made  parties.^^s  n  seems  doubtful  whether  it 
is  necessary  to  make  the  tenant  a  party,  if  he  has  disposed  of  his 
interest  in  the  property  to  one  who  is  made  a  party. "^-^  And  it 
has  been  decided  to  be  unnecessary  to  make  the  original  lessor  a 
party  to  a  proceeding  by  a  transferee  of  the  reversion.'*24a  j^ 
the  case  of  an  attachment  to  enforce  the  lien-  it  is  not  necessary, 
it  appears  to  have  been  decided,  to  make  a  mortgagee  of  the  prop- 
erty subject  a  party  to  the  attachment  proceeding,  in  order  to 

1904,  §  5041;  Kansas  Gen.  St.  1905,  42i  Ballard    v.    Stephens,    92    Ala. 

§   4077;    Tennessee,   Shannon's   Code  616,  8  So.  416. 

1896,    §    5304;    Texas  Rev.   St.   1895,  422Baxley  v.  Segrest,  85  Ala.  183, 

art.    3241;    Utah   Corap.   Laws    1907,  4  So.  865. 

§  1411;  Virginia  Code  1904,  §  2406.  423  Templeman     v.     Gresham,     61 

417  Richards  v.  Bestor,  90  Ala.  352.  Tex.  50;  Jackson  v.  Corley,  30  Tex. 
8   So.  30;    McDougal   v.   Sanders,  75  Civ.  App.  417,  70  S.  W.   570. 

Ga.   140.  424  In  Gill  v.  Buckingham,  7  Kan. 

418  Robinson  v.  Holt,  85  Ala.  596,  App.  227,  52  Pac.  897,  it  is  decided 
5   So.   850.  that    the    landlord    need    not    make 

419  Robinson  v.  Holt,  85  Ala.  596,  the  tenant  a  party  to  an  action 
5  So.   850.  against  a  purchaser.    But  this  seems 

420  Baum  v.  Bell,  28  S.  C.  201,  5  to  have  been  an  action  for  dam- 
S.    E.    485:    Sharp  v.   Palmer,   31   S.  ages. 

C.  444.  10  S.  E.  98,  17  Am.  St.  Rep.        424a  Kennard    v.    Harvey,    80    Ind. 
40.     See    Monday   v.    Elmore,   27   S.    27. 
C.  126,  3  S.  E.  65. 


,  391  STATUTORY  LIENS.  1959 

enable  the  officer  to  take  the  property  from  the  mortgagee's  pos- 

SGSSIOH. 

It  has  been  decided  that  an  action  against  a  tenant  for  rent  and 
one  to  foreclose  the  lien  may  be  joined  with  one  against  other 
panics,  claiming  under  a  mortgage  from  the  tenant,  for  conver- 
sion of  the  property  subject  to  the  lien.426 

(8)  Judgment.  In  a  statutory  proceeding  to  enforce  the  lien, 
the  landlord  cannot,  it  has  been  decided  in  one  state,  have  a 
general  judgment  on  his  claim  against  the  tenant,  but  only  a 
judgment  establishing  the  lien  5^27  and  in  another  state  it  has  been 
decided  that  he  cannot  have  a  personal  judgment  on  his  claim 
against  the  tenant,  in  excess  of  the  value^  of  the  property ,^28 
though  he  may  have  a  judgment  for  costs.'^^g 

m.  Persons  interfering  with  property  subject— Pecuniary  lia- 
bility. In  a  very  considerable  number  of  cases  the  courts  have 
asserted  a  right  in  the  landlord  to  maintain  an  action  against  a 
third  person  who,  by  purchase  or  removal  of  the  property  sub- 
ject to  the  lien,  interferes  with  the  effectiveness  of  the  landlord's 
security.  The  exact  theory  on  which  this  right  of  action  is  to 
be  regarded  as  based,  and  the  exact  limitations  upon  the  applica- 
tion of  the  doctrine,  do  not  clearly  appear  from  the  decisions. 
In  a  few  jurisdictions  there  are  statutory  provisions  authoriz- 
■  ing  the  recovery  by  the  landlord  of  damages  from  one  purchasing 
the  crop.430     guch  a  statute  has  been  regarded  as  applicable  even 

425  Brody  V.  Cohen,  106  Iowa,  309.  entitled   to  rent  may  recover  from 
76  N    W    682  <^lie    purchaser    of   the    crop    or  any 

426  Cardwell      v.      Masterson,      27  part  thereof  with  notice  of  the  lien 
Tex    Civ    App    591,  66  S.  W.  121.  the  value  of  the  crop  purchased,  to 

427  Argo  v    Fields,  112  Ga.  677,  37  the  extent  of  the  rent  due  and  dam- 
g    J,    995  ages);    Missouri    Rev.    St.    1899,    § 

'428Hartsell  v.  Myers,  57  Miss.  135.    4123     (the    person    buying    a    crop 

429  Burrow  v.  Sanders,  57  Miss,  grown  on  demised  premises  on 
^^^  which   rent    is    unpaid   with    knowl- 

430  District  of  Columbia  Code  1901,  edge  that  it  was  grown  on  demised 
5  1230  (the  lien  may  be  enforced  premises  liable  to  the  landlord  for 
"by  action  against  any  purchaser  of  its  value);  Tennessee,  Shannons 
said  chattels,  with  notice  of  the  lien.  Code  1896,  §  5302  (the  person  en- 
in  which  the  plaintiff  may  have  titled  to  the  rent  may  recover  from 
judgment  for  the  value  of  the  chat-  the  purchaser  of  the  crop  or  any 
tels  purchased  by  the  defendant  not  part  of  it,  the  value  of  the  prop- 
exceeding  the  rent  in  arrear") ;  Kan-  erty,  so  that  it  does  not  exceed  the 
sas  Gen   St.  1905.  §  4076  (the  person    amount  of  the  rent  and  damages). 


1960 


LIENS  IN  FAVOR  OF  LANDLORD. 


§321 


though  no  judgment  has  been  recovered  against  the  tenant  on  the 
landlord's  claim,  and  though  such  claim  is  not  yet  due;^^!  and  as 
authorizing  an  action  by  an  assignee  of  a  note  given  for  rent>32 
With  reference  to  the  form  of  the  action  which  may  be  brought 
to  enforce  a  liability  of  this  character,  there  are  a  number  of  de- 
cisions to  the  effect  that  the  landlord,  not  having  the  right  of  pos- 
session, cannot  maintain  trover  against  a  person  obtaining  pos- 
session of  the  property  by  purchase  or  otherwise,  and  then  dis- 
posing of  it  or  converting  it  to  his  own  use;^"^^  and  it  is  like- 
wise recognized  that  he  cannot  maintain  trespass  ''^^  or  detinue.^^^ 
There  are  a  number  of  decisions,  on  the  other  hand,  asserting  his 
right  to  maintain  an  action  on  the  case  for  the  damage  caused 
to  him  by  interference  with  his  security >^^     There  are  also  quite 


431  Richardson  v.  Blakemore,  79 
Tenn.    (11  Lea)    290. 

«2  Biggs  V.  Piper,  86'  Tenn.  589,  8 
S.  W.  851. 

433  Hudson  V.  Vaughan's  Ex'rs,  57 
Ala.  609;  Corbitt  v.  Reynolds,  68 
Ala.  378;  Baker  v.  Cotney,  142  Ala. 
566,  38  So.  131,  110  Am.  St.  Rep.  50; 
Worrill  v.  Barnes,  57  Ga.  404;  Watt 
V.  Scofield,  76  111.  261;  Frink  v. 
Pratt,  130  111.  327,  22  N.  E.  819; 
Finney  v.  Harding,  136  111.  573,  27 
N.  E.  289,  12  L.  R.  A.  605,  29  Am.  St. 
Rep.  334.  Compare  cases  cited  post, 
note   449. 

It  seems  to  be  the  law  in  Illinois 
that  if  a  third  person  converts  the 
property  after  the  levy  of  a  distress 
warrant,  the  landlord  may  sue  in 
trover.  Mead  v.  Thompson,  78  111. 
62,  and  see  Finney  v.  Harding,  138 
111.  573,  27  N.  E.  289,  12  L.  R.  A.  605, 
29  Am.  St.  Rep.  334;  Frink  v.  Pratt, 
130   111.   327,   2  N.   E.  819. 

4S4  Thompson  v.  Spinks,  12  Ala. 
155;  Hudson  v.  Vaughan's  Ex'rs,  57 
Ala.  609;  Hussey  v.  Peebles,  53  Ala. 
432;  Peebles  v.  Lassiter,  33  N.  C.  (11 
Ired.  Law)  73;  Baker  v.  Cotney,  142 
Ala.  566,  38  So.  131,  110  Am.  St. 
Rep.  50. 


435  Thompson  v.  Spinks,  12  Ala, 
155;  Hudson  v.  Vaughan's  Ex'rs,  57 
Ala.  609. 

436  Hussey  v.  Peebles,  53  Ala.  432; 
Hudson  V.  Vaughan's  Ex'rs,  57  Ala. 
609;  Lavender  v.  Hall,  60  Ala.  214; 
Thompson  v.  Powell,  77  Ala.  391; 
Shepherd  v.  Taylor,  105  Ala.  507,  17 
So.  88;  Baker  v.  Cotney,  142  Ala. 
566,  38  So.  131,  110  Am.  St.  Rep.  50; 
Harvey  v.  Hampton,  108  111.  App. 
501;  Dunn  v.  Kelly,  57  Miss.  825; 
Cohn  V.  Smith,  64  Miss.  816,  2  So. 
244.  In  Illinois  the  right  of  action 
is  said  to  be  in  case  and  to  be  based 
on  the  "fraudulent  act"  of  the  de- 
fendant intended  to  impair  the  lien. 
Watts  V.  Scofield,  76  111.  261;  Finney 
V.  Harding,  136  111.  573,  27  N.  E.  289, 
12  L.  R.  A.  605,  29  Am.  St.  Rep.  334. 
In  King  v.  Henderson,  142  Ala.  460. 
38  So.  118,  it  is  apparently  decided 
that  such  an  action  could  not  be 
maintained  against  one  interfering 
with  an  article  advanced,  for  the 
value  of  such  article,  for  which  the 
statute  gives  a  lien  on  it,  unless  the 
landlord  states  the  price  at  which  it 
was  furnished  by  the  landlord  to  the 
tenant. 


»  321  STATUTORY  LIENS.  1961 

numerous  decisions  in  which  his  right  of  action  is  asserted,  with- 
out naming  any  particular  form  of  action,  owing,  ordinarily,  to 
the  abolition,  in  the  particular  jurisdiction,  of  the  common-law 
distinctions  in  this  regard.-*" 

The  right  of  the  landlord  to  maintain  assumpsit  against  the 
person  thus  interfering  with  his  lien  has  been  explicitly  denied 
in  several  cases,*38  but  there  are  decisions  to  the  effect  that  he 
may  maintain  such  action  as  for  money  had  and  received  against 
one  who  having  obtained  possession  of  the  property,  has  disposed 
thereof  and  refused  to  account  for  the  amount  of  the  landlord  s 
claim  from  the  proceeds,'*39  ^  being  considered  that  he  has  re- 
ceived money  which  in  justice  and  equity  belongs  to  the  landlord. 
Assumpsit  will  lie,  it  has  been  decided,  in  favor  of  the  landlord 
a-ainst  a  purchaser  of  the  crop,  or  other  person  who  has  taken 
possession  of  the  crop,  if  the  former  is  induced,  by  statements 
made  by  the  latter,  to  refrain  from  taking  legal  measures  to  en- 
force his  claim  against  the  crop;^^«  and  such  an  action  will  also 

-437  Merchants'  &  Planters'  Bank  v.    55  Ala.  266;  Thornton  v.  Strauss   79 
Meyer,   56  Ark.   499,  20   S.  W.  40G;    Ala.  164;  Barnett  v.  Warren,  82  Ala 
Stokes  V.  Gillis.  81  Ga.  187,  6  S.  E.    557.  2  So.  457;  Ehrman  v.  Oates^lOl 
fS;    Saulshury  v.  McKellar,  59  Ga.    Ala.  604.  14  So.  361;   Crane  .  Mur- 
301;  Kennard  v.  Harvey,  80  Ind.  37;    ray,  106  Mo.  APP.  69.    80  S-  W.  280 
Holden  T.  Cox,  60  Iowa.  449,  15  N.    Sugg  v.  Farrar,  107  N.  C.  123,  12  S 
W   2G9-  Frorerv.  Hammer.  99  Iowa,    E.  236.     Contra.   Blum  v.  Jones.   51 
48    68  N.  W.  564;  Cohn  v.  Smith.  64    Ala.  149,  3  Am.  Rep.  d45;  R^^^i^J^- 
Miss   816    2  So.  244;  Eason  v.  John-   Barnes.  36  Ark.  575;  Anderson  &  Co. 
son,  69  Miss.  371.  12  So.  446;  White   v.  Bowles.  44  Ark^l08 
T.  McAllister,  67  Mo.  App.  314;  Dar-        In    Drake    v.    Whaley     35    S^   a 
by  V   Jorndt,  85  Mo.  App.  274;  Thig-    187.  14  S.  E.  397.  it  was  held  that  as- 
pen V.  Maset.  107  N.  C.  39,  12  S.  E.    sumpsit  as  for  money  ^^d  and  r^ 
272-   Graham  v.  Seignious.  53  S.  C.    ceived  lies  m  favor  of  the  land.ord 
139'  31  S    B    51;   Boydston  v.  Mor-   against  a  cotton  factor  who.  having 
ris"  71  Tex   697,  10  S.  W.  331;  Zapp    sold   the   crop,   refuses,   in   spite   of 
V  Johnson.  87  Tex.  641.  30  S.  W.  861.    instructions  from  the  tenant,  to  ap- 
'43vBror-hton   v.   Powell.    52    Ala.    ply  the  proceeds  in  discharge  of  tho 
103.  worrill  v.  Barnes,  57  Ga.  404;    landlord's    claim.     It    does    not    ap- 
Ballantine    v.    Greer,    14    Tenn.    (G    pear  whether  the  court  would  have 
Ye  g  )    267      in  Carter  v.  Andrews,    sustained  the  action  if  hased  on  the 
56  111.  App.  646.  the  action  appears   lien  alone  and  not  on  the  tenants 
to  have  been  in  assumpsit,  but  no   instructions. 

4.,9  Westmoreland     v.     Foster,     60    301:   Shealey  v.  Clark,  117  Ga.  794, 
Ala.   448;     Booker  v.   Jones'   Adm'r.    45  S.  E.  70. 


1962  LIENS  IN  FAVOR  OF  LANDLORD.  §321 

lie,  it  seems,  if  such  person  promises  to  pay  the  landlord's  claim 
from  the  proceeds  of  the  crop,  in  consideration  of  the  latter 's 
consent  to  its  removal.'^^i 

There  are  occasional  decisions  in  which  a  right  in  the  landlord 
to  proceed  in  equity  against  the  proceeds  of  the  resale  of  the  prop- 
erty in  the  hands  of  the  original  purchaser  has  been  recognized.'*^^ 
This  view  is  also  involved,  it  would  seem,  in  the  decisions  before 
referred  to,  asserting  the  landlord's  right  of  recovery  as  for 
money  had  and  received.^^^ 

As  to  the  character  of  the  act  which  will  render  a  third  person 
liable  in  damages  to  the  landlord  as  for  a  tort,  the  cases  are  by 
no  means  explicit.  In  many  of  them  the  language  of  the  opinion 
suggests  that  the  mere  act  of  purchasing  property  on  which  the 
landlord  has  a  lien  constitutes  a  tort  as  against  the  latter,^44 
but  it  does  not  seem  that  he  should  be  entitled  to  even  nominal 
damages  if  the  sale  and  purchase  of  the  property  in  no  way  af- 
fects his  ability  to  enforce  his  lien,  and  there  is  at  least  one  de- 
cision to  this  effect.^^5  In  some  cases  it  appears  that  the  per- 
son held  liable  in  damages  had  refused  to  pay  to  the  landlord  the 
amount  of  the  latter 's  claim,-*46  qj.  ^q  yield  up  possession  of  the 
crop  or  other  chattels  upon  demand  by  the  latter,  ^^"^  but  the  de- 
cisions usually  make  no  particular  reference  to  this  fact.^^^  In 
some  he  is  said  to  be  liable  as  having  converted  the  property  to 

441  McCarty  v.  Roswald,  105  Ala.  v.  Aikins,  65  Kan.  82,  68  Pac.  10S8 
511,  17  So.  120.  447  Shepherd    v.    Ta3^!or,    105    Ala. 

442Ehrman  v.   Oats,  101  Ala.  604,  507,    17    So.   88;    Holden  v.    Cox,    60 

14  So.  361;   King  v.  Blount,  37  Ark.  Iowa,  449,  15  N.  W.  269;    Evans   v. 

115;    Anderson  &  Co.   v.   Bowles,  44  Collins,  94  Iowa,  432,  62  N.  W.  810; 

Ark.  108.  Blake  v.  Counselman,  95   Iowa,  219, 

443  See  ante  at  note  439.  63   N.  W.  679;   Sugg  v.  Farrar,   107 

444  See  Cohn  v.  Smith,  64  Miss.  N.  C.  123,  12  S.  E.  236;  Parks  v. 
816,  2  So.  244.  Laurens  Cotton  Mills,  70  S.  C.  274, 

445  Ehrman  v.  Oats,  101  Ala.   604,  49  S.  E.  871. 

14  So.  361.     So  in  Jackson  v.  Corley,  448  Hudson  v.  Vaughan's  Ex'rs,  57 

30  Tex.  av.  App.  417,  70  S.  W.  570,  Ala.    609;     Nickelson    v.    Negley,    71 

it  is  said  that  a  purchaser  is  liable  Iowa,  546,   32  N.  W.   487;    Evans  v. 

if  he   makes   such    a   disposition    of  Collins,  94  Iowa,  432,  62  N.  W.  810; 

the  chattels  that  they  cannot  be  sub-  Thew  v.  Miller,  73  Iowa,  742,  36  N. 

jected  to  the  lien.  W.    771;    Hopper    v.    Haj'S.    82    Mo. 

446  Beck  V.  Minnesota  &  Western  App.  494;  Zapp  v.  Johnson,  87  Tex. 
Grain  Co.,  131  Iowa,  62,  107  N.  W.  641,  30  S.  "W.  861:  WR-d  v.  Gibbs,  10 
1032,  7  L.  R.  A.  (N.  S.)   930;   Stadel  Tex.  Civ.  App.  287,  30  S.  W.  1125.' 


§  321  STATUTORY  LIENS.  I953 

his  own  use,^^'>  by  which  is  meant,  perhaps,  no  more  than  that 
he  is  liable  to  the  landlord  in  an  action  on  the  case,  or  its  equiva- 
lent, by  reason  of  acts  of  a  character  which  would  at  common  law 
render  him  liable  in  trover  to  a  person  having  the  right  of  pos- 
session. Occasionally  reference  is  made  to  the  removal  of  the 
property  by  the  purchaser  as  a  ground  of  liability j^^*^  and  in  one 
decision  his  mingling  of  the  property  with  that  of  others,  so  as 
to  cause  it  to  lose  its  identity,  was  so  referred  to.^^^ 

Ordinarily,  the  person  on  whom  liability  has  thus  been  imposed 
for  interfering  with  the  landlord's  security  was  a  purchaser  with 
notice  of  the  lien  •,'^^^  and  in  one  state  it  has  been  explicitly  decided 
that  a  purchaser  without  notice  is  not  so  liable,^^^  ^  view  which 
would  ordinarily  be  adopted  in  jurisdictions  in  which  a  purchaser 
without  notice  takes  free  from  the  lien.-*'''^  By  other  decisions  a 
purchaser  even  without  notice  has  been  regarded  as  liable.'*^^ 

In  some  cases  the  right  of  action  by  the  landlord  against  a  pur- 
chaser or  other  person  interfering  with  the  lien  has  been  regarded 

449  Kennard  v.  Harvey,  80'  Ind.  453  Worrill  v.  Barnes,  57  Ga.  404; 
37;  Campbell  v.  Bowen,  22  Ind.  App.  Lancaster  v.  Whiteside,  108  Ga.  801, 
562,  54  N.  E.  409;  Taylor  v.  Felder,  33  S.  E.  995;  Finney  v.  Harding,  136 
5  Tex.  Civ.  App.  417,  23  S.  W.  480,  111.  573,  27  N.  E.  289,  12  L.  R.  A. 
24  S.  W.  313.  In  Church  v.  Bloom,  605,  29  Am.  St.  Rep.  334;  Scully  v. 
Ill  Iowa,  319,  82  N.  W.  794,  it  is  Porter,  57  Kan.  322,  46  Pac.  313. 
even  said  that  "it  is  elementary  454  See  ante,  §  321  f  (3)  (a), 
that  one  having  a  lien  on  property  455  Richardson  v.  Peterson,  58 
may  sue  for  its  conversion."  Iowa,    724,    13    N.   W.    63;    Blake    v. 

450  Kelly  V.  Eyster,  102  Ala.  325,  Counselman  &  Co.,  95  Iowa,  219,  63 
14  So.  657;  Hussey  v.  Peebles,  53  N.  W.  679;  Frorer  v.  Hammer,  99 
Ala.  432.  Or  to  a  removal  to  and  Iowa,  48,  68  N.  W.  564;  Evans  v.  Col- 
sale  in  a  foreign  market.  Kennard  lins,  94  Iowa,  432,  62  N.  W.  810. 
V.  Harvey,  80  Ind.  37.  The    statutory    right    of    action    in 

451  Campbell  v.  Bowen,  22  Ind.  Tennessee  (ante,  note  430)  is  in- 
App.  562,  54  N.  E.  409.  dependent   of   whether  the   purchas- 

452  Thornton  v.  Strauss,  79  Ala.  er  had  notice.  Davis  v.  Wilson,  86 
164;  Kelly  v.  Eyster,  102  Ala.  325,  Tenn.  519,  8  S.  W.  151.  In  Eason 
14  So.  657;  Harvey  v.  Hampton,  108  v.  Johnson,  69  Miss.  371,  12  So.  446, 
111.  App.  501;  Stndel  v.  Aikens,  65  it  was  held  that  the  purchaser's  ig- 
Kan.  82,  68  Pac.  1088:  White  v.  Mc-  norance  that  the  rent  was  due  and 
Allister  Co.,  67  Mo.  App.  314;  Dunn  unpaid  was  no  defense.  In  Ken- 
V.  Kelly,  57  Miss.  825;  Cohn  v.  nard  v.  Harvey,  80  Ind.  37,  it  is 
Smith,  64  Miss.  816,  2  So.  244;  said  that  the  purchaser  is  charged 
Merchants'  &  Planters'  Bank  v.  Mey-  with  notice  of  the  lien.  See  ante, 
er,  56  Ark.  499,  20  S.  W.  406.  §  321  f  (2)    (b). 


1964  LIENS  IN  FAVOR  OF  LANDLORD.  §  322 

as  based  on  tlie  continued  existence  of  the  lien,  so  as  to  render 
it  necessary  to  commence  the  action  before  the  end  of  the  period 
named  by  the  statute  for  the  duration  of  the  lien.^ss  in  other 
cases  it  has  been  considered  that,  provided  the  right  of  action  on 
account  of  interference  with  the  lien  is  complete  before  the  ex- 
piration of  the  lien,  it  may  be  enforced  at  a  subsequent  time.*^'^ 

The  landlord  has  no  right  of  action  for  damages  on  account  of 
the  purchase  or  appropriation  of  the  property  by  a  third  person, 
if  he  consented  thereto.^^^ 

It  is  no  defense  to  the  ,action  by  the  landlord  that  he  had  no 
title  to  the  land  at  the  time  of  making  the  lease.'^^^  Nor,  it  has 
been  decided,  that  the  tenant  being  solvent,  the  landlord's  claim 
could  still  be  collected.^^*' 

The  quantnm  of  recovery  in  an  action  of  this  character  is  the 
amount  of  the  landlord's  loss  by  reason  of  the  impairment  of  his 
security,  and  it  is  recognized  as  being  equal  to  the  value  of  the 
property  which  has  been  purchased  or  removed,  unless  this  ex- 
ceeds the  amount  of  the  landlord's  claim,  in  which  case  it  is  for 
the  amount  of  such  claim.'*^^ 

§  322.     Convsntional  liens. 

a.     Form  of  stipulation  for  lien.     Stipulations  having  for  their 

A  surety  on  a  note  made  by  the  419;    McCarty  v.  Roswald,   105  Ala. 

tenant  is  not  liable  in  damages   to  511,  17  So.  120;    Cobn  v.  Smith,   64 

the     landlord     because     the    tenant  Miss.  S16,  2  So.  244;  Wimp  v.  Early, 

sold    the    property    subject    to    the  104  Mo.  App.  85,  78  S.  W.  343.     See 

lien   and  with  the  proceeds  of  sale  ante,   §  321  1   (4). 

paid  the  note,  the  surety  not  parti-  459  Kelly  v.  Eyster,   102  Ala.   325 

cipating    in   the   transaction.     Over-  14  So.  657;  Wright  v.  Davis,  29  Tex. 

holser  v.  Christensen,  133  Iowa,  129,  Civ.  App.  118,  68  S.  W.  181. 

110  N.  W.  321.  460  Shealey  v.   Clark,   117  Ga.   794, 

456  Valentine  v.   Hamlett,   35  Ark.  45  S.  E.  70. 

538;    King  v.   Blount,   37   Ark.   115;  46i  Atkinson  v.  James,  96  Ala.  214, 

Anderson  &  Co.  v.  Bowles,  44  Ark.  10  So.   846;    Carter  v.   Andrews,   50 

108;    Nickelson  t.  Negley,  71  Iowa,  111.  App.   646;    Harvey  v.  Hampton, 

546,  32  N.  W.  487.  108  111.  App.  501;  Dawson  v.  Coffey, 

457Belshe  v.  Batdorf,  98  Mo.  App.  48  Mo.  App.  109;   White  v.  McAllis- 

627,  73  S.  W.  888  (action  under  stat-  ter,  67  Mo.  App.  314;  Biggs  v.  Piper, 

ute) ;  Davis  v.  Wilson,  86  Tenn.  519,  86  Tenn.  589,  8  S.  W.  851;    Zapp  v. 

8  S.  W.  151    (action  under  statute);  Johnson,  87  Tex.  641,  30  S.  W.  861; 

Zapp  V.  Johnson,  87  Tex.  641,  30  S.  Ward  v.  Gibbs,  10  Tex.  Civ.  App.  287, 

W.  8Rr.  30  S.  W.  1125. 

458  Faith   V.    Taylor,   69    111.    App. 


»  322  CONVENTIONAL  LIENS.  1965 

object  the  creation,  in  favor  of  the  lessor,  of  a  lien  or  charge  iipou 
property  on  the  demised  premises  to  secure  the  payment  of  the 
rent,  or  of  advances  made  by  him  to  the  lessee,  take  various  fornis 
The'most  common  is  a  statement  merely  to  the  effect  that  a  "lien" 
is  created  upon  the  crops,  or  upon  the  chattels,  or  upon  the  fur- 
niture, as  the  case  may  be  j^cs  but  quite  frequently  what  is  m  effect 
a  lien  is  given  by  a  provison  that  the  ownership  or  the  title  to 
the  property  in  question  shall  be  vested  in  the  lessor  till  the  rent 
is  paid,  or  as  security  for  the  rent>«3     Occasionally,  there  is 
merely  a  provision  that  the  property  shall  not  be  removed  or  dis- 
posed of  by  the  lessee  till  the  debt  is  paid.^«^     In  several  cases 
a  provision  that  chattels  designated  shall  be  "bound"  for  the 
rent  has  been  regarded  as  effective  to  create  a  lien;^^^  and  it  is 
obvious  that  this  result  can  be  obtained  by  the  giving  by  the  les- 
see to  the  lessor  of  a  chattel  mortgage.'ico  .___J.:.. 

462  see  FOX  v.  McKinney.  9  Or.  464  Mitchell  v.  Badgett,  33  Ark. 
493-  Broders  v.  Bohannon,  30  Or.  387;  Albers  t.  Turley,  10  Colo.  App. 
^99'  48  Pac  692-  Smith  v.  Atkins,  450.  51  Pac.  530;  Weed  v.  Standley, 
18  Vt  461;  Pelton  v.  Draper.  61  Vt.  12  Fla.  166;  Ferguson  v.  Murphy 
qP4  17  Atl  494-  Gray  v.  Stevens,  28  117  Cal.  134,  48  Pac.  1018;  Marshall 
Vt  1  65  Am  Dec.  216;  Leland  v.  v.  Luiz,  115  Cal.  622,  47  Pac.  597; 
I  ,t7i   746  Felker  v.  Richardson.  67  N.  H.  509. 

'^^sTe  Howel    V.   Foster.   65   Cal.    32  Atl.  830.     In  PendiU  v.  Maas.  97 
169     3    Pac     647;     Summerville    v.    Mich.   215,    56   N.  W.   597.   a  provi- 
Stockton  Milling  Co.,  142   Cal.   529.   sion    that    buildings    and    improve- 
7     Pac    2f3     DeVaughn  v.  Howell,    ments  might  be  removed  by  the  les- 
82    Ga     336     9    S     E.    173.   14    Am.    see  on  paying  rents  and  taxes  was 
?t     Rep     162;     Dunning    v.    South,    regarded  as  giving  a  lien  to  secure 
62   in    175;    Kelley   v.   Goodwin.   95   such  payment,  and  to  the  same  effect 
Me   538.  50  Atl.  711;  Fowler  v.  Haw-   see  Ex  parte  Morrow.  1  Lowell.  386. 
kins   17  Ind.  211;  Whitcomb  v.  Tow-    Fed.  Cas.  No.  9,8d0. 
er53  Mass.   (12  Mete.)  487,  46  Am.        «5  Wright    v.    Bircher^    Ex'r.    72 
Sc   698    Grales  v.  Walter.  93  Minn.    Mo.  179.  37  Am.  Rep.  433;  Faxon  v. 
S)7   lOlN  W   297;    Agne  v.  Skewis-    Ridge,    87    Mo.   App.   299;    Smith  v. 
Mo;n   CO     7s   Minn.   32,  107  N.  W.    Taber.  46  Hun.  313.  14  N.  Y.  St  Rep^ 
ri5     Sanford  v.  Modine.  51  Neb.  728,    644.     So  when  it  was  provided  that 
N.  W.T40;  McCombs  V.  Becker.  3   the  crops  should  be  "held"    or  rent. 
Hun     (N      Y)     342;      Hawkins     v.    Buswoll  v.  Marshall,  51  Vt.  87 
B  akes    80  Hun,  292.  30  N.  Y.  Supp.        -c  See  Rogers  v  J     ^^an    31  Ark. 
qi    afd   150  N  Y.  562.  44  N.  B.  1124;     62;    Morris   v.    Tillson.    81    111.    607. 
John  on  V   Crofoot.  53  Barb.  (N.  Y.)    Harris  v.  Frank^52  M^-"  ^f  =  «- 
J?4     Smith    V    Atkins,   18   Vt.   461;    der  v.  Plass.  57  Hun  (N.  Y.)  540    11 
Paris  v   vail    18  Vt.  277;  Bellows  v.   N.  Y.  Supp.  226;  McCombs  v.  Becker. 
Wells.  36  Vt.  599.  86  Am.  Dec.  679.       3  Hun  (N.  Y.)  342. 


1956  LIENS  IN  FAVOR  OF  LANDLORD.  §  322 

It  has  been  decided  that  a  provision  that  the  proceeds  from  the 
sale  of  certain  products  of  the  leased  premises  shall  be  paid  to 
the  lessor  until  he  receives  the  amount  of  his  rent  does  not  give 
him  a  lien  on  such  products,^*^^  and  an  agreement  to  pay  rent  in 
corn  without  specifying  corn  produced  on  the  premises  has  been 
held  to  give  no  lien  on  such  corn.^*5s  j^  ^joes  not  seem  that  the 
effect  would  be  different  even  if  the  corn  produced  on  the  prem- 
ises were  specified.'*^^ 

A  provision  that  the  grain  raised  on  the  farm  leased  shall  be 
fed  out  thereon,  or  to  the  lessor's  cattle  included  in  the  lease,  has 
been  decided  to  give  the  lessor  no  title  or  lien  on  the  grain  ;'*'^'^  and 
a  like  decision  has  been  made  as  to  a  provision  that  the  lessee  shall 
not  dispose  of  the  produce  of  the  farm  until  the  rent  had  been 
paid,^'^^  or  without  the  landlord's  consent.-* '^^ 

The  fact  that  a  note  given  for  rent  states  that  it  constitutes  a 
lien  on  the  crop  raised  on  the  land  has  been  regarded  as  insuffi- 
cient to  make  it  such  a  lien.^'''^ 

An  agreement  by  the  lessee  to  deliver  a  certain  product  to  the 
lessor,  he  to  sell  it  and  retain  the  rent  out  of  the  proceeds,  has 
been  held  to  create  no  lien  on  that  not  delivered,  an  agreement  to 
pledge  not  being  equivalent  to  a  pledge.^'^^  Nor  does  an  agree- 
ment to  give  a  mortgage  to  secure  the  rent  create  a  lien.^'^s  j^ 
provision  of  the  lease  that,  in  case  of  default  in  payment  of  rent, 
the  machinery  and  improvements  should  be  forfeited  to  the  land- 
lord, has  been  decided  merely  to  give  a  right  to  establish  a  lien 
on  default,  and  not  to  create  a  lien  as  against  other  creditors,*'^^ 

467  Barber  v.  Marble,  2  Thomp.  &  Y.)  342;  Hawkins  v.  Giles,  45  Hun 
C.    (N.   Y.)    114.  (N.  Y.)    318;    McLellan  v.  Whitney, 

46.sSnell  V.  Ricketts,  28  Neb.  616,  65  Vt.  510,  27  Atl.  117.  Compare 
44  N.  W.  729.  ante,  §  250. 

469  It  has  been  held  that  a  provi-  471  Beers  v.  Field,  69  Vt.  533,  38 
sion  that  wool  cut  from  sheep  on  the    Atl.  270. 

premises  should  be  delivered  in  pay-  472  ibbetson    v.    Peairson,    7    Cal. 

ment  of  rent  gave  the  lessor  no  lien  App.  261,  94  Pac.  252. 

thereon.     Hitchcock    v.    Hassett,    71  4^3  Roberts  v.  Jacks,  31  Ark.   597, 

Cal.   331,  12   Pac.  228.     In   Lewis  v.  25  Am.  Rep.  584. 

Arnold,   13   Grat.    (Va.)    454,   it  was  4T4  Hitchcock   v.    Hassett,    71    Cal. 

decided   that  the   landlord   was   not  331,  12  Pac.  228. 

owner  of  salt  products  on  the  prem-  475  Piatt    v.    Stewart,    13    Blatchf. 

ises  because  rent  was  reserved  pay-  481,  Fed.  Cas.  No.  11,220. 

able  in  such  salt.  ^^^  Sammis   v.  Poole,  89   111.   App. 

470  McCombs  v.  Becker,  3  Hun   (N.  118,  afd.  188  111.  396,  58  N.  B.  934. 


.  2^2  CONVENTIONAL  LIENS.  1967 

The  doctrine  which  obtains  in  a  niirabor  of  jurisdictions,  that 
a  provision  in  a  chattel  mortgage  that  the  mortgagor  may  retain 
possession  of  the  goods  mortgaged  and  dispose  of  them  m  the 
usual  course  of  business  raises  a  presumption  of  fraud,  invalidat- 
ing the  provision,  has  been  applied  in  the  case  of  a  provision  for 
a  Uen  in  favor  of  the  landlord,  with  a  like  provision  allowing  sales 

by  the  tenant.4  7^  ,      .     ,  .     p 

b  The  nature  of  the  lien.  A  provision  m  the  instrument  ot 
lease  giving  a  lien  on  personalty  in  favor  of  the  lessor,  is  fre- 
quently assimilated  by  the  courts  to  a  chattel  mortgage,  and  the 
ri-hts  of  the  lessor  thereunder  determined  accordingly .^^^  In 
jurisdictions  where  the  common-law  view  of  a  mortgage,  as  involv- 
ing a  conveyance  of  the  legal  tjtle,  subject  to  a  defeasance,  no 
longer  prevails,  such  a  lien  provision  is,  it  seems,  neither  more 
nor  less  than  a  mortgage,  and  it  has  been  so  referred  to.^^«  In 
jursdictions,  on  the  other  hand,  where  the  common-law  view  of  a 
mortgage  does  prevail,  a  provision  of  the  lease  in  terms  creating 

477  Reynolds  v.  Ellis.  103  N.  Y.  Am.  St.  Rep.  23;  Gubbins  v.  Bquita- 
115  8  N  E  392,  57  Am.  Rep.  701;  ble  Trust  Co.,  80  111.  App.  17;  Sioux 
Greeley  v.  Winsor,  15  S.  D.  117,  45  Valley  State  Bank  v.  Honnold,  85 
N  W  325  36  Am.  St.  Rep.  720;  Iowa,  352,  52  N.  W.  244;  Kelley  v. 
Mathes  V.  Staed,  67  Mo.  App.  399.  Goodwin,  95  Me.  538,  50  Atl.  711; 
In  Burgess  v.  Kattleman,  41  Mo.  480,  Faxon  v.  Ridge,  87  Mo.  App.  299; 
a  provision,  in  a  lease  of  land  for  Agne  v.  Skewis-Moen  Co.,  98  Minn, 
cutting  wood  and  staves,  that  the  32,  107  N.  W.  415;  Strangeway  v. 
lessors  should  have  a  lien  upon  all  Eisenman,  68  Minn.  395,  71  N.  W. 
timber,  staves,  cordwood,  etc.,  was  617;  Anderson  v.  Liston,  69  Minn, 
construed  as  not  being  a  chattel  ^2,  72  N.  Vi^.  52;  McNeal  v.  Rider,  79 
mortgage  and  as  not  precluding  the  ^inn.  153,  81  N.  W.  830,  79  Am.  St. 
lessee  from  disposing  of  the  timber,  j^gp  437.  Johnson  v.  Crofoot,  53 
but  as  covering  only  such  timber  as  -q^^.^  (n.  y.)  574,  37  How.  Pr.  59; 
was  left  on  re-entry  for  breach  of  gtcffin  v.  StefRn,  4  Civ.  Proc.  R.  (N. 
condition.  Y.)  179;    McCaffrey  v.  Woodin,  65  N. 

478  Valentine  v.  Washington,  33  Y.  459,  22  Am.  Rep.  644;  Marquam  v. 
Ark.  795;  Stockton  Sav.  &  Loan  So-  gengfelder,  24  Or.  2,  32  Pac.  676. 
ciety  v.  Purvis,  112  Cal.  236,  44  Pac.  4^9  ggg  Mitchell  v.  Badgett,  33 
561,  53  Am.  St.  Rep.  210;  Ferguson  ^j,,^  ggy.  valentine  v.  Washington. 
V.  Murphy,  117  Cal.  134,  48  Pac.  33  Ark.  795:  Barroilhet  v.  Battelle,  7 
1018;  Weed  y.  Standley,  12  Fla.  166;  q^^  459;  Blakemore  v.  Tabor's  Ex'r, 
Hume  V.  Riggs,  12  App.  D.  C.  355;  22  Ind.  466;  Betsinger  v.  Schuyler. 
Packard  v.  Chicago  Title  &  Trust  40  Hun  (N.  Y.)  349;  Greeley  v.  Win- 
Co  67  111  App.  598;  Borden  v.  sor,  1  S.  D.  117.  45  N.  W.  325,  36 
Croak    131  111.  68,  22  N.  E.  793,  10    Am.   St.  Rep.  720. 


1968  LIENS  IN  FAVOR  OF  LANDLORD.  §  322 

a  lien  is  not  a  legal  mortgage,  but  is,  it  seems,  cognizable  only  in  a 
court  of  equity ,4so  and  it  has  been  quite  occasionally  referred  to  as 
creating  an  equitable  lien  or  charge.-^si  It  does  not  effect  a 
pledge,  since  the  possession  remains  in  the  debtor.^82 

c.  The  indebtedness  secured.  It  has  been  held  that  a  provision 
*for  a  lien  for  supplies  furnished  gives  a  lien  for  monies  ad- 
vanced.4^3  a  stipulation  securing  the  rent  fixed  by  the  lease  was 
construed  as  not  applying  to  rent  under  a  renewal  of  the  leasc^^^ 
A  provision,  on  a  lease  of  a  brickyard,  that  the  lessee  should  keep 
in  the  yard  sufficient  brick  to  pay  one  quarter's  rent,  was  held 
not  to  subject  a  particular  lot  of  brick  to  a  lien  for  more  than  a 
quarter's  rent,  such  quarter's  rent  being  paid  by  the  purchaser  of 
the  brick.485 

There  are,  in  two  states,  statutory  provisions  authorizing  the 
creation  by  agreement  of  a  lien  on  the  crops  for  supplies  fur- 
nished by  the  landlord.^^e  These  statutes  may  perhaps  be  in- 
tended to  remove  any  doubt  as  to  the  tenant's  power  to  create  a 
lien  on  crops  yet  to  be  planted,  which  have,  that  is,  a  mere  poten- 
tial existence.  Ordinarily,  a  tenant  has  a  right  to  bind  property 
belonging  to  him  for  any  indebtedness  to  his  landlord  as  well  as 
to  other  persons.'*^^* 

480  See  Dal  ton  v.  Landahn,  27  718;  Marquam  v.  Sengfelder,  24  Or. 
Mich.  529;  Booth  v.  Oliver,  67  Mich.    2,  32  Pac.  676. 

664   35  N.  W.  793;  Marquam  V.  Seng-  4S3  Strickland    v.    Stiles,    107    Ga. 

felder,  24  Or.  2,  32  Pac.  676;  McLean  308,  33  S.  E.  85,  45  L.  R.  A.  204,  73 

V.  Klein,  3  Dill.  113,  Fed.  Gas.  No.  Am.    St.    Rep.    122. 

8,884;   Metcalfe  v.  Fosdick,  23  Ohio  4S4  Hume  v.  Riggs,  12  App.  D.   C. 

St.  114.  ^^^' 

481  Hume  V.  Riggs,  12  App.  D.  C.  ^ss  Bleakley  v.  Sullivan,  140  N.  Y. 
355-    Fejavary  v.  Broesch,  52  Iowa,  175,  35  N.  E.  433. 

88    2   N.  W.  963,   35  Am.  Rep.   261;        «6  Georgia    Code    1895,     §§    2800, 

^  ' -x^       ,        „,      „,^    1^  -NT    T   TTn  3126;     Tennessee.     Shannon's     Code 
Smithurst  v.  Edmunds,  14  N.  J.  ii^q.  •  ^  ,      , 

r„T.  CO  TVTScc.    AQ-  1896,  §  5303.     See  Jones  v.  Enbanks, 

408;  Wh.te  v^  Thomas,  ^^  Mi-.  4^  ^^  J^^     ^^  ^   ^  ^^^.^^^^^ 

Marquam  v.  Sengfelder,  24  Or.  2    32  ^  ^^^  ^^  ^^  ^^  ^   ^^^  ^_. 

Pac.  676;    Potter  v.  Greenleaf,  21  R.  ^    ^    ^    ^^^^  ^^   ^^    ^^    ^^^    ^^^ 

I.  483,  44  Atl.  718;  Esshom  v.  Water-       ^^^^^^^^  .^  ^^^  ^^^^  ^   Goodman, 

town    Hotel  Co.,    7   S.  D.   74,   63  N.  ^^  ^^^    g^^^  ^pg   g    ^    ^^^g    ^g  j^ 

■^  W.  229;  McLean  v.  Klein,  3  Dill.  113,  jj   ^    ^^t.  g.)  954,  it  is  said  that  "the 

Fed.  Cas.  No.  8,884.  landlord's   lien    cannot   be   extended 

482  Borden  v.  Croak,  131  111.  68,  ?"  beyond    the    terms    of    the    statute, 

N.  B.  793,  19  Am.  St.  Rep.  23;  Potter  even    by    express    stipulations    con- 

V.   Greenleaf,   21   R.   I.   483,   44  Atl.  tained  in  the  contract." 


§  322  CONVENTIONAL  LIENS.  1  q(;() 

d.  Property  subject  to  the  lien— (1)  General  considerations. 
The  lessee  or  tenant  may  no  doubt  subject  to  a  lien  in  fuvor  of 
the  lessor,  to  secure  the  payment  of  rent  or  the  liquidation  of 
other  obligations,  any  property  belonging  to  him,  but  ordinarily 
the  security  is  in  terms  restricted  to  the  property,  or  to  a  particu- 
lar part  of  the  property,  upon  the  demised  premises,  such  as  crops, 
or  the  furniture  in  the  building  thereon.  Occasionally  a  lien  is 
created  upon  articles  annexed  by  the  tenant  to  the  demised  prem- 
ises, constituting  fixtures.^s^  There  is  nothing  to  prevent  the 
creation  of  a  lien  in  favor  of  the  landlord  upon  rights  of  action, 
and  a  stipulation  creating  a  lien  upon  the  sulirents  to  be  received 
by  the  lessee  has  been  recognized.^^s  Tj^g  effect  of  a  deposit  by 
the  tenant  of  money  or  securities  to  secure  the  landlord's  claim  for 
rent  is  subsequently  considered.^^g 

(2)  Property  of  asssignee  or  subtenant.  There  has  apparently 
been  no  decision  upon  the  question  whether  the  goods  of  an  as- 
signee of  the  leasehold,  or  of  a  subtenant,  brought  by  him  upon 
the  premises,  can  be  subjected  to  a  lien  created  by  the  lessee,  but 
it  would  seem  that  they  cannot  be  so  subjected,  since  the  lessee 
has  no  right  to  create  a  lien  upon  property  in  which  he  has  no 
interest,^^<^  and,  the  provision  for  a  lien  cannot  be  regarded  as  a 
covenant  which  will  run  with  the  land,  since  it  concerns  chat- 
tels and  not  the  land,  491.492  ^nd  there  is,  moreover,  some  difficulty 
in  construing  a  provision  for  a  lien,  intended  to  create  a  "real" 
obligation,  as  creating  a  personal  obligation  by  way  of  covenant. 

Though  it  has  never  been  decided  that  the  goods  of  an  assignee 
or  subtenant  brought  on  the  premises  will  be  bound  by  a  provi- 
sion for  a  lien  inserted  in  the  instrument  of  lease,  it  has  been 
decided  that  he  is  bound  by  a  provision  precluding  the  removal 
of  buildings  or  improvements  until  after  payment  of  the  rent,^^^ 
and  a  provision  for  a  lien  on  crops  has  been  held  to  bind  the 


487  Barroilhet    v.    Battelle,    7    Cal.  490  See    Beecher    v.     Bartlett,     42 
450;     Webster    v.    Nichols,    104    111.  Mich.   60,  3  N.  W.   255. 

160;    First  National  Bank  v.  Adam,  49i,4!>2  See  ante,  §  149  b  (6). 

138  111.  483,  28  N.  E.  955.  493  Barroilhet    v.    Battelle,    7    Cal. 

488  Mavor  v.   Northern   Trust  Co.,  450;     Webster    v.    Nichols,    104    111. 
93  111.  App.  314.  160;   Willard  v.  Rogers,  54  III.  App. 

«t)  See  post,   §  323.  583. 

L.  and  Ten.  12?. 


1970  LIENS  IN  FAVOR  OF  LANDLORD.  §  322 

crops  of  a  snbtcnant,^^^  and,  apparently,  of  an  assignee. *^^  The 
decisions  as  regards  buildings  or  improvements  may  be  sustained 
on  the  theory  that  the  provision  of  the  lease  is  not  so  much  a  pro- 
vision for  a  lien  as  a  provision  restrictive  of  the  lessee's  right  to 
remove  fixtures,  which  seems  necessarily  effective  as  against  per- 
sons claiming  under  the  lessee  as  well  as  against  the  lessee  him- 
self. It  is  an  obligation  imposed  upon  the  leasehold  interest,  and 
not  merely  upon  the  lessee,  and  so  a  provision  giving  a  lien  on 
the  crops  raised  may  properly  be  regarded  as  binding  crops  raised 
by  others  claiming  under  the  lessee,  since  the  crops  arise  from 
the  land,  and  are,  in  theory  of  law,  a  part  thereof.  In  the  case 
of  buildings,  moreover,  regarding  the  provision  against  removal 
as  a  covenant,  it  might,  it  seems,  run  with  the  land,  since  it  con- 
cerns fixtures,  which  constitute  a  part  of  the  land.^^^ 

(3)  Description  of  property.  In  order  that  the  lien  may  be 
effective,  the  provision  by  which  it  is  sought  to  be  created  must 
identify  the  property  to  be  subject  thereto.  There  have  been  a 
number  of  decisions  as  to  the  sufficiency  of  particular  language 
for  this  purpose,  which  are  of  little  general  interest.  They  are 
referred  to  in  the  notes.'*^'^  Presumably  the  same  criteria  in  this 
regard  are  to  be  applied  as  in  the  case  of  bills  of  sale  and  chat- 
tel mortgages. 

494  Foster  v.  Reid,  78  Iowa,  205,  42  questioned  whether  a  provision  for  a 
N.  W.  649,  16  Am.  St.  Rep.  437.  lien  for  rent  "upon  the  property  of 
See  Harris  v.  Frank,  52  Miss.  155,  the  person  or  persons  liable  there- 
where  it  seems  to  be  held  that  the  for"  is  sufficiently  specific  (Borden 
crop  of  a  subtenant  of  part  is  sub-  v.  Croak,  131  111.  68,  22  N.  E.  793,  19 
ject  to  a  lien  for  a  proportional  Am.  St.  Rep.  23),  and  it  seems  to  be 
part  of  the  rent.  recognized    that    a    lien    on    "prop- 

495  Jones  V.  Webster,  48  Ala.   109.    erty"  generally  does  not  cover  after- 
*96  See  Willard   v.   Rogers,   54   111.    acquired  property   (First  Nat.  Bank 

App.  583.  T.  Adam,  138  111.  483,  28  N.  E.  955; 
497  A  provision  of  the  lease  for  Borden  v.  Croak,  131  111.  68,  22  N. 
a  lien  upon  all  the  lessee's  "prop-  E.  793,  19  Am.  St.  Rep.  23).  The 
erty"  upon  the  demised  premises  has  meaning  of  the  expression  "prop- 
been  decided  to  be  sufficiently  erty"  may  be  limited  by  the  context, 
specific  to  cover  all  the  property  Kuschell  v.  Campau,  49  Mich.  34,  12 
thereon  at  the  time  of  the  lease  N.  W.  899;  First  Nat.  Bank  v. 
(McClain  v.  Abshire.  72  Mo.  App.  Adam,  138  111.  483,  28  N.  E.  955. 
390),  but  there  is  a  decision  to  the  A  provi?ion  for  a  lien  "on  all 
contrary  (Buskirk  v.  Cleveland,  41  goods,  implements  and  other  per- 
Barb.    [N.    Y.]    610).     It    has    been  sonal  property  which  may  be  put  on 


§  322 


CONVENTIONAL  LIENS. 


1971 


(4)  After-acquired  property.  A'  question  has  arisen  in  a  num- 
ber of  cases  as  to  the  validity  of  a  provision  for  a  lien  upon  the 
crops  to  be  grown  upon  the  demised  premises,  and,  less  frequently, 
upon  goods  to  be  brought  thereon,  and  the  cases  are  usually  in 
favor  of  the  validity  of  such  a  provision.^as  To  create  a  lien  upon 
chattels  thereafter  brought  on  the  premises,  however,  within  the 


said  premises"  was  apparently  re- 
garded as  covering  crops  subse- 
quently raised  thereon  (McCaffrey 
T.  Woodin,  65  N.  Y.  459,  22  Am. 
Rep.  644),  but  one  in  terms  on 
"grain  and  straw"  was  construed 
not  to  cover  hay  (Briggs  v.  Austin, 
129  N.  Y.  208,  29  N.  E.  4).  A  pro- 
vision for  a  lien  on  "eighty  acres  of 
cotton  to  be  grown  the  present 
year"  was  held  to  be  sufBciently  de- 
scriptive, no  greater  amount  of 
land  being  planted  in  that  year. 
Strickland  v.  Stiles,  107  Ga.  308,  33 
S.  E.  85,  45  L.  R.  A.  204,  73  Am. 
St.  Rep.  122. 

A  provision  for  a  lien  on  "build- 
ings and  improvements"  was  held 
not  to  cover  furniture  (Willard  v. 
World's  Fair  Encampment  Co.,  59 
111.  App.  336),  and  a  provision  for  a 
lien  on  "improvements"  was  held,  in 
view  of  the  context,  not  to  cover 
machinery  (Booth  v.  Oliver,  67 
Mich.  664,  35  N.  W.  793).  A  lien  on 
"furniture  and  household  goods"  in- 
cludes chattels  contributing  to  the 
use  or  convenience  of  the  lessee  or 
to  the  ornament  of  the  house,  and 
all  articles  of  a  permanent  nature 
not  consumed  in  enjoyment,  but  not 
wines,  liquors  and  groceries  (Mar- 
quam  v.  Sengfelder,  24  Or.  2,  32 
Pac.   676). 

A  provision  for  a  lien  on  the 
"furnishing"  of  a  hotel  was  held  too 
indefinite,  as  against  third  persons, 
in  the  absence  of  evidence  showing 
that    the    word    had    a    recognized 


meaning.  Attaway  v.  Hoskinson,  37 
Mo.  App.  132. 

A  provision  for  a  lien  on  "all 
goods,  wares  and  merchandise,  now 
in  or  hereafter  to  be  put  in,  on  or 
about  the  building,"  was  held  not  to 
include  horses,  harness  and  wagon 
not  kept  on  the  premi.ses,  though 
used  for  the  delivery  of  articles  in 
connection  with  the  business  con- 
ducted on  the  premises.  Van  Pat- 
ten V.  Leonard,  55  Iowa,  520,  8  N.  W. 
334. 

A  lien  on  fixtures  was  held  not  to 
cover  the  proceeds  of  insurance  on 
the  fixtures.  Northern  Trust  Co.  v. 
Snyder,  22  C.  C.  A.  47,  76  Fed.  34. 

49sButt  V.  Ellett,  86  U.  S.  (19 
Wall.)  544,  22  Law.  Ed.  183;  Jones 
V.  Webster,  48  Ala.  109;  Mitchell  v. 
Badgett,  33  Ark.  387;  Conner  v. 
Elliott,  10  Ky.  Law  Rep.  229  (com- 
pare Marques  v.  Brandon,  13  Ky. 
I,aw  Rep.  686) ;  De  Vaughn  v.  How- 
ell, 82  Ga.  336,  9  S.  E.  173,  14  Am. 
St.  Rep.  162;  Chissom  v.  Hawkins, 
11  Ind.  316;  Borden  v.  Croak,  131 
111.  68.  22  N.  E.  793,  19  Am.  St.  Rep. 
23;  Wright  v.  Bircher's  Ex'r,  72  Mo. 
179,  37  Am.  Rep.  433;  McClain  v. 
Abshire,  72  Mo.  App.  390;  Ever- 
man  &  Co.  v.  Robb,  52  Miss.  653,  24 
Am.  Rep.  682;  Smithurst  v.  Ed- 
munds, 14  N.  J.  Eq.  408;  Wisner  v. 
Ocumpaugh,  71  N.  Y.  113;  Groton 
Mfg.  Co.  V.  Gardiner,  11  R.  I.  626; 
Smith  V.  Atkins.  18  Vt.  461;  Baxter 
V.  Bush,  29  Vt.  465,  70  Am.  Dec.  429. 


1972  LIENS  IN  FAVOR  OP  LANDLORD.  §  322 

doctrine  of  these  cases,  sucli  property  must,  it  has  been  decided, 
be  specifically  referred  to,^^^  and  a  provision  for  a  lien  on  the  les- 
see's ''property"  is  consequently  insufficient  for  this  purpose.^^*^ 

There  are  in  one  state  decisions  to  the  effect  that  a  provision 
for  a  lien  on  after-acquired  property  is  invalid  for  all  purposes, 
apparently,^^^  and  it  would,  presumably,  everyv/here  be  invalid 
as  against  a  purchaser  without  notice,  actual  or  constructive.^"^ 
The  question  of  the  validity  of  a  provision  for  a  lien  on  such 
property,  as  against  subsequent  creditors  and  purchasers,  is  essen- 
tially the  same  as  that  of  the  validity  of  a  chattel  mortgage  on 
such  property,  as  to  which  the  authorities  are  in  a  state  of  con- 
siderable confusion.5<'3 

e.  Persons  entitled  to  assert  lien.  A  provision  for  a  lien  in 
favor  of  the  lessor  has  been  held  to  enure  to  the  benefit  of  a 
transferee  of  the  reversion,^*'^  and  it  has  been  decided  that  after 
the  transfer  the  lessor  has  no  right  to  enforce  the  lien.^*^^  The 
same  view  has,  in  perhaps  three  jurisdictions,  been  taken  as  to 
the  effect  of  the  transfer  of  the  rent  alone,^*^^  but  in  another  state 
it  has  been  held  that  the  assignment  of  the  rent  alone,  without 
any  express  assignment  of  the  lien,  gives  the  assignee  no  right  to 
enforce  it.^*^''' 

In  one  state  there  is  a  statutory  provision  authorizing  the  as- 
signment of  the  landlord's  express  lien  for  supplies,^"^  and  there 
it  has  been  held  that  he  may  assign  the  benefit  of  the  stipulation 

499  Willard  v.  World's  Fair  En-  sos  See  6  Cyclopedia  Law  &  Proc. 
campment  Co.,  59  111.  App.  336.  1045.     Article   by  Samuel  Williston, 

500  Borden  v.  Croak,  131  111.  68,  22    Esq.,  19  Harv.  Law  Rev.  557. 

N.  E.  793,  19  Am.  St.  Rep.  23;  Powell  504  Butt    v.    Ellett,    86    U.    S.    (19 

V.  Daily,  163  111.  646,  45  N.  E.  414;  Wall.)    544.  22  Law.  Ed.  183. 

First  National   Bank  v.   Adam,   138  bos  Hansen  v.  Prince,  45  Mich.  519, 

111.  483,  28  N.  E.  955.  8  N.  W.  584,  40  Am.  Rep.  479. 

501  New  Lincoln  Hotel  Co.  v.  soe  McRovie  v.  White,  52  Miss. 
Shears,  57  Neb.  478,  78  N.  W.  25,  43  406;  Ramsey  v.  Johnson,  7  Wyo.  392, 
L.  R.  A.  588,  73  Am.  St.  Rep.  524;  52  Pac.  1084,  40  L  R.  A.  690.  8  Wyo. 
Brown  v.  Neilson,  61  Neb.  765,  86  476,  58  Pac.  755,  80  Am.  St.  Rep.  948; 
N.  W.  498,  54  L.  R.  A.  328,  87  Am.  Smith  v.  Atkins,  18  Vt.  461. 

St.    Rep.  525;  Thorstesen  v.  Doxsee,  bot  Strickland    v.    Stiles,    107    Ga. 

78  Neb.  40,  110  N.  W.  567,  8  L.  R.  A.  308,  33  S.  E.  85,  45  L.  R.  A.  204,  73 

(N.  S.)    978.  Am.    St.    Rep.    122.     See    Rawls    v. 

502  Wilkinson    v.    Ketler,    69    Ala.  Moye,  98  Ga.  564,  25  S.  B.  582. 
435;  Kelley  v.  Goodwin,  95  Me.  538,  eos  Georgia  Code  1895,  §  2800. 
50  Atl.  71L 


t  322  CONVENTIONAL  LIENS.  1973 

for  a  lien  even  before  the  supplies  have  been  furnished  to  the 
tenant.509 

f.  Recording  and  priorities.  In  accordance  with  the  tendency, 
before  referred  to,^!"  to  assimilate  a  provision  creating  a  lien  in 
favor  of  a  lessor  to  a  chattel  mortgage,  it  has  been  quite  fre- 
quently decided  that  it  is  not  effective,  at  least  as  against  bona 
fde  purchasers,  unless  the  instrument  containing  the  provision 
is  recorded,  as  is  required  in  the  case  of  a  mortgage.^ii  There  are 
decisions,  indeed,  to  the  effect  that  the  provision  is  entirely  in- 
effective unless  so  recorded,5i2  but  ordinarily,  it  is  to  be  presumed, 
it  would,  though  unrecorded,  be  effective  as  against  purchasers 
with  notice,  as  well  as  other  persons-^^^  Occasionally  it  has  been 
decided  that  such  a  provision,  not  being  a  legal  mortgage,  need 
not  be  recorded  in  order  to  be  effective  as  against  third  persons.^i^ 

The  record  of  an  instrument  containing  such  a  provision,  in  the 

500  Benson  v.  Gottheimer,  75   Ga.    Tenn.     (5    Heisk.)    210;     Faxon    v. 
642;   Mercer  t.  Cross,  79  Ga.  432,  5    Ridge,  87  Mo.  App.  299. 
g    -^    245  ^^-  See  Franklin  v.  Meyer,  36  Ark. 

'510  See  ante,  at  note  478.  96;    Wm.  W.   Kendall  Boot  &   Shoe 

cii  Valentine  v.  Washington,  33  Co.  v.  Bain,  55  Mo.  App.  264. 
Ark.  795;  Ferguson  v.  Murphy,  117  513  See,  to  the  effect  that  the  pro- 
Cal.  134,'  48  Pac.  1018;  Hume  v.  vision  is  valid  as  against  any  pur- 
Riggs  12  App.  D.  C.  355;  Weed  v.  chaser  with  notice.  Butt  v.  Ellett,  86 
Standley,  12  Fla.  166;  Sioux  Valley  U.  S.  (19  Wall.)  544,  22  Law.  Ed. 
State  Bank  v.  Honnold,  85  Iowa,  352,  183;  Conner  v.  Elliott,  10  Ky.  Law 
52  N.  W.  244;  Smith  v.  Dayton,  94  Rep.  229  (But  compare  Marquess  v. 
Iov:a  102,  62  N.  W.  650;  Gubbins  v.  Brandon,  13  Ky.  Law  Rep.  686); 
Equitable  Trust  Co.,  80  111.  App.  17;  Wright  v.  Bircher's  Ex'r,  72  Mo.  179. 
First  Nat.  Bank  v.  Adam,  138  111.  37  Am.  Rep.  433;  Esshorn  v.  Wa- 
483  28  N.  E.  955;  Holmes  v.  Holi-  tertown  Hotel  Co.,  7  S.  D.  74,  63  N. 
field,  97  111.  App.  185;  Kelleyv.  Good-  W.  229.  These  were  all  cases  of 
win,'95  Me.  538,  50  Atl.  711;  McNeal  liens  on  crops  to  be  planted  or 
v.  Rider,  79  Minn.  153,  81  N.  W.  830,  goods  to  be  acquired.  See,  also,  Mc- 
79  Am  St.  Rep.  437;  Steffin  v.  Steffin,  Gee  v.  Fitzer,  37  Tex.  27;  Duffus  v. 
4  Civ.  Proc.  R.  (N.  Y.)  179;  Duffus  Bangs,  122  N.  Y.  423,  25  N.  E.  980; 
V.  Bangs,  122  N.  Y.  423,  25  N.  E.  Zapp  v.  Davidson,  21  Tex.  Civ.  App. 
980;  Thomas  v.  Bacon,  34  Hun  (N.  566,  54  S.  W.  366. 
Y.)'88;  Betsinger  v.  Schuyler,  46  5i4  Fox  v.  McKinney,  9  Or.  493; 
Hun  (N.  Y.)  349;  Lake  Superior  Broders  v.  Bohannon,  30  Or.  599,  48 
Ship   Canal,   R.    &   Iron   Co.   v.   Mc-    Pac.   692.  • 

Cann,  86  Mich.  106,  48  N.  W.  692;  In  Metcalfe  v.  Fosdick,  23  Ohio  St. 
Lanphere  v.  Lowe,  3  Neb.  131;  114,  it  was  held  that  a  provision  of 
Gandy  v.  Dewey,  28  Neb.  175,  44  N.  the  lease  that  the  looser  should  have 
W.    106;    Jones    t.    Chamberlin,    52    a   "lien,   in   the   nature   of   a   mort- 


X974  LIENS  IN  FAVOR  OF  LANDLORD.  §  322 

manner  appropriate  to  a  chattel  mortgage,  will  ordinarily,  it 
seems,  have  the  effect  of  charging  third  persons  with  notice  there- 
of.^^^  Occasionally  the  record  of  such  instrument  as  a  lease  is  ap- 
parently regarded  as  sufficient  for  this  purpose,^i^  but  it  does  not 
seem  that  a  purchaser  or  mortgagee  of  chattels  should  ordinarily 
be  affected  with  notice  of  an  incumbrance  thereon  by  reason  of 
its  record  among  the  land  records.^^''' 

A  provision  for  a  lien  is  not  ordinarily  effective  against  a 
purchaser  of  the  crops  or  chattels  for  value  and  without  notice, 
actual  or  constructive,^^^  and  it  has  been  held  that  one  is  not 
charged  with  notice  of  the  lien  by  knowledge  that  the  crop  pur- 
chased was  grown  on  leased  land,  even  though  accompanied  by 
knovdedge  that  the  rent  was  unpaid.^^^ 

The  decisions  occasionally  refer  to  the  fact  that  the  lessee  re- 
tains the  possession  of  the  property  sought  to  be  charged  as  a 
ground  for  holding  the  attempted  creation  of  a  lien  in  favor  of 
the  lessor  invalid  as  against  third  persons.^-^  At  common  law 
such  retention  of  possession  apparently  raised  a  presumption  of 
fraud  as  against  subsequent  creditors  and  purchasers.^^i     At  the 

gage"    upon    the   premises   and    im-  Ohio  St.  145,  2  Am.  Rep.  379.     And 

provements,      accompanied      by      a  see  ante,  note  511. 

clause  authorizing  the  lessee  to  re-  5i9  Wilkinson    v.    Ketler,    b»    Ala. 

move  any  portion  of  the  machineiy  435;    Prettyman    v.    Unland,    77    111. 

thereon,     provided     he     substituted  206;    Wilkerson   v.    Thorp,    128    Cal. 

other    machinery    therefor,    did    not  221,    60    Fac.    679.     But    Graham    v. 

operate   as  a   chattel      mortgage  as  Seignious,  53  S.  C.  132,  31  S.  E.  51, 

regards   machinery   upon  the   prem-  apears  to  be  contra, 

ises  when  leased,  but  as  a  reserva-  520  Ex  parte  Morrow,  1  Lowell,  386, 

tion,  and  consequently  was  effective  Fed.   Gas.   No.   9,850;     Butterfield  v. 

as  against  attaching  creditors  though  Baker,  22  Mass.   (5  Pick.)   522   (but 

not  recorded.  see    Whitcomb   v.    Tower,    53    Mass. 

515  Jones  v.  Webster,  48  Ala.  109;  [12  Mete]  487,  46  Am.  Dec.  698); 
Blakemore  v.  Taber's  Ex'r,  22  Ind.  Bailey  v.  Fillebrown,  9  Me.  (9 
466;  Everman  &  Go.  v.  Robb,  52  Greenl.)  12,  23  Am.  Dec.  529;  Thom- 
Miss.  653,  24  Am.    Rep.  682.  as    v.    Bacon,    34    Hun    (N.    Y.)    88; 

516  Smith  V.  Taber,  4G  Hun  (N.  Crocker  v.  Gunningham,  122  Gal. 
Y.)  313;  Faxon  v.  Ridge,  87  Mo.  547,  55  Pac.  404;  Lemon  v.  Wolff,  121 
App.   299.  Gal.   272,  53   Pac.   801.     See  Bellows 

517  See  Duffus  v.  Bangs,  122  N.  Y.  v.  Wells,  36  Vt.  599,  86  Am.  Dec. 
423,  25  N.   E.  980;    Booth  v.  Oliver,  679. 

67  Mich.  664,  35  N.  W.  793.  521  Coote,  Mortgages  (4th  Ed.)  430; 

5i«  Mnrshall  v.  Luiz,  115  Cal.  622,  May,  Fraudulent  Conveyances  (2nd 
47  Pac.  597;    Smith  v.  Worman,  19   Ed.)  116. 


c  322  CONVENTIONAL  LIENS.  1975 

present  day  the  absence  of  any  change  of  possession  as  rendering 
the  mortgage  void  as  to  creditors  and  purchasers  is  ordinarily, 
it  seems,  to  be  regarded  as  a  result  of  the  statutes  requiring  that 
the  possession  be  transferred,  or  the  mortgage  recorded,  and  has 
no  such  result  if  the  mortgage  is  recorded  pursuant  to  the  statute. 
In  the  absence  of  such  a  statute,  the  lessee's  retention  of  posses- 
sion can,  it  appears,  have  no  other  effect  than  at  common  law. 

It  has  been  decided  in  several  cases  that  a  provision  for  a  lien 
in  favor  of  the  lessor  is  effective  as  against  creditors  of  the  les- 
see.522  In  gome  cases  it  has  been  decided  that  such  a  provision 
is  invalid  as  against  creditors  unless  it  is  recorded.^^s  Occasion- 
ally the  priority  of  the  lessor's  lien  to  the  claims  of  the  creditors 
has  been  regarded  as  dependent  on  the  question  of  notice  thereof 
to  the  latter,  without  particular  reference  to  whether  this  is  by 
reason  of  the  record  or  otherwise.^24 

That  the  lien  sought  to  be  asserted  is  upon  crops  not  planted  at 
the  time  of  the  execution  of  the  provision  for  the  lien  seems  at 
times  to  have  been  regarded  as  a  consideration  in  upholding  the 
priority  thereto  of  the  rights  of  a  purchaser  or  creditor.^ss  But 
the  exact  extent  to  which  this  fact  operates  to  make  the  provision 
less  effective  than  when  the  property  sought  to  be  charged  is  in 
existence  at  that  time  does  not  clearly  appear.    In  the  cases  re- 

522  McLean  v.  Klein,  3  Dill.  113,  Jones,  123  Ky.  395,  29  Ky.  Law  Rep. 
Fed.  Cas.  No.  8,884;  Smitlnirst  v.  1022,  96  S.  W.  1121  (mortgage  to  se- 
Edmimds,  14  N.  J.  Eq.  408;  Sullivan  cure  rent).  Contra,  Buswell  v.  Mar- 
V.  Cleveland,  62  Tex.  677;  Briswell  shall,  51  Vt.  87.  In  Butterfield  v. 
V.  Marshall,  51  Vt.  87.  Baker.   22   Mass.    (5    Pick.)    522,   an 

523  Stockton  Sav.  &  Loan  Soc.  v.  attachment  was  held  superior  to  the 
Purvis,  112  Cal.  236,  44  Pac.  561,  53  claim  of  the  lessor  under  a  provision 
Am.  St.  Rep.  210  (compare  Howell  v.  retaining  in  him  the  possession  and 
Foster,  65  Cal.  169,  3  Pac.  647;  Far-  control  of  the  crop,  for  the  reason 
num  v.  Hefner,  79  Cal.  575,  21  Pac.  that  there  was  no  transfer  of  posses- 
955,  12  Am.  St.  Rep.  174)  ;   Weed  v.  sion. 

Standley,    12    Fla.    166;    Gubbins    v.  524  Hume  v.  Riggs,  12  App.  D.  C. 

Equitable  Trust  Co.,  80  111.  App.  17  355;    Jones  v.  Avant,  41  Tex.  650. 

(as  against  assignee  for  creditors) ;  -".es  See  Wilkinson  v.  Ketler,  69  Ala. 

Piatt  V  Stewart,  13  Blatchf.  481,  Fed.  435;    Gittings  v.  Nelson,  86  111.  591; 

Cas.  No.  11,220;  Johnson  v.  Crofoot,  Holmes  v.  Holifield,  97  111.  App.  185; 

53  Barb.    (N.  Y.)    574,  37   How.  Pr.  Chissom    v.    Hawkins,    11    Ind.    316. 

59;  Packard  v.  Chicago  Title  &  Trust  And  see  Marquess  v.  Brandon,  13  Ky. 

Co.,  67  111.  Anp.  598   (as  against  as-  Law  Rep.  686. 
signee  for  creditors) ;  Bowles'  Ex'r  v. 


1976  LIENS  IN  FAVOR  OF  LANDLORD.  §  322 

ferred  to,  the  purchaser  or  creditor  in  question  appears  to  have 
been  without  notice.  Such  a  provision  for  a  lien  on  future  crop 
has  in  some  cases  been  upheld  as  against  purchasers  vs^ith  notice,^26 
and  as  against  creditors  even  without  notice,  it  seems.^^'^ 

Occasionally  a  provision  in  the  instrument  of  lease,  that  the 
ownership  of  the  crop  to  be  raised  on  the  premises  shall  remain 
in  the  lessor  till  certain  conditions  have  been  satisfied  by  the  ten- 
ant, has  been  regarded  by  the  courts,  not  as  creating  merely  a  lien 
in  favor  of  the  lessor  upon  the  crop  belonging  to  the  tenant,  but 
as  vesting  the  actual  ownership  in  the  lessor,  so  as  to  leave  no 
interest  in  the  lessee  subject  to  attachment  or  execution  by  the 
latter 's  creditors,  even  though  without  notice  of  such  provision 
in  the  lease.^^s 

The  lessor's  rights  under  the  lien  provision  have  been  fully  rec- 
ognized as  against  a  person  taking  possession  of  the  property 
without  any  right  thereto,^-^  and  a  mortgage  on  the  crop  in  favor 
of  the  lessor  to  secure  the  re^t  has  been  held  valid  as  against  a 
claim  by  a  factor  making  advances  on  the  crop.^^o  g^t  the 
rights  of  laborers  under  a  cropping  contract  with  the  lessee  have 
been  regarded  as  prior  to  the  claim  of  the  lessor  under  such  a 
mortgage.^^^ 

526  Butt  V.  Ellett,  86  U.  S.  (19  N.  Y.  562,  44  N.  E.  1124;  Smith  v. 
Wall.)  544,  22  Law.  Ed.  183;  Wright  Atkins,  18  Vt.  461;  Leland  v.  Spra- 
V.  Bircher's  Ex'r,  72  Mo.  179,  37  Am.  gue,  28  Vt.  746;  Pelton  v.  Draper,  61 
Rep.  433.  Vt.  364,  17  Atl.  494.     See  Consolidat- 

527  Smithurst  v.  Edmunds,  14  N.  J.  ed  Land  &  Irr.  Co.  v.  Hawley,  7  S.  D. 
Eq.  408;  Buswell  v.  Marshall,  51  Vt.  229,  63  N.  W.  904.  But  there  are 
87;  Groton  Mfg.  Co.  v.  Gardiner,  11  cases  to  the  effect  that  the  lessee  has, 
R.  I.  626.  Disapproval  of  the  last  in  spite  of  such  a  provision,  an  as- 
cited  case  is  expressed  in  a  learned  signable  interest  in  the  crop.  Law- 
and  discriminating  article  by  Sam-  rence  v.  Phy,  27  Or.  506,  41  Pac.  671, 
uel  Williston,  Esq.,  in  19  Harv.  Law  3q  l.  r.  a.  171;  Yates  v.  Kinney,  19 
Rev.  at  p.  573,  on  "Transfers  of  Aft-  j^^^^  275.  27  N.  W.  132;  Sanford  v. 
er-Acquired  Personal  Property."  Modine,  51  Neb.  728,  71  N.  W.  740; 

528  Howell  V.  Foster,  65  Cal.  169,  3  Bellows  v.  Wells,  36  Vt.  599,  86  Am. 
Pac.   647    (but  see   Stockton  Sav.  &  j^g^    g^g 

Loan  Soc.  v.  Purvis,  112  Cal.  236,  44  5.9  Hale  v.  Omaha  Nat.  Bank,  49  N. 

Pac.     561,    53    Am.    St.    Kep.    210;  ^.   ggG;   Fowler  v.  Hawkins,  17  Ind, 

Tuohy  V.  Linder,  144  Cal.  790,  78  Pac.  gn. 

233;    Lewis  v.  Lyman,  39  Mass.   (22  530  Booker  v.  Jones'  Adm'r,  55  Ala, 

Pick.)  437;    Andrew  v.  Newcomb,  32  266. 

N.  Y.  417;    Hawkins  v.  Beakes,  80  531  Doty  v.  Heth,  52  Miss.  530. 

Hun,  292,  30  N.  Y.  Supp.  91,  afd.  150 


o  222  CONVENTIONAL  LIENS.  1977 

g.  Waiver  of  the  lien.  The  landlord  does  not,  it  has  been  held, 
waive  his  conventional  lien  on  property  belonging  to  the  tenant  by 
failing  to  object  to  its  removal  from  the  premises,532  and  it  is 
obvious  that  he  does  not  do  so  by  consenting  to  the  sale  or  re- 
moval of  other  property .^^s  Nor  is  there  any  waiver  as  a  result 
of  his  action  in  taking  a  note  for  the  rent  and  endeavoring  to 
collect  it.^34 

It  has  been  decided  in  one  state,  applying  the  doctrine  which 
obtains  with  reference  to  chattel  mortgages,  that  the  landlord's 
lien  is  waived  if  he  attaches  the  property  subject  to  the  lien.sas 

The  landlord  may  lose  his  right  to  assert  the  lien  as  against 
a  third  person  by  statements  to  the  latter  calculated  to  induce  the 
latter  to  refrain  from  any  investigation  as  to  the  existence  of  a 
lien.^36 

h.    Enforcement  of  the  lien.    A  lien  of  this  character  would 
ordinarily,  it  appears,  be  enforced  in  equity  by  obtaining  a  decree 
of  sale.537     It  does  not  seem  that  the  lessor  has,  by  reason  of  such 
lien,  such  title  to  the  property  as  would  justify  his  seizure  of  the 
property  and  sale  thereof,  without  resort  to  legal  process,  though 
he  may,  by  the  instrument  creating  the  lien,  be  given  a  power 
to  seize  and  sell  the  property  on  default.^^s     Such  a  power  does 
not  entitle  him  to  seize,  as  for  a  default  in  rent,  until  the  day 
after  the  rent  day,539  and  it  has  been  held  that,  after  seizure  and 
until  sale,  he  is  liable  for  the  value  of  the  use  of  the  property .^^o 
The  property  is,  it  seems,  subject  to  redemption  until  salc^^^i 
In  one  case,  in  a  proceeding  to  foreclose  a  lien  of  this  character 

532Wisner   v.    Ocumpaugh,    Tl   N.  W.  636;   Bourcier  v.  Edmondson,  58 

Y    11^  Tex.  675.     In  Webster  v.  Nichols,  101 

633  Sanger  v.  Magee,  29  Tex.  Civ.  111.  160,  it  was  decided  that  the  lien 

App   397    69  S.  W.  234.  might  he  enforced  in  equity  for  the 

534  Baxter  y.  Bush,  29  Vt.  465,  70  reason  that  it  required  the  taking  of 
Am  Dec  429.  an  account  between  the  parties. 

535  Potter    V.   Greenleaf,    21    R.    I.  ^ss  state   v.   Adams,   76    Mo.    605; 
483,  44  Atl.  718.  Whited  v.  Hamilton,  15  Hun  (N.  Y.) 

536  Allen  V.  Houston  Ice  &  Brew.  275. 

Co.,  44  Tex.  Civ.  App.  125,  16  Tex.  b39  Dalton    v.   Laudahn,    27    Mien 

Ct.Rop.  942,  97  S.  W.   1063.  529. 

537  See    Wilkinson    v.    Ketler,    69  54o  state  v.  Adams.  76  Mo.  605. 
Ala.  435;   Potter  v.  Greenleaf.  21  R.  54i  See  Taggart  v.  Packard,  39  Vt 
I.     483.    44    Atl.     718;     Monnich    v.  628. 

Schwartz,   4  Neb.   Unoff.   811,  96  N. 


1978  LIENS  IN  FAVOR  OF  LANDLORD.  §  323 

upon  the  improvements  upon  tlie  premises,  the  court,  in  view  of 
the  condition  of  the  premises  and  of  the  improvements,  and  to 
save  the  expense  of  a  sale,  decreed  a  strict  foreclosure.^^^ 

i.  Landlord's  rights  against  third  persons.  A  lien  of  this  char- 
acter does  not,  in  most  jurisdictions,  it  would  seem,  create  any- 
possessory  rights  in  the  lienor,  whch  he  may  assert  against  the 
lessee  or  any  other  person,  by  an  action  of  trespass,  replevin,  or 
trover.^^3  In  one  state,  however,  a  different  view  seems  to  be 
taken.^^^  In  some  states  the  right  to  bring  trover  or  replevin 
may  exist  by  reason  of  provisions  giving  the  title  or  right  of  pos- 
session to  the  lessor  after  the  lessee's  default.^^^ 

It  has  been  said  that  the  lessor  is  entitled  to  an  injunction 
against  the  removal  of  the  property  subject  to  the  lien.^'*^ 

The  decisions  before  referred  to,-^^'^  asserting  the  right  of  the 
landlord  to  recover  damages  against  one  purchasing  property 
which  is  subject  to  a  statutory  lien,  would  seem  to  support  the 
view  that  he  may  recover  against  the  purchasers  of  property  sub- 
ject to  his  conventional  lien.  There  are,  apparently,  no  decisions 
upon  the  question.'^^^ 

§  323.    Deposits  to  secure  rent. 

In  some  places,  particularly  in  the  city  of  New  York,  lessors 

542  Illinois  Starch  Co.  v.  Ottawa  S77.  Compare  Streeter  v.  Ward,  12 
Hydraulic  Co.,  125  111.  237.  17  N.  E.    N.  Y.  St.  Rep.  333. 

4S6.  ^*<'  Slieble  v.  Curdt,  56  Mo.  437. 

543  Dunning  v.  South,  62  111.   175;        547  See  ante,  at  notes  444.  452. 
Sheble  v.  Curdt,  56  Mo.  437.  ^48  in  Crockett  v.  Bearce,  104  Mich. 

644  Baxter  v.  Bush,  39  Vt.  465,  70  257,   62  N.  W.  344,  it  is  apparently 

Am.  Dec.  429;    Willmarth  v.  Pratt,  decided  that  the  landlord  may  sue  a 

56  Vt.  474;  Pelton  v.  Draper,  61  Vt.  subsequent   mortgagee   of   the   prop- 

364,  17  Atl.  494;  Smith  v.  Atkins,  18  erty   subject  to   the   lien,   who  took 

Vt.  461.     In  North  Carolina  the  stat-  possession  for  default,  the  mortgage 

ute  provides  that  the  possession  shall  being  made  by  the  lessee  with   in- 

be  regarded  as  in  the  lessor  and  that  tent    to    defraud    the    landlord.       In 

he    shall    be    entitled    to    maintain  Agne  v.  Skewis-Moen  Co.,  98  Minn, 

"claim,   and   delivery"   for   the   crop  32,  107  N.  W.  415,  the  lessor  was  al- 

See  Durham  v.  Speeke,  82  N.  C.  87.  lowed   to  recover,  as  against  a  pur- 

S45  Booker  v.  Jones'  Adm'r,  55  Ala.  chaser  under  a  subsequent  mortgage 

266;  Whited  v.  Hamilton,  15  Hun  (N.  of  the  crop,  who  had  taken  posses- 

Y.)  275.     See  Sheble  v.  Curdt,  56  Mo.  sion  thereof,  the  amount  of  the  les- 

437;    Agne   v.    Skewis-Moen    Co.,    98  sor's  share  of  the  crop,  together  with 

Minn.  32,  107  N.  W.  415;  Aronson  v.  damage  suffered  as  a  consequence  of 

Oppegard,  16  N.  D.  595,   114  N.  W.  the  tenant's  default. 


.  323  DEPOSITS  TO  SECURE  RENT.  1979 

occasionally  require  the  lessee,  at  the  time  the  lease  is  made,  to 
"deposit"  a  certain  sum  of  money  with  the  lessor  to  secure  the 
payment  of  the  rent,  and  occasionally,  the  performance  of  other 
covenants  entered  into  by  the  lessee.  Such  a  deposit  is,  in  reality, 
it  seems,  a  loan  by  the  lessee  to  the  lessor,549  to  be  returned  to 
the  latter,  either  by  applying  the  amount  so  deposited  on  the 
rent  or  particular  installments  of  the  rent,  or  by  applying  it  in 
satisfaction  of  claims  for  damages  from  breaches  of  other  cov- 
enants, if  it  is  agreed  that  it  may  be  so  applied,  or  by  repaying, 
at  the  end  of  the  term,  the  amount  deposited,  if  all  claims  of  the 
lessor  which  it  was  intended  to  secure  are  otherwise  satisfied. 
Such  a  deposit  does  not  create  a  lien  in  favor  of  the  lessor,  since 
the  lessor  obtains  the  actual  ownership  of  the  money  and  the  les- 
see is  divested  thereof.  The  purpose  of  the  deposit  being,  how- 
ever, to  secure  the  lessor  from  loss,  and  it  to  that  extent  resem- 
bling a  lien,  the  rights  of  the  parties  with  reference  thereto  may 
be  conveniently  considered  in  this  place. 

It  is  said  that  a  stipulation  for  a  forfeiture  of  the  whole  deposit 
in  case  of  default  by  the  lessee  will  be  treated  as  a  provision  for 
liquidated  damages  only  in  those  cases  where,  from  the  nature  of 
the  transaction,  the  actual  damage  consequent  upon  a  breach  of 
the  contract  is  incapable  of  accurate  measurement,  or  where  the 
sum  is  not  out  of  all  proportion  to  any  damage  which  could  pos- 
sibly arise  from  the  breach.^so  It  has  accordingly  been  decided 
in  several  cases  that  the  tenant  could  recover  from  the  landlord 
the  excess  of  the  amount  of  the  deposit  above  the  damage  suffered 
by  reason  of  the  tenant's  default,  when  the  landlord  had  recov- 
ered possession  by  reason  of  such  default,^^!  it  being  in  such  case 

B40  See  In  re  Banner,  149  Fed.  936.       When   the   deposit   was   to  be  re- 
650   Caesar  v.  Rubinson,  174  N.  Y.    turned  at  the  expiration  of  the  term 
492    67  N.  E.  58.  of  the  lease  if  all  conditions  thereof 

ssiHecklau  v.  Hauser,  71  N.  J  were  performed  by  the  tenant,  the 
Law,  478,  59  AtL  18;  Chaude  v.  fact  that  the  landlord  had  re-enter- 
Shepard  122  N.  Y.  397,  25  N.  E.  358;  ed,  upon  the  tenant's  abandonment. 
Caesar  v.  Rubinson,  174  N.  Y.  492,  was  held  not  to  impose  any  obliga- 
67  N  E.  58.  Compare  Lesser  v.  tion  immediately  to  return  the  de- 
Stein,  39  Misc.  349,  79  N.  Y.  Supp.  posit,  the  lease  giving  the  landlord 
849-  Adler  v.  Kramer,  39  Misc.  642,  the  right  to  re-enter  in  such  case 
80  N  Y  Supp.  624;  Slater  v.  Bon-  and  re-rent  as  the  tenant's  agent, 
firlio'  56  Misc.  385,  106  N.  Y.  Supp.  the  tenant  remaining  liable  for  any 
861-  Franceschini  v.  Chaucer.  110  N.  deficiency.  O'Brien  v.  Levine.  50 
Y    Supp.  775.  Misc.  303,  98  N.  Y.  Supp.  636. 


19S0  LIENS  IN  FAVOR  OF  LANDLORD.  §  323 

presumed,  it  seems,  in  the  absence  of  evidence  to  the  contrary, 
that  by  reason  of  his  recovery  of  possession  the  landlord  does 
not  suffer  on  account  of  the  nonpayment  of  installments  of  rent 
falling  due  after  such  recovery.^^^  if  the  landlord  does  not 
elect  to  resume  possession  by  reason  of  the  tenant's  default,  he 
may,  it  seems,  appl}^  the  deposit  in  satisfaction  of  the  rent  as  it 
becomes  due,^^^  or,  presumably,  in  satisfaction  of  other  claims 
against  the  tenant  on  account  of  the  stipulations  of  the  lease. 

It  has  been  decided  that  when  the  tenancy  comes  to  an  end  by 
reason  of  surrender,^^*  or  a  sale  under  a  mortgage  prior  to  the 
lease,^55  the  tenant  may,  prima  facie,  recover  the  amount  of  the 
deposit. 

Upon  the  ending  of  the  tenancy  by  summary  proceedings,  the 
tenant  may  recover  the  amount  of  the  deposit,  less  rent  pre- 
A'iously  accrued,  and  also  damages  accrued  from  breach  of  stipu- 
lations other  than  for  rent,  if  the  deposit  was  intended  as  secu- 
rity for  their  performance.^^®  That  the  order  of  dispossession 
is  afterwards  reversed  does  not  affect  the  tenant's  right  to  a 
return  of  the  deposit,  he  not  having  elected  to  accept  restitution 
of  the  premises.^^'^  The  issue  of  a  warrant  in  summary  pro- 
ceedings has  been  regarded  as  a  "fulfillment"  of  the  lease  within 
the  meaning  of  a  provision  providing  for  the  return  of  the 
deposit  on  such  fulfillment,  so  that  the  landlord  can  retain  there- 
from only  the  amount  of  the  rent  then  due.^^^ 

B52  See  Caesar  v.  Rubinson,  174  N.  555  Dcgnario  v.  Sire,  34  Misc.  163. 

Y.  492,  67  N.  E.  58.  68  N.  Y.  Supp.  789.     But  not  upon  a 

653  Caesar  v.  Rubinson,  174  N.  Y.  mere  threatened  foreclosure  of  such 

492,  67  N.  E.  58.     In  Blackall  v.  Mor-  a  mortgage.     In  re  Banner,  149  Fed. 

rison,  170  111.  152,  48  N.  E.   705,  it  936. 

was  decided  that  a  deposit  made  by  sse  Scott  v.  Montells,  109  N.  Y.  1, 

a  sublessee  should,  upon  his  insolv-  15  N.  E.  729;  Chaude  v.  Shepard,  122 

ency,  be  applied  to  satisfy  the  sub-  N.  Y.   397,   25  N.  E.   858;    Caesar  v. 

lessor's  loss  of  the  difference,  for  the  Rubinson,  174  N.  Y.  498,  67  N.  E.  58; 

balance    of   the    term,    between    the  Bernstein    v.    Heinemann,    23    Misc. 

rent  reserved  on  the  head  lease  and  464,  51  N.  Y.  Supp.  467.     Including 

that  reserved  on  the  sublease,  rath-  rent  then  due  as  being  payable  in 

er  than  on  the  rent  already  due  un-  advance.       Coro    v.    Greenwald,    52 

der  the  sublease.  Misc.  548,  102  N.  Y.  Supp.  752. 

r.54  Kahn  v.  Tobias,  16  Misc.  83,  37  557  Niles  v.  Iroquois  Realty  Co.,  57 

N.  Y.  Supp.  682.     See  Hawthorne  v.  Misc.  443,  109  N.  Y.  Supp.  712. 

Courson,  18  Misc.  447,  41  N.  Y.  Supp.  C3«  Michaels   v.    Fishel,    169   N.   Y, 

995.  381,  62  N.  E.  425,  57  L.  R.  A.  317. 


.  303  DEPOSITS  TO  SECURE  RENT.  1981 

In  spite  of  the  fact  that  the  tenancy  i^,,  by  the  express  lan- 
guage of  the  statute,  terminated  upon  the  recovery  of  possession 
in  summary  proceedings,  the  language  of  the  lease  may,  it  has 
been  decided,  enable  the  landlord  to  retain  the  deposit  until  the 
end  of  the  term  named  in  the  lease,  to  secure  him  against  sub- 
sequent loss  by  reason  of  re-renting  at  a  reduced  rent,  or  of  ex- 
penditures incurred  by  him.^^^  So  a  provision  that  the  deposit 
may  be  retained  by  the  lessor  as  liquidated  damages  in  case  of 
the  dispossession  of  the  lessee  by  due  process  of  law,  and  that 
there  shall  be  "no  rebate  or  allowance  in  the  event  of  dispos- 
session," has  been  held  to  render  the  deposit  available  as  secu- 
rity for  breaches  even  after  dispossession  by  summary  proceed- 

ings.^^^ 

A  provision  that  the  lessor  should  hold  the  deposit  as  security 
for  the  payment  of  rent  "according  to  the  conditions  and  pro- 
visions of  this  lease,  said  security  to  be  paid  back  to  the  party 
of  the  second  part  on  the  full  compliance  with  the  provisions 
of  this  lease  on  the  part  of"  the  lessee,  was  held  to  render  the 
fund  deposited  security  for  the  payment  of  rent  only,  and  not 
for  the  performance  of  the  covenants  generally .^^i 

A  deposit  made  as  security  for  the  rent,  to  be  retained  as 
liquidated  damages  in  case  of  breach  of  covenant,  was  held  not 
applicable  to  payment  of  the  last  month's  rent,  so  as  to  pre- 
clude the  tenant's  dispossession  for  nonpayment  of  such  rent 
in  advance  as  stipulated  by  the  lease.562  And  it  has  been  held 
that  when  the  deposit  was  in  terms  applicable  to  any  deficiency 
in  performance  of  the  covenants  of  the  lease,  or  in  case  there 
was  no  such  deficiency,  then  in  payment  of  the  rent  for  the  last 
three  months  of  the  lease,  the  tenant  could  not  demand  that  the 
deposit  be  applied  in  payment  of  rent  accruing  in  the  early  part 
of  the  term.5«3 

B50  Lesser  v.  Stein.  39  Misc.  349,  79  98  N.  Y.  Supp.   636.       But  compare 

N.  Y.  Supp.  849;  Anzolone  V.  Paskusz,  Caesar  v.  Rubinson,  174  N.  Y.  492, 

96  App.  Div.  188,  89  N.  Y.  Supp.  203;  67  N.  E.  58. 

Colderaro    v.    Kempner,    107    N.    Y.  sei  Scott  v.  Montells,  109  N.  Y.  1, 

Supp.   41.  15  N.  E.  729. 

eeo  Longobardi  v.  Yuliano,  33  Misc.  r>62  Shing  v.  Sire,  15  Misc.  139,  36 

472,  67  N.   Y.  Supp.  902.       And  see  N.  Y.  Supp.  466. 

Rice  V.  Bliss,  66  How.  Pr.    (N.  Y.)  R63  Brill  v.  Schlosser,  40  Misc.  247. 

186;  O'Brien  v.  Levine,  50  Misc.  303,  81  N.  Y.  Supp.  678. 


1982  LIENS  IN  FAVOR  OP  LANDLORD.  §  324 

A  payment,  made  at  the  time  of  the  making  of  the  lease,  of 
the  rent  for  the  last  two  months  of  the  tenancy,  could  not,  it  has 
been  decided,  be  regarded  as  a  deposit  to  secure  the  payment  of 
rent,  and  as  such  recoverable  in  a  certain  contingency .^^^ 

A  covenant  by  the  lessor  to  return  the  deposit  at  the  end 
of  the  term  is  not  one  which  runs  with  the  land,  and,  conse- 
quently, recovery  thereon  must  be  against  the  lessor  and  not 
against  one  to  whom  he  has  transferred  the  reversion.^^^ 

§  324.     Agreement  to  give  security. 

Occasionally  the  courts  have  considered  the  effect  of  the  les- 
see's failure  to  comply  with  his  agreement  to  give  security  for 
the  rent.  The  presence  in  an  instrument  of  a  provision  to  that 
effect  has  in  England  been  regarded  as  showing  that  the  in- 
strument constitutes  a  contract  to  make  a  lease  rather  than  a 
lease.566  i^  this  country  the  courts  have  tended  to  regard  the 
instrument  as  a  lease  in  spite  of  the  presence  of  such  a  pro- 
vision, and  the  provision  itself  as  constituting  a  condtion  pre- 
cedent, a  failure  promptly  to  comply  with  which  renders  the 
lease  inoperative.^^ ^  In  one  case,  however,  in  which  such  a  pro- 
vision was  present,  the  instrument  seems  to  have  been  regarded 
as  a  contract  to  make  a  lease  rather  than  a  lease.^^^ 

B64  Forgotston   v.  Brafman,   84  N.  (N.  Y.)  257;  Andis  v.  Personett,  108 

T.  Supp.  237.  Ind.  202,  9  N.  B.  101;  Frank  v.  Strat- 

565  Knutsen  v.  Cinque,  113  App.  ford-Handcock,  13  Wyo.  37,  77  Pac. 
Div.  677,  99  N.  Y.  Supp.  911;  Fallert  134,  67  L.  R.  A.  571,  110  Am.  St.  Rep. 
Brewing  Co.  v.  Blass,  119  App.  Div.  963.  There  is  a  similar  decision  in 
53,  103  N.  Y.  Supp.  865.  Canada.     Murphy  y.  Scarth,  16  U.  C. 

566  John  V.  Jenkins,  1  Cromp.  &  M.  Q.  B.  48. 

227.  "8  Hard  v.  Brown,  18  Vt  87. 

B67  McGaunten  v.   Wilbur,   1   Cow. 


CHAPTER  XXXII. 

DISTRESS  AND  ATTACHMENT. 
A.     Distress. 

325.  The  right  of  distress — General  considerations, 

326.  Existence  of  relation  of  tenancy. 

a.  Is  usually  necessary. 

b.  Character  of  demise  or  lease. 

c  Possession  under  contract  for  lease. 

d.  Effect  of  transfer  of  interest. 

e.  Effect  of  expiration  of  term. 

f.  Effect  of   forfeiture. 

g.  Effect  of  surrender. 

327.  For  what  distress  may  be  made. 

a.  Not  for  periodic  payments  other  than  rent. 

b.  Sums  reserved  on  lease  of  land  and  chattels. 

c.  Sums  reserved  on  lease  of  land  and  incorporeal  things, 

d.  Certainty  of  rent. 

e.  Rent  payable  in  specific  articles. 

f.  Distress  for  services  other  than  rent, 

g.  Statutory  distress  for  advances, 
h.     Express  stipulations. 

S28,     Things  subject  to  and  exempt  from  distress. 

a.  Things  not  belonging  to  the  tenant. 

(1)  Ordinarily  subject  to  distress. 

(2)  Things  belonging  to  tenant's   wife. 

(3)  Things  belonging  to  prior  or  subsequent  lessee. 

(4)  Things  on  premises  in  way  of  trade. 

(5)  Things  belonging  to  guest  or  lodger. 

(6)  Straying   cattle. 

(7)  Circumstances  creating  estoppel  on  landlord, 

(8)  Reimbursement  of  owner  by  tenant. 

(9)  Statutory  changes  of  rule. 

b.  Fixtures. 

c.  Things  not  restorable  in  same  plight  as  when  taken, 

d.  Grain   and   growing   crops, 

e.  Things  in  actual  use. 

f.  Things  in  custodia  legis. 


1984  DISTRESS. 

g.    Beasts  of  the  plough  and  sheep. 

h.     Implements  of  husbandry  and   trade. 

i.     Animals  ferae  naturae. 

j.     Choses  in  action. 

k.     Things  exempt  by  statute. 

1.     Things  not  on  the  premises. 

(1)  Not  ordinarily  subject  at  common  law. 

(2)  Cattle  seen   on   premises   and   driven   therefrom. 

(3)  Statutory  right  as  to  things  removed. 

(4)  Statutory  right  as  to  tenant's  goods. 
§  329.     Loss  of  right  of  distress. 

a.  By  extinction  of  rent. 

b.  By  tender  of  rent  due. 

c.  By  release,  suspension,  or  waiver  of  right. 

d.  Effect  of  existence  of  other  remedies. 

e.  Effect  of  acceptance  of  note,  draft,  or  bond  for  rent. 

f.  Effect  of  tenant's  death. 

330.  Successive   distresses. 

331.  Amount  for  which  distress  allowable. 

332.  Set-off  and  counterclaim. 

333.  Time  for  distress. 

a.  Usually  after  rent  due. 

b.  Statutory  distress  for  rent  not  due. 

c.  Statutory  limitation  period. 

334.  Persons  entitled  to  distrain. 

a.  Persons  having  or  not  having  the  reversion. 

b.  Executors  and  administrators. 

c.  Tenants  pur  autre  vie. 

d.  Joint  tenants  and  tenants  in  common. 

e.  Mortgagors  and  mortgagees. 

f.  Receivers. 

g.  Agents. 

335.  Preliminaries  to  levy. 

a.  Demand  for  rent. 

b.  Affidavit. 

c.  Bond. 

d.  Warrant. 

336.  Person  to  make  levy. 

337.  Mode  of  levy. 

a.  Entry. 

b.  Seizure. 

c.  Hours  for  levy. 

338.  Effect  of  levy. 

339.  Impounding. 

340.  Pound  breach. 

341.  Caxe  of  things  taken. 


§325 


GENERAL  CONSIDERATIONS.  1985 


§  342.     Sale  and  preliminaries  thereto. 

a.  Power  to  sell. 

b.  Notice  to  tenant. 

c.  Appraisement. 

d.  Mode  of  sale. 

343.  Surplus  proceeds   and  unsold   goods. 

344.  Statutory  distress  as  commencement  of  action. 
345      Abandonment  of  distress. 

346.    Wrongful   and  irregular   distresses— Remedies. 

a.  Rescue. 

b.  Replevin. 

(1)  Proceedings  at  common  law. 

(2)  Local  statutory  changes. 

c.  Injunction. 

d.  Action  for  damages. 

(1)  Distress  when  no  tenancy  exists. 

(2)  Distress  when  no  rent  due. 

(3)  Seizure  or  sale  after  tender. 

(4)  Distress   on   property  not  subject. 

(5)  Irregularities  in  entry  or  seizure. 

(6)  Second   distress. 

(7)  Excessive  distress. 

(8)  Irregularities  after  seizure. 

(9)  Measure  of  damages. 

(10)  Persons  liable. 

(11)  Matters  excluding  right  of  action. 

B.    Attachment. 

§  347.  When  authorized. 

348.  Affidavit  for  attachment. 

349.  Bond. 

350.  Writ  and  levy  thereunder. 

351.  Damages  for  wrongful  attachment. 

A.  Distress. 
§  325.    The  right  of  distress— General  considerations. 

'  Distress  is  a  remedy  for  the  collection  of  rent,  ^yj^^Zels 
which  the  landlord  may  take,  or  have  taken,  goods  ^nd  chatte  s 
which  are  upon  the  demised  premises,  or,  by  virtue  of  statute 
:c:asionally,'goods  and  chattels  belonging  to  t^e  te^^^^^^^^^^ 
ever  found,  and  sell  them,  or  have  them  sold,  applying  the  pro 
ceeds  upon  the  arrears  of  rent. 

At  common  law  this  right  of  distress  existed  m  favor  of  e^er 
lord  to  compel  the  performance  of  any  service  due  by  the  tenant, 
inchiding  that  to  pay  rent,  but  the  lord  had  no  nght  to  dis- 

L.  and  Ten    125. 


1986  DISTRESS.  §  325 

pose  of  the  goods  and  chattels  which  he  might  seize,  and  could 
only  hold  them  as  security  until  the  tenant  either  performed  the 
services  in  arrear,  or  found  security  to  contest  in  a  court  of  law 
the  justice  of  the  seizure.^  It  was  not  until  the  latter  part  of 
the  seventeenth  century  that  the  person  distraining  was  by 
statute  ^iven  the  power  to  sell  the  goods  seized  and  thus  actually 
to  obtain  payment  of  arrears  of  rent  by  means  of  a  distress."  At 
the  present  day,  in  all  jurisdictions  in  which  the  remedy  by  dis- 
tress exists,  the  right  to  sell  is  incidental  thereto.^ 

At  common  law  the  right  of  distress  was  incident  to  every 
"rent  service"^  that  is,  to  every  rent  payable  by  a  tenant  to 
his  lord.^  It  was  also  incident  to  a  rent  reserved  on  a  tenancy  at 
will,^  though  such  a  rent  was  said  not  to-  be  a  rent  serviced  In 
the  case  of  a  "rent  charge,"^  the  right  of  distress  existed  by  rea- 
son of  express  stipulation,  this  being  indeed  the  distinguishing 
characteristic  of  such  a  rent,  the  rent  being  "charged"  on  the 
land,  or  more  exactly,  upon  the  chattels  that  might  be  on  the 
land.^  In  connection  with  some  rents,  as  not  being  incident  to 
a  relation  of  tenancy,  and  as  being  created  without  any  express 
stipulation  for  distress,  there  was  no  right  of  distress,  they  being 
consiequently  known  as  "rents  seck."^^  But  by  St.  4  Geo.  2,  c.  28, 
§  5,  it  was  enacted  that  all  persons  should  have  the  like  remedy  by 
distress  in  case  of  rents  seek,  as  in  case  of  rent  reserved  upon 
a  lease.^^     This  statute  is  in  force,  it  seems,  in  at  least  one  state.^^ 

There  were  a  few  cases  even  at  common  law  in  which  there  was 
a  right  of  distress  for  rent  although  this  was  not  in  the  nature 
of  rent  service.  So  a  distress  was  allowable  for  any  rent  granted 
upon  an  exchange,^  ^  or  for  a  rent  granted  by  one  copartner  to 
another  for  equality  of  partition,^ ^  and  likewise,  a  woman  en- 

1  Pollock   &  Maitland,  Hist.    Eng.       s  gee  ante,  §  167. 

Law  (2d  Ed.)  vol.  1,  p.  353,  vol.  2,  p.        o  Litt.  §§  217,  218;  Co.  Litt.  143  b; 

576;    3  Blackst.  Comm.  14;   Bradby,  Den    d.    Farley    v.    Craig,    15    N.    J. 

Distresses,  9.  Law,-  192.     See   Cornell   v.    Lamb,    2 

2  2  Wm.  &  M.  sess.  1,  c.  5,  §  2  (A.  D.  Cow.  (N.  Y.)  652. 
1690).  10  Litt.  §§  218,  225-228. 

3  See  post,  §  342.  "  See  Blackst.  Comm.  7. 

*Litt.  §§  213-216.  12  Maryland.  See  Alexander's  Brit- 

5  See  ante,  §  167.  Ish  Statutes  in  force  in  Maryland. 
8  Litt.  §  72.  13  Bullen,  Distresses,  31. 

7  Co.  Litt.  57  b.  "  Litt.  §§  252,  253. 


§  325 


GENERAL  CONSIDERATIONS.  19S7 


dowed  of  a  rent  by  way  of  jointure  in  lieu  of  dower  could  dis- 
train for  it.i** 

In  this  country  the  right  of  distress  for  rent  reserved  on  a 
lease  for  years  has  been  recognized  in  a  number  of  jurisdictions, 
apart  from  any  local  legislation  on  the  subject.     In  some  of  the 
older  states,  where  the  right  bad  existed,  in  accordance  with  the 
English  law,  before  the  Revolution,  its  existence  thereafter  was 
assumed,  no  suggestion  being  there  made  apparently  that  the 
change  of  political  conditions  had  changed  the  rent  so  reserved 
from  rent  service  to  rent  seck.i«     In  a  few  states,  v/hile,  as  be- 
fore stated,!'^  the  courts  refused  to  regard  such  rent  as  rent 
service,  they  recognized  the  right  of  distress  upon  the  ground 
that  it  had  been  generally  recognized  in  the  older  states,  that  is, 
as  it  was  expressed,  it  was  a  part  of  the  "American  common 
law.  "IS     In  some  states  the  courts  have  refused  to  recognize  the 
right  of  distress,  usually  upon  the  ground  that,  by  statute,  other 
remedies  for  securing  the  landlord  have  been  substituted,  such  as 
a  lien  for  the  rent,  or  the  right  to  recover  the  premises  by  sum- 
mary proceedings  on  nonpayment.^^     In  some  states  in  which 
the  remedy  by  distress  once  existed,  it  has  been  abolished  by 
statute, 20  and  in  those  in  which  it  still  exists,  it  has  been  modified 
by  statutes,  the  general  tendency  of  which  is  more  or  less  to 

15  Co.  Litt.  34  b;  Gilbert,  Rents,  20.  57  Ala.  588);  Colorado  (Herr  v. 
See  Pennsylvania  Act  March  29,  Johnson,  11  Colo.  393,  18  Pac.  342) ; 
5^832.  Missouri    (Crocker   v.    Mann,   3   Mo. 

16  See  Garrett  v.  Hughlett,  1  Har.  472,  26  Am.  Dec.  684) ;  Montana 
&  J.  (Md.)  3;  Hoskins  v.  Paul,  9  N.  (Bohm  v.  Dimphy,  1  Mont.  333); 
J.  Law,  110,  17  Am.  Dec.  455;  Wog-  JJorth  Carolina  (Dalgleish  v.  Grandy, 
lam  V.  Cowperthwaite,  2  Dall.  (Pa.)  1  N.  C.  (Conf.  R.  22)  249;  Deaver  v. 
68;  Charleston  City  Council  v.  Price,  Rice,  20  N.  C.  (4  Dev.  &  B.  Law) 
1  McCord  Law  (S.  C.)  299;  Elford  567,  34  Am.  Dec.  69);  Oklahoma 
V.  Clark,  2  Brev.  (S.  C.)  88;  Jones  (Smith  v.  Wheeler,  4  Okl.  138,  44 
V.  Murdaugh,  2  Leigh  (Va.)  447.     In  pac.  203). 

Cornell  v.  Lamb,  2  Cow.  (N.  Y.)  652,  20  District  of  Columbia  (Act  Cong, 

it  was  decided  that  rent  incident  to  Feb.  22,  1867) ;  Indiana  (2  Gav.  &  H. 

a    reversionary    interest    was    rent  st.   1862,  p.   360);   Minnesota   (Rev. 

service   carrying   the    right   of    dis-  Laws  1905,  §  3327) ;  New  York  (Laws 

tress.  1846,    c.   369);    Wisconsin    (Rev.   St. 

17  See  ante,  §  167,  at  note  21.  1898,    §    2181).      In    South    Carolina 

18  Penny  v.  Little,  4  111.  (3  Scam.)  distress  was  abolished  in  1868,  but 
301;  Dutcher  v.  Culver,  24  Minn,  restored  by  Act  June  8.  1877.  See 
584;    Coburn  v.  Harvey,  18  Wis.  148.  Mobley  v.  Dent,  10  S.  C.  471. 

10  Alabama  (Folmar  v.  Copeland, 


1988  DISTRESS.  §  326 

withdraw  tlie  control  of  the  proceedings  from  the  landlord  and 
to  vest  it  in  public  officials,  thus  assimilating  it  to  the  process  of 
attachment.  In  one  state,  indeed,  the  statute  names  process  for 
the  collection  of  rent  "distress  or  attachment"  in  the  alterna 
tive.2i  In  the  New  England  states  the  right  of  attachment  or. 
mesne  process  has  superseded  that  of  distress,  and  it  is,  it  seems, 
in  the  majority  of  cases,  even  more  efficacious. 

It  has  been  decided  that  a  statute  abolishine:  the  remedy  by 
distress  is  not  unconstitutional  as  applied  to  the  case  of  a  lease 
made  before  its  enactment,^^  though  such  a  statute  was  regarded 
as  inapplicable  to  a  case  in  which  the  tenant's  chattels  had  al- 
ready been  actually  seized.^^  It  has  even  been  decided  that  such 
a  statute  is  effective  to  exclude  the  remedy  although  the  prior 
lease  in  question  contained  an  express  clause  allowing  distress. '  '^^ 

§  326.    Existence  of  relation  of  tenancy. 

a.  Is  usually  necessary.  Since  the  right  of  distress  is  based 
upon  the  relation  of  tenure,  a  distress  for  rent  reserved  on  a  lease 
can  be  made  only  by  one  having  the  reversion,  that  is,  the  land- 
lord.25  If  there  is  no  demise  whatever,  that  is,  if  no  relation  of 
tenancy  exists  between  the  parties,  and  one  is  on  the  other's  prem- 
ises as  a  trespasser,  the  owner  of  the  land  has  obviously  no  right 
of  distress.26  It  has  even  been  decided  that  a  landlord  loses  his 
right  of  distress  if  he  treats  his  tenant  as  a  trespasser  by  bringing 
ejectment  against  him.^'^ 

A  lessee  who  assigns  his  lease,  reserving  a  rent  to  be  paid  by 
the  assignee,  has  been  held  to  have  no  power  of  distress  for  such 

21  Mississippi.  See  Code  1906,  §  App.  373;  Patty  v.  Bogle,  59  Miss. 
2838  et  seq.  491;  Grier  v.  McAlarney,  148  Pa.  .587, 

22  Van  Rensselaer  v.  Snyder,  13  24  Atl.  119;  Helser  v.  Pott,  3  Pa.  179; 
N.  Y.   (3  Kern.)   299.  Seyfert  v.  Bean,  83  Pa.  450;  Manuel 

23  Butcher  v.  Culver,  24  Minn.  584.   v.  Reath,  5  Phila.  (Pa.)  11;    McKen- 
24Conkey    v.    Hart,    14    N.    Y.    (4    zie  v.   Ropp^-^   2   Strob.    (S.  C.)    306. 

Kern.)  22.  There   can   consequently   be  no   dis- 

25  Hale  V.  Burton,  Dud.  (Ga.)  105;  tress    by    a    remainderman    on    the 

Sims  T.  Price,  123  Ga.  97,  50  S.  E.  lessee  of  the  life   tenant.     Murr  v. 

961;    Marr  v.   Ray,   151   111.    340,    37  Glover,    34   111.   App.    373. 

N.  E.  1029,  26  L.  R.  A.  799;  McGillick  26  Cohen  v.  Broughton,  54  Ga.  296. 

V.     McAllister,     10     111.     App.     (10  27  Bridges  v.  Smyth,  5  Bing.  410. 
Bradw.)  40;  Murr  v.  Glover,  34  111. 


§  326 


CHARACTER  OF  DEMISE.  1989 


rent,  since  he  has  no  reversion,28  though  he  has  such  power  if  he 
makes  a  sublease  reserving  rent.-'^ 

That  the  lessor  had  at  the  time  of  the  lease  no  title  to  the  prem- 
ises does  not,  it  has  been  decided,  affect  the  validity  of  the  dis- 
tress j^o  though  in  a  modern  English  case^i  the  view  has  been  as- 
serted that  a  third  person  whose  chattels  have  been  distrained 
can,  though  the  tenant  cannot,  assert  tne  lacK  ol  title  m  tHe  lessor. 
These  cases  have  been  previously  discussed.32 

In  England  it  has  been  decided  that  one  may,  by  express  agree- 
ment, give  a  power  of  distress  to  another  to  secure  a  debt,  although 
no  relation  oi  tenancy  exists,-^^  b^t  that  such  a  power  could  not 
authorize  a  distress  on  the  goods  of  a  stranger."^  Such  a  power 
expressly  given  to  another  to  enter  on  one's  land  and  seize  and 
sell  one's  goods  is  a  mere  license  and  power  of  attorney. 

b.  Character  of  demise  or  lease.  It  is  sometimes  said  that,  in 
order  that  a  right  of  distress  may  exist,  there  must  be  an  "actual 
demise."  This  can  mean  merely  that  the  relation  of  landlord  and 
tenant  must  exist.  If  this  is  the  case,  the  particular  form  of  the 
demise  is  immaterial,  and  it  may,  it  seems,  as  well  be  created  by 
the  actions  of  the  parties  as  by  the  use  of  particular  forms  of 
language.^^ 

28Bac.  Abr.,  Distress  (A);  Whit-  W.  209),  or,  It  seems,  if  he  makes  a 
ton  V.  Bye,  Cro.  Jac.  486;  Anony-  lease  for  one  or  more  years.  See 
mous  V.  Cooper,  2  Wils.  375;  Farm-  Mackay  v.  Mackreth,  4  Doug.  213, 
enter  v.  Webber,  8  Taunt.  593 ;  Pas-  and  ante,  §  14  d,  at  note  524.  A  ten- 
coe  V.  Pascoe,  3  Bing.  N.  C.  898;  ant  for  five  years  may  distrain 
Lewis  V.  Baker  [1905]  1  Ch.  46;  where  he  subleases  from  year  to 
Prescott  V.  DeForest,  16  Johns.  (N.  year.  Ege  v.  Ege,  5  Watts  (Pa.)  134. 
Y.)  159;  Ege  V.  Ege,  5  Watts  (Pa.)  so  jelly  v.  Arbuthnot,  4  De  Gex  & 
134;  Ragsdale  v.  Estis,  1  Rich  Law  J.  224;  Morton  v.  Woods,  L.  R.  3  Q. 
(S.'c.)  429.  It  is  not  entirely  clear  B.  658,  L.  R.  4  Q.  B.  293;  Ex  parte 
why  a  rent  so  reserved  is  not  a  rent  Punnett,  16  Ch.  Div.  226;  Giles  v. 
Beck  within  stat.  4  Geo.  2,  c.  28,  §  5  Ebsworth,  10  Md.  333. 
(ante,  at  note  11),  but  it  has  never  si  Tadman  v.  Henman  [1893]  2  Q. 
been  so  regarded.  See  Brady,  Dis-  B.  168. 
tresses,  68,  note   (g).  32  See  ante,  §  78  c  (5). 

29  Burne  v.  Richardson,  4  Taunt.  ss  Chapman  v.  Beeoham,  3  Q.  B. 
720;  Harrison  v.  Guill,  46  Ga.  427.  723;  Iredale  v.  Kendall,  40  Law  T. 
A  tenant  from  year  to  year  has  a    (N.  S.)    362. 

reversion     authorizing     a     distress,       s*  Gibbs  v.  Cruikshank,  28  Law  T. 
when  he  makes  a  lease  from  year  to    (N.   S.)   104. 
year    (Curtis   v.   Wheeler,   IMoody   &       ss  See  ante,  §  17. 
M.  493;  Oxley  v.  James,  13  Mees.  & 


1990  DISTRESS.  §  326 

Provided  the  lessee  enters,  the  fact  that  the  lease  is  void  as 
vdthin  the  statute  of  frauds  does  not  prevent  a  distress,  the 
lessee  becoming  a  tenant  at  will  or  periodic  tenant  at  the 
rent  named,^^  and  the  landlord  of  a  tenant  at  will  having  a 
right  at  common  law  to  distrain.^^  An  attornment  by  the 
occupant  of  land  to  another  at  a  fixed  rent  is  likewise  suffi- 
cient to  give  the  latter  a  right  of  distress.^^ 

It  has  been  decided  that  if  a  lease  is  invalid  as  being  given 
for  an  unlawful  purpose,  there  is  no  right  of  distress.^^  This 
is  presumably  based  on  the  theory  that  no  relation  of  tenancy 
is  created  by  such  a  lease,  the  intended  lessee  being  in  effect 
one  in  possession  of  another's  premises  without  right,  but 
apart  from  this,  the  stipulation  for  the  payment  of  rent  for 
an  invalid  purpose  is  void,  and  there  is  consequently  no  rent 
to  support  a  distress.^*^ 

c.  Possession  under  contract  for  lease.  "When  one  goes  into 
possession  under  an  executory  agreement  for  a  lease,  he  is  ordi- 
narily to  be  regarded  as  a  tenant  at  will  or  periodic  tenant,'*^  and, 
consequently,  the  proposed  lessor  has  a  right  of  distress,  provided 
there  is  a  stipulation  for  the  payment  of  rent  during  such  occu- 
pancy before  the  conveyance  of  the  legal  title.^^     ^nd  that  such 

36  Morton   v.   Woods,    L.   R.    4   Q.  tween  one  furnishing  supplies  to  one 

B.  293;  Roberts  v.  Tennell,  14  Ky.  (4  already    in    possession    as    another's 

Litt.)  28G;  Gudgell  v.  Duvall,  27  Ky.  tenant,  so  as  to  give  a  right  of  dis- 

(4   J.    J.    Marsh.)    229;    Edwards   v.  tress  under  the  statute  for  such  sup- 

Clemons,    24    "Wend.     (N.    Y.)     480;  plies,  was  not  recognized. 

Schuyler  v.  Leggett,  2  Cow.   (N.  Y.)  39  Gallagher  v.   McQueen,   35   New 

660;    Marr  v.  Ray,  151  111.  340,  37  N.  Br.   198. 

E.  1029,  26  L.  R.  A.  799  n.     See  ante,  *"  See    ante,     §    40.     In    the    case 

§  25  g  (1).  cited  the  discussion  was  entirely  di- 

3T  Litt.  §  72;  Morton  v.  Woods,  37  rected  to  the  question  whether  the 
L.  J.  Q.  B.  at  p.  248,  per  Lord  Black-  courts  should  aid  the  tenant  by  al- 
burn, lowing    him    to    maintain    replevin 

38  Pinhorn     v.     Souster,     8     Exch.  under  such  circumstances.     The  de- 

763;    Brown    v.    Metropolitan    Coun-  cision  in  favor  of  the  tenant  on  this 

ties    &   General   Life   Assur.   Soc,    1  point   was    by    a   majority   of   three 

El.  &  El.  832;   Jolly  v.  Arbuthnot,  4  judges  to  two. 

De  Gex  &  J.  224;   Morton  v.  Woods,  4i  See  ante,  §  65.  , 

L.  R.  3  Q.  B.  658,  4  Q.  B.  293.     But  in  42  Anderson  v.   Midland   R.   Co.,   3 

Coker  v.  Britt,  78  Miss.  583,  29   So.  El.  &  El.  614,  distinguishing  Dunk  v. 

833,   the  possibility  of  the   creation  Hunter,  5  B-^rn.  &  Aid.  322;  Hegan  v. 

of    the    relation    by    agreement   be-  Johnson,  2  Taunt.  148. 


§  326 


EFFECT  OF  TRANSFER  OF  INTEREST.  1991 


rent  is  payable  would  ordinarily  be  shown,  for  this  as  for  other 
purposes,  by  the  tenant's  payment  of  one  installment  tliereolV^ 
or  acknowledgment  that  it  is  due/^^  the  tenant  thereby  becoming 
a  periodic  tenant.^^  if  there  is  nothing  to  show  an  agreement  to 
pay  rent  pending  the  execution  of  the  agreed  lease,  there  is  no 
rent  to  be  distrained  for.  There  are  indeed  cases  which  base  the 
inability  of  the  proposed  lessor  to  distrain  upon  the  theory  that  no 
tenancy  is  created  by  the  entry  under  the  agreement  unless  rent 
is  agreed  to  be  paid  or  admitted  to  be  due,-*°  but  such  theory  is 
not  in  accord  with  the  decisions  that  one  entering  under  such  an 
agreement,  even  though  not  paying  rent,  is  a  tenant  at  will.-*^ 

d.  Effect  of  transfer  of  interest.  At  common  law,  a  landlord 
who  has  transferred  the  reversion,  retaining  the  rent,  cannot  dis- 
train for  rent  subsequently  falling  due,  the  rent  being  no  longer 
a  rent  servicers  Presumably,  however,  in  England,  by  force  of 
St.  4  Geo.  2,  c.  28,  §  5,^^  he  can  so  distrain  at  the  present  day, 
the  rent  retained  by  him  being  a  rent  seek  within  that  act.  And 
in  several  states  one  who  has  thus  parted  with  the  reversion, 
retaining  the  rent,  might  have  a  right  to  distrain  by  reason  of 
a  statutory  provision  giving  the  right  of  distress  to  persons  en- 
titled to  rent.^o  The  English  statute  does  not,  it  appears,  enable 
one  who  has  transferred  the  reversion  without  retaining  the  rent 
to  distrain  for  rent  which  accrued  while  the  reversion  was  in 
him.^i 

43  Knight  V.  Bennett,  3  Bing.  361;  Counties  Life  Ins.  Soc,  1  EI.  &  El. 
Mann  v.  Lovejoy,  Ryan  &  M.  355.  832. 

44  Cox  V.  Bent,  5  Bing.  185;  Vin-  In  Walbridge  v.  Pruden,  102  Pa.  1, 
cent  V.  Godson,  4  De  Gex,  M.  &  G.  it  is  said  that  "it  cannot  be  doubted 
54g  that  a  lessor  who  has  parted  with  all 

45  See  ante,  §  65,  at  note  51.  his  interest  in  the  demised  premises 

46  See  Schuyler  v.  Leggett,  2  Cow.  has  no  right  to  distrain  for  rent  in 
(N.  Y.)  660,  and  cases  cited  in  arrear,"  but  there  the  facts  were 
notes  10  and  11,  supra.  that  a  tenant,  who  had  no  further  in- 

47  See  ante,  §  65,  note  49.  terest,  since  his  term  had  come  to 
4H  TJtt.  §  226.  an  end,  merely  relinquished  possess- 
4!)  See  ante,  at  note  11.  ion  to  his  landlord,  and  it  was  held 
r.o  See  Delatoare  Rev.  Code  1893,  p.  that  thereafter  he  could  not  distrain 

868,  §  20;  Georgia  Code  1905,  §  4818;  on    a    subtenant.      The    mere    relin- 

Florida  Gen.   St.   1906,  §   2240;    Yir-  quishment   of   possession,    to    which 

ginia  Code  1904,  §   2788;    West  Yir-  the  tenant  had  no  further  right,  cer- 

ginia  Code  1006.   §  3401.  tainly  did   not  constitute  a  parting 

Bi  See      Brown     v.      Metropolitan  with  any  interest.     His  inability  to 


1992 


DISTRESS. 


§  326 


If  there  are  two  or  more  joint  lessors,  and  one  transfers  his 
interest  in  the  reversion  to  a  stranger,  the  lessors,  it  has  been 
decided,  cannot  thereafter  distrain  for  rent  due  before  such  trans- 
fer, since  they  have  not  the  reversion.  Consequently,  one  join'o 
tenant  of  the  reversion  may  thus,  by  transferring  his  share,  de- 
prive the  others  of  the  right  of  distress.^^ 

The  making  of  a  second  lease  by  a  lessor,  which  is  to  take 
effect  only  upon  the  expiration  of  a  prior  lease  for  years,  does  not 
involve  a  transfer  of  the  reversion,^^  ^nd,  consequently,  does  not 
affect  the  lessor's  right  to  distrain  for  rent  under  the  first  lease.^"* 
But  if  the  second  lease  is  to  take  effect  immediately  in  interest,^^ 
that  is,  if  it  is  a  concurrent  lease  as  distinguished  Irom  one  in 
reversion,^^  the  second  lessee  has  the  right  of  distress.^'^ 

In  Texas,  where  the  remedy  by  distress  is  essentially  a  means 
for  the  enforcement  of  a  statutory  lien  on  the  tenant's  goods,  one 
may  distrain  for  rent  due  to  him  even  after  transferring  the 
reversion. ^s 

One  to  whom  the  rent  alone,'^^  or  a  claim  for  past  due  rent,^^ 


distrain  might  have  been  based  on 
the  (questionable)  theory  that  the 
estoppel  of  a  tenant  (here  the  sub- 
tenant) to  deny  his  landlord's  title 
does  not  preclude  him  from  assert- 
ing the  termination  of  such  title 
(ante,  §  78  p    [3]). 

52  Stavely  v.  Allcock,  16  Q.  B.  636. 

53  See  ante,  §  146  d,  at  note  23. 

54  Smith  V.  Day,  2  Mees.  &  W.  684. 
And  the  reversionary  lessee  has  no 
right  of  distress.  Lewis  v.  Baker 
[1905]  1  Ch.  46. 

55  Hessel  v.  Johnson,  142  Pa.  8,  21 
Atl.  794,  11  L.  R.  A.  855.  The  case 
of  Keaton  v.  Tift,  56  Ga.  446,  per- 
haps involves  the  same  view.  It  is 
there  said  that  when  the  owner 
turns  over  to  another  the  right  to 
control  and  collect  the  rent  for  a 
certain  year,  the  latter  becomes  the 
landlord  and  may  distrain. 

56  See  ante,  §  146  d,  at  note  24. 
57Litt.  !;  228. 

58  Meyer  v.  Oliver,  61  Tex.  584. 
68Litt.  §§  225,  228;  Hutsell  v.  De- 


posit Bank  of  Paris,  102  Ky.  410,  43 
S.  W.  469,  39  L.  R.  A.  403.  In  Scott 
V.  Berry,  46  Ga.  394,  it  is  said  that 
the  holder  of  a  rent  note  cannot  dis- 
train as  such,  not  being  the  land- 
lord, but  that  the  holder  of  such  a 
note,  though  it  is  made  payable  to 
the  owner  of  the  demised  premises 
or  bearer,  is  presumed  to  be  a 
(mesne)  landlord  and  so  entitled  to 
distrain.  In  Bolton  v.  Duncan,  61 
Ga.  103,  it  seems  to  be  assumed  that 
the  unqualified  assignee  of  a  rent 
note    can    distrain. 

In  Keeley  Brew.  Co.  v.  Mason,  102 
111.  App.  381,  it  is  decided  that  an 
assignment  by  the  lessor  of  all  his 
right,  title  and  interest  in  and  to 
the  lease  is  sufficient  to  pass  all  the 
lessor's  interest  in  the  land  as  well 
as  the  rents,  and  enables  him  to 
distrain.  Ordinarily  a  transfer  In 
such  language  would  be  construed  as 
transferring  the  rent  only.  See 
ante,  §  146  b. 


§  326 


EFFECT  OF  EXPIRATION  OF  TERM.  1993 


is  assigned,  does  not  thereby  become  the  landlord  or  reversioner, 
and  has  ordinarily  no  right  of  distress.  But  a  statute  giving  a 
right  of  distress  to  the  "assignee"  of  the  lessor  has  been  re- 
garded as  authorizing  it  in  favor  of  one  to  whom  the  rent  alone 
is  assigned,^!  and  the  same  would  seem  to  be  the  effect  of  a 
statute,  such  as  is  found  in  some  states,«2  giving,  in  broad  terms, 
the  right  of  distress  to  persons  entitled  to  rent.^^  Where  dis- 
tress is  the  method  named  for  enforcing  the  statutory  lien  for 
rent,  and  an  assignee  of  the  lien  is  given  by  statute  all  the  rights 
of  the  assignor,"*  the  remedy  is,  it  seems,  available  to  an  assignee 
of  the  rent  alone. 

A  statute,  similar  to  that  of  32  Ilcn.  8,  c.  34,65  giving  to  the 
grantee  "of  demised  lands,  tenements  and  rents"  the  same  reme- 
dies for  the  nonperformance  of  covenants  and  the  nonpayment  of 
rent  as  his  grantor  might  have  had,  has  been  decided  to  give  no 
right  of  distress  to  the  assignee  of  rent  in  arrear,  the  intent  of 
the  statute  being  entirely  different,  to  give  a  right  of  action  on 
the  covenants  of  the  lease.^^ 

In  one  state  it  has  been  decided  that  the  landlord  may  dis- 
train in  his  own  name  for  the  use  of  another.^^  Such  other 
would  ordinarily,  it  appears,  be  one  to  whom  the  rent  has  been 
transferred  without  the  reversion.  In  England,  it  seems,  one  to 
whom  the  landlord  transfers  the  rent  without  the  reversion  would 
have  a  right  of  distress  by  force  of  St.  4  Geo.  2,  c.  28  ^  5,<58  giving 
a  right  of  distress  for  a  rent  seck,^^  a  rent  so  severed  from 
the  reversion  constituting  at  common  law  a  rent  of  that  char- 
acter.'^'^ 

e.  Effect  of  expiration  of  term.  At  common  law  there  was  no 
right  of  distress  after  the  expiration  of  the  term,  even  though 
the  tenant  still  retained  possession,  since  there  then  ceased  to 
be  any  "privity"  between  him  and  his  former  landlord."^!     For 

eosiocum  v.  Clark,  2  Hill  (N.  Y.)  ss  See  ante,  §  149  b  (1). 

475;  Wright  &  Co.  v.  Link,  34  Miss.  ee  Slocum  v.  Clark,  2  Hill  (N.  Y.) 

266.  475. 

eiCoker  v.  Britt,  78  Miss.  583,  29  «?  Joiner    v.    Singletary,    106    Ga. 

So.  833:    Manis  v.  Flood,  19  Tex.  Civ.  257,  32  S.  E.  90. 

App.  591,  47  S.  W.  1017.  ««  See  ante,  at  note  11. 

62  See  ante   note  50.  «»  It  Is  so  decided  in  Hope  v.  White, 

63  See  Lathrop  &  Co.  v.  Clewis,  63  17  U.  C.  C.  P.  52,  19  U.  C.  C.  P.  479. 
Qa,.  282.  ■'•*  ^^e  ante,  §  167,  at  note  14. 

64  See  ante,  §  321  e  (1)  at  note  182.  ti  Bro.  Abr.,  Distress,  74;  Bradby, 


1994  DISTRESS.  §  326 

this  reason  no  distress  could  be  made  at  common  law  for  rent 
falling  due  the  last  day  of  the  term/^  since  the  rent  was  not  in 
arrear  till  midnight  of  that  day^^  and  there  could  be  no  dis- 
tress for  rent  not  dueJ^  It  has  been  decided  that  the  fact  that 
a  renewal  lease  is  made  by  the  same  landlord  to  the  tenant  does 
not  make  the  term  so  created  a  part  of  the  first  term  so  as  to 
extend  the  right  of  distress  for  rent  accruing  under  the  first 
lease  till  the  termination  of  the  second  lease.'^^ 

The  common-law  rule  referred  to  was  changed  by  St.  8  Anne, 
c.  14,  §§  6,  7,  making  it  lawful  "for  any  person  or  persons  hav- 
ing any  rent  in  arrear  or  due  upon  any  lease  for  life  or  lives, 
for  years  or  at  will,  ended  or  determined,  to  distrain  for  such 
arrears,  after  the  determination  of  the  said  respective  leases,  in 
the  same  manner  as  they  might  have  done,  if  such  lease  or 
leases  had  not  been  ended  or  determined,"  "provided  that  such 
distress  be  made  within  the  space  of  six  calendar  months  after 
the  determination  of  such  lease,  and  during  the  continuance  of 
such  landlord's  title  and  interest,  and  during  the  possession  of 
the  tenant  from  whom  such  arrears  became  due."  This  statute, 
it  has  been  held,  does  not  apply  in  case  the  tenant  continues  in 
possession  of  the  whole  or  a  part  of  the  premises  under  a  new 
lease.'''^ 

The  statute  referred  to  is  in  force  in  at  least  one  state  -^"^  and 

Distress,    90;     Bac.    Abr.,     Distress  tlie  whole   nine  years'   rent   at  the 

(A);  Williams  v.  Stiven,  9  Q.  B.  14;  end  of  that  time. 

Stanfill  V.  Hickes.  1  Ld.  Raym.  280;  76  Wilkinson  v.  Peel  [1895]  1  Q.  B. 

Soper  V.  Brown,  4  U.  C.  Q.  B.  (O.  S.)  516.     In    this    case   one    of   the   two 

103.  judges    (Lawrence,    J.)     undertakes 

T2  Co-   Litt.    47  b.  to    distinguish   Nuttall    v.   Staunton, 

73  See  ante,  §  172  h.  4  Barn.  &  C.  51,  but,  it  is  submitted, 

74  See  post,  §  333  a.  quite  unsuccessfully.     In  the  earlier 

75  Webber  v.  Shearman,  2  Denio  ^^^^  ^^  ^^g  decided  that  the  stat- 
(N.    Y.)    362,    reversing    6_  Hill    (N.  ^^^  ^.^^   ^p^j^  ^^^^   ^^^   ^^^^^^  ^^. 


mained  in  possession  of  part  of  the 
premises  by  agreement  with  the 
landlord.   •  Perhaps   the  cases   might 


Y.)     20,    and     distinguishing    Sher 
wood  V.  Phillips,  13  Wend.    (N.  Y.) 
479,  where,  by  an  obscure  process  ot 
reasoning,  it  was  held  that  if  a  les- 
see   for    two    years    held    over    for   ^«  reconciled  by  regarding  the  ten- 
seven   more   years,   the   whole   time   ant  in  the  earlier  case  as  continuing 
of  the  holding  was  to  be  regarded    on    taie    premises    as    licensee    and 
as  one  tenancy   for  nine   years,  en-    not  as  tenant. 
abling  the  landlord  to  distrain  for       77  Maryland        (see       Alexander's 


„  09Q  EFFECT  OF  FORFEITURE.  1995 

m  others  it  has  been  re-enacted  with  little  or  no  changejs     In 
Pennsylvania  the  statute  allows  distress  after  the   end  of  the 
term,  provided  only  it  is  during  the  continuance  of  the  lessor's 
title  and  interest,^^  no  particular  period  of  time  being  named 
within  which  the  distress  must  be  madc;8«  while  in  Illinois  dis- 
tress is  allowed  during  six  months  after  the  expiration  of  the 
tenan.-,y,  without  the  imposition  of  any  other  restriction.si     In 
Virginia  and  West  Virginia  a  distress  may,  it  seems,  be  made 
at  any  time  after  the  term,  provided  only  the  rent  is  not  more 
than  a  named  period  in  arrear;82  and  elsewhere  the  statutory 
rin-ht  of  distress  has  been  regarded  as  independent  of  the  contin- 
uance of  the  term,  owing  to  the  fact  that  the  Hen  tor  rent  to 
enforce   which   distress    is    allowed   continues  thereafter.s^     in 
Kentucky   it  was  decided  that  the  requirement  of  the  statute 
that  the  "tenant  must  be  in  possession  at  the  time  of  the  distress 
was  in  effect  repealed  by  the  statutory  change  in  the  law  allow- 
ing a  distress  on  goods  of  the  tenant  without  regard  to  whether 
they  are  located  on  or  off  the  premises.^^     It  was  decided  in  New 
York  that  a  statute,  authorizing  a  distress  six  months  after  the 
end  of  the  term  "either  upon  any  goods  remaining  on  the  de- 
mised  premises,   or  upon   any   goods  that   may   have   been   re- 
moved," was  not  to  be  regarded  as  intended  to  change  the  former 
law,  by  which  the  tenant  was  required  still  to  be  in  possession, 
so  as  to  authorize  a  distress  upon  goods  belonging  to  one  of  the 
tenants  under  the  original  lease,  who  had  taken  a  new  lease  to 
himself  alone.^^ 

f.    Effect  of  forfeiture.     There  is  at  common  law  no  right  of 

British    statutes    in    force   in   Mary-    246;  Whiting  &  Co.  v.  Lake.  91  Pa. 

land  )  ^^^• 

7s  Delaware  Rev.  Code  Isn.v.SQ^,        «i  Kurd's   Rev.    St.    1905.    c.    80,    5 

§   21    (no  six  months'   restriction);  28.     See    Werner    v.    Ropiequet,    44 

Mississippi  Code  1906,  §  2852;   Neto  111.  522. 

jerse?/  1  Gen.  St.  1211,  §  17  (or  with-  ^2  Virginia    Code     1904.     §     2790; 

in  thirty  days  if  landlord's  title  has  West  Virginia  Code  1906,   §   3403. 

ceased     or    tenant    has     removed);  83  Meyer    v.    Oliver,    61    Tex.    584. 

South  Carolina  Civ.  Code.  §  2431.  And   see   Scruggs  v.  Gibson.  40  Ga. 

79  Pepper    &    Lewis'     Dig.     Laws,  519. 

"Lanni.  &  Ten."  §  1.  -  Long^e  v.  Colton,  41  Ky.    (2  B. 

80  See  Lichtenthaler  v.  Thompson,    Mon.)   115. 

13  Serg.  S:  R.   (Pa.)  157.  15  Am.  Deo.        ^r.  Bell   v.    Potter,   6   Hill    (N.   Y.) 
581;  Clifford  v.  Beems,  3  Watts  (Pa.)    497. 


1996  DISTRESS.  §  327 

distress  after  the  enforcement  of  a  forfeiture  by  tlie  landlord 
for  breach  of  condition,^  and  this  rule  has  been  regarded  as 
unaffected  by  the  statute  8  Anne,  c.  14,  above  referred  to,  au- 
thorizing a  distress  after  the  term  is  "ended  or  determined. "^''•^^ 
g.  Effect  of  surrender.  Since  to  support  a  distress  the  re- 
lation of  tenancy  must  exist,  it  cannot  be  made  after  the  tenant 
has  surrendered  his  leasehold  interest.^^  and  even  though  he 
agrees  to  continue  to  pay  "rent,"  this  is  a  mere  personal  obliga- 
tion, and  the  periodical  payments  are  not  rent  for  which  he  can 
distrain.^^  A  mere  unexecuted  agreement  to  surrender  does 
not,  it  seems,  affect  the  right  of  distress,^^  nor  does  an  alleged 
surrender  to  which  the  landlord  has  not  eonsented.^^  A  sur- 
render subsequent  to  the  seizure  cannot  affect  the  validity  there- 
of.^3 

By  St.  4  Geo.  2,  c,  28,  §  6,  it  was  provided  that  where  a  lease 
is  surrendered  in  order  to  be  renewed,  the  lessee  shall  have  the 
same  remedy  by  distress  for  rent  due  from  his  under  lessee  as 
if  the  original  lease  had  been  kept  on  foot,  while  the  chief  land- 
lord shall  have  the  remedy  by  distress,  upon  premises  comprised 
in  such  under  lease,  for  the  rent  reserved  in  the  new  lease,  only 
to  the  amount  of  that  reserved  in  the  original  head  lease. 

§  327.    For  v/hat  distress  may  be  made. 

a.  Not  for  periodic  payments  other  than  rent.  In  the  ab- 
sence of  a  statutory  provision,^'*  or  an  express  provision  of  the 
lease,''^  to  the  contrary,  the  landlord  has  a  right  to  distrain  only 
for  services  reserved  by  the  lease,  or  for  rent  properly  so  called. 
Consequently,  there  is  no  right  to  distrain  for  sums  payable  for 

88  Grimwood  v.  Moss,  L.  R.  7  C.  P.  576.  See  Coupland  v.  Maynard,  12 
360.  East,  134. 

87,  88  patteson,  J.,  in  Doe  d.  David  so  Bain  v.  Clark,  10  Johns.  (N.  Y.) 

V.  Williams,  7  Car.  &  P.  322;  Willes,  424.     See  ante,  §  182  g,  at  note  899. 

J.,   in   Grimwood   v.   Moss,   L.  R.   7  »!  See    Coupland    t.    Maynard,    12 

C.  P.  365.     See  Baker  v.  Atkinson,  East,  134.     There  the  agreement  was 

11  Ont.   735,  14  Ont.  App.  409;  Lin-  to  surrender  on  a  condition,  which 

ton  V.    Imperial   Hotel   Co.,   16   Ont.  condition    had   not   been   performed. 

App.  337.  92  Cahill  v.  Lee,  55  Md.  319. 

89  Bain  V.  Clark,  10  Johns.  (N.  Y.)  93  Nichols  v.  Dusenbury,  2  N.  Y. 
424;    Greider's    Appeal,    5    Pa.    422;  (2  Comst.)   283. 

Dailey  v.  Grimes,  27  Md.  440   (sem-       04  See  post,  §  327  g. 
ble) ;  Lewis  v.  Brooks,  8  U.  C.  Q.  B.       os  See  post,  §  327  h, 


§  327  FOR  WHAT  IT  MAY  BE  MADE.  1997 

the  enjoyment  of  a  mere  license,^''  or  easement,^'^  though  there 
is  for  sums  payable  for  the  exclusive  enjoyment  of  part  of  a 
building  ^^  or  of  a  room.*'^ 

"Kent"  so  called,  reserved  to  a  person  other  than  the  les- 
sor, is,  as  we  have  seen,!*^"^  jiot  rent,  propcrl}^  speaking,  and 
accordingly  is  not  recoverable  by  distress.^ •'^  And  "v^ater  rent" 
which  the  lessee  has  agreed  with  the  lessor  to  jjay  to  the  munic- 
ipality cannot  be  collected  by  the  lessor  by  this  means.^*^^ 

Sums  reserved  in  a  lease  over  and  above  the  rent,  by  way  of 
compensation  for  good  will,^^^  or  by  way  of  penalty  for  breach 
of  a  covenant,^^**  are  not  rent  for  which  distress  may  be  made, 
nor  are  periodic  sums  which  the  tenant,  after  the  making  of  the 
lease,  agrees  to  pay  in  consideration  of  the  making  of  improve- 
ments by  the  landlord.^ <^^ 

In  one  state  it  has  been  held  that  where  the  lessee  agreed  to 
pay  the  lessor  for  all  gas  consumed  by  him,  distress  might  be 
made  for  a  sum  due  on  that  account.^ °^  A.nd  there  it  was  also 
held,  without  discussion,  that  a  sum  agreed  to  be  added  to  the 
rent  due,  in  consideration  of  the  lap^lord's  consent  to  accept 
an  immediate  surrender  of  the  lease,  was  rent  for  this  purpose.^"'^ 

b.  Sums  reserv^ed  on  lease  of  land  and  chattels.  When  the 
lease  includes  both  land  and  chattels,  as  in  the  case  of  a  lease 
of  a  house  with  furniture  thereip  ^^^  or  of  a  farm  with  live  stock 
thereon,!*^^  the  rent  is,  by  the  common-law  authorities,  regarded 
as  issuing  entirely  out  of  the  iand,^^*^  and  consequently  it  may 
be  distrained  for  to  the  full  o^mount  due.m     This  view,  that  the 

96  Ward  V.  Day,  4  Best  &  S.  337;  los  Smith   v,    Mapleback,    1    Term 

Rendell  v.  Roman,  9  Times  La.w  R.  R.  441. 

192.  104  Latimer  v.  Groetzinger,  139  Pa. 

87  Hancock  v.  Austin,  14  C.  B.  (N.  207,  21  Atl.  22. 

S.)    634;    Capel  v.  Buszard-  6  Bing.  loo  Hoby  v.  Roebuck,  7  Taunt.  157. 

150.  100  Fernwood     v.      Masonic      Hall 

98  Marshall  v.  Schofield  &  Co.,  52  Ass'n,  102  Pa.  307.  See  ante,  §  169  d. 
L.  J.  Q.  B.  58.  107  Brisben  v.  Wilson,  60  Pa.  452. 

99  Selby  V.  Greaves,  L.  R.  3  C.  P.  Compare  ante,  §  169. 

594.  los  Newman    v.    Anderton,    2    Bos. 

100  See  ante,  §  170.  &  P.   (N.  R.)   224. 

101  See  Ryerson  v.  Quackenbush,  io9  See  Spencer's  Case,  5  Coke,  17. 
26  N.  J.  Law,  236.  "o  See     ante,    §   169   c. 

102  Evans  v.  Lincoln  Co.,  204  Pa.  m  Newman  v.  Anderton,  2  Bos. 
448,  54  AU.  321.  &  P.  (N.  R.)  224. 


1998  DISTRESS.  I  327 

inclusion  of  chattels  in  the  lease  does  not  afTect  the  right  of 
distress,  has  been  expressly  adopted  in  several  decisions  in  this 
country.112  j^  Qjjg  state,  however,  it  is  apparently  the  rule 
that  there  can  be  no  distress  in  such  case  unless  the  lease  speci- 
fies what  proportion  of  the  rent  is  to  be  regarded  as  for  the 
use  of  the  chattels,^!^  a  view  which  considerably  restricts  the 
availability  of  the  remedy,  since  a  lease  not  infrequently  includes 
chattels  along  with  the  land,  without  any  such  specification. 

It  has  in  one  state  been  decided  that  there  is  no  right  of  dis- 
tress when  a  lump  sum  is  named  to  be  paid  for  the  use  of  the 
land  and  for  the  purchase  price  of  various  articles  thereon  of 
such  character  as  to  be  consumed  in  their  use,  unless  at  least 
the  value  of  these  articles  is  shown.i^^ 

c.  Sums  reserved  on  lease  of  land  and  incorporeal  things. 
Where  land  and  incoi-poreal  things  were  let  together  for  a  single 
rent,  and  the  lease  was  invalid  as  to  the  latter  for  lack  of  a 
seal,  no  distress  could  be  levied,  it  was  held,  since  the  rent,  though 
issuing  out  of  the  land  alone  for  purposes  of  distress,  was  pay- 
able in  part  in  respect  to  the  incorporeal  thing,  and  there  was 
no  definite  sum  payable  in  respect  to  the  land.^i^-^^^  The  incor- 
poreal thing  involved  in  this  case  was  tithes,  and  the  principle 
of  the  decision  would  seem  to  have  -no  application  in  the  case 
of  a  lease  of  land  alone,  although  easements  or  rights  of  profit 
pass  with  the  land  as  appurtenant  thereto,  they  not  being  a  dis- 
tinct subject  of  the  lease. 

d.  Certainty  of  rent.  It  is  quite  frequently  stated  that  to 
support  a  distress  a  certain  rent  must  have  been  reserved,!^'''  and 
occasionally  the  courts  have  stated  at  some  length  the  grounds 

112  Toler  V.  Seabrook,  39  Ga.  14;  us,  ne  Gardiner  v.  Williamson,  2 
Lathrop  &  Co.  v.  Clewis,  63  Ga.  282;    Barn.  &  Adol.  336. 

Sapp  V.  Elkins,  125  Ga.  459,  54  S.  E.  ^^^  See  e.  g.,  Regnart  v.  Porter,  7 

98;    Mickle  v.  Miles,  31  Pa.  20,   (lis-  Bing.    451;     United    States    v.    Wil- 

approving  Com.  v.   Contner,   18  Pa.  "^ms,  2  Cranch  C.  C.  438,  Fed.  Cas. 

439;   Stein  v.  Stely  (Tex.  Civ.  App.)  ^o.    16,710;     Smoot    v.    Strauss,    21 

32  S.  W.   782;   WilHams  T.  Howard.    ^^^-  ^^^'   ^^''  ^-  ^^^   ^^^  I"-  340, 
„  „      s    ,.r    s  o-T-7  37    N.    E.    1029,    26    L.    R.    A.    799; 

3  Mnnf.  (Va.)  277.  „  .  ,,  _  ^„  ,,.        ^^' 

Bnscoe  v.  McSlween,  43  Miss.  556; 

113  Stewart  v.  Gregg,  42  S.  C.  392,    ^^.^^  ^    ^^^^^  2  Hill   (N.  Y.)   648; 

20  S.  E.  193.  Jacks  v.  Smith,  1  Bay   (S.  C.)   315; 

114  Cranston  v.  Rogers,  83  Ga.  750,  Reeves  v.  McKenzie,  1  Bailey  L.  (S. 
10  S.  E.  364.  C.)   497. 


§  327 


FOR  WHAT  IT  MAY  BE  MADE.  1999 


on  which  snch  a  rule  is  to  be  regardec!  as  based,"''  it  being  said 
that  such  certainty  must  have  existed  at  common  law  to  enable 
the  tenant  to  know  what  sum  to  pay  in  order  to  red<^em  the 
goods  taken  as  a  pledge,  and  also  to  enable  the  landlord,  upon 
the  avowry,  to  recover  damages  for  nonpayment  or  nonperform- 
ance by  the  tenant.  But,  it  is  conceived,  the  true  and  sufficient 
ground  for  the  requirement  of  a  "certain  rent"  is  that,  as  has 
been  before  stated,ii^  there  is  no  such  thing  as  a  rent  which  is 
not  certain.  The  assertion  that  there  must  be  a  certain  rent 
to  support  a  distress  is  usually  based,  directly  or  indirectly,  on  a 
statement  of  Lord  Coke,^-o  which  is,  however,  not  that  rent  must 
be  certain,  but  that  any  service  must  be  certain,  to  support  a  dis- 
tress for  the  nonrendition  thereof,  citing  the  case  of  a  tenancy 
in  francalmoign,  in  which  there  is  no  right  of  distress  owing  to 
the  uncertainty  of  the  services.  The  asserted  rule  above  referred 
to,  that  there  must  be  a  certain  rent  reserved,  has  been  applied 
when  the  circumstances  were  such  as  to  support  a  recovery  for 
the  reasonable  value  of  the  use  and  occupation  of  the  premises,i2i 
though  no  rent  was  reserved,  the  fact  that  such  value  can  be  so 
recovered  not  authorizing  a  distress  for  such  value.^-^  The  rea- 
sonable value  of  the  use  and  occupation  thus  recoverable  by 
action  is  not  rent,  certain  or  uncertain,i23  and  it  is  for  this  rea- 
son, it  is  conceived,  rather  than  because  the  amount  is  uncertain, 
that  it  cannot  be  recovered  by  distress. 

In  connection  with  the  statement  of  Lord  Coke,  above  referred 

118  See    Valentine    v.    Jackson,    9  In    Scnig2;s    v.    Gibson,    40    Ga.    511. 

Wend.    (N.  Y.)   302;   Melick  v.  Bene-  however,  it  was  decided  tliat  where, 

diet,  43  N.  J.  Law,  425.     The  latter  upon    the    making   of   a   lease    of   a 

of  these  two   grounds   is   stated   by  farm,  nothing  was  said  as  to  rent. 

Lord  Coke.     See  Co.  Litt.  96  a;  Bac.  the  fact  that  in  that  nei2:hborhood 

Abr.,  Distress  (A).  the  agreed  rent  was  usually  a  cer- 

118  See  ante,  §  173  a.  tain    proportion    of    the    crops    ail- 

120  Co.  Litt.  96  a.  thorized  a  distress  for  such  propor- 

121  See  ante,   c.   30.  tion.     The  decision  was  by  a  major- 

122  Stay  ton  v.  Morris,  4  Har.  (Del.)  ity  of  two  .ind2:es  to  one,  and  was  to 
224:  Smoot  v.  Strauss,  21  Fla.  611;  some  extent  based  upon  the  lan- 
Tifft  V.  Verden,  19  Miss.  (11  Smedes  guage  of  the  local  statute.  Apart 
&  M.)  153;  Valentine  v.  Jackson,  9  from  the  statute  it  was  clearly 
Wend.  (N.  Y.)  302;  Farrington  v.  wronc:,  by  common-law  standards. 
Baley,  21  Wend.    (N.  Y.)    65;   Wells  123  See  ante,  §  302. 

V.   Hornish,  3  Pen.  &  W.    (Pa.)    31. 


2000  DISTRESS.  §  327 

to,  he  expressly  says  that  there  is  sufficient  certainty  if  the 
services  can  be  reduced  to  a  certainty,  or,  as  he  expresses  it, 
"there  may  be  certainty  in  uncertainty,"  and  he  instances  the 
case  of  a  holding  upon  services  consisting  of  the  shearing  of  all 
the  lord's  sheep  within  the  manor,  in  which  case  a  distress  is 
allowable,  although  the  lord  has  there  sometimes  a  greater  num- 
ber and  sometimes  a  less.  So  in  the  case  of  a  provision  for 
money  payments  in  return  for  the  use  of  the  land,  the  fact 
that  they  are  fluctuating  in  amount,  or  that  they  are  to  be  de- 
termined by  contingencies  or  facts  which  can  be  ascertained  only 
from  time  to  time  during  the  tenancy,  does  not  impair  the  right 
of  distress.^-*  The  sums  payable  are  ascertainable,  and  there  is 
consequently  a  valid  rent.  Accordingly,  periodic  payments  pro- 
portioned to  the  amount  of  the  minerals  extracted  from  the 
leased  premises,^25  qj.  h^q  bricks  made  thereon,i26  or  the  acres 
of  land  cultivated,^  27  ^re  sufficiently  certain.  And  a  distress  has 
been  upheld  when  made  for  a  monthly  rent,  due  under  an  at- 
tornment clause  in  a  building  society  mortgage,  consisting  of 
the  monthly  dues  for  subscriptions,  interest  and  fines,^2s  9,5  well 
as  for  a  rent  to  consist  of  a  certain  proportion  of  the  tolls  of  the 
mill  on  the  premises,i29  of  the  gross  receipts  of  the  hotel 
leased,^^^  and  of  the  profits  of  the  business  to  be  conducted  on 
the  premises,  the  amount  of  which  appears  from  an  examination 
of  books  of  account  stipulated  to  be  kept.^^i  n  j^as,  however, 
been  decided  that  no  distress  can  be  made  when  the  compensa- 
tion for  the  land  is  to  be  ascertained  by  arbitration.i^s 

A  distress  may  be  made,  it  has  been  decided,  for  an  increase 
of  rent  of  a  certain  amount,  as  named  in  the  lease,  for  each  acre 
of  land  converted  into  tillage,i33  or  for  an  increase  agreed  to  be 

124  Ex  parte  Voisey,  21  Ch.  Div.  129  Fry  v.  Jones,  2  Rawle  (Pa.) 
442.     See  ante,  §  173  b.  11- 

125  Daniel  v.  Gracie,  6  Q.  B.  145;  "n  Butcher  v.  Culver,  24  Minn. 
Cross  V.  Tome,  14  Md.  247;   Everett  584. 

V.  Neff,  28  Md.  176.  '"'  ^f"^^    "^^    Benedict,    43    N.    J. 

126  Daniel  v.  Gracie,  6  Q.  B.  145.  '         "  ,,-,,,     „„    ^^ 

132  Myers   v.    Mayfield,    70    Ky.    (7 

127  Thrasher  v.  Gillespie,  52  Miss,    -q^^^s    212 

^'*^-  133  See   Roulston    v.    Clarke,    2    H. 

128  Ex  parte  Voisey,  21  Ch.  Div.  El.  563;  Ex  parte  Voisey,  21  Ch.  Div. 
442.  442. 


§  327  ^^^  WHAT  IT  MAY  BE  MADE.  2001 

paid  in  case  of  the  making  by  tlie  landlord  of  improvements  to 
an  extent  named.' ^^  And  a  distress  has  been  upheld  for  rent 
which  was  made  payable  upon  a  contingency,  the  contingency 
having  occurred.' ^^  Likewise,  the  right  to  distrain  is  not  af- 
fected by  the  fact  that,  on  a  contingency  named,  the  rent  is  to 
be  reduced'^®  or  is  to  cease  entirely .'2''' 

It  has  been  decided  that  no  distress  can  be  made  when  the 
agreement  for  compensation  for  the  use  of  the  land  is  so  indefi- 
nite as  not  to  state  when  it  is  to  accrue  or  whether  it  is  for  the 
future  or  previous  occupation  of  the  land.'^^  There  would  seem, 
in  such  case,  to  be  no  valid  reservation  of  rent. 

There  is  no  right  of  distress  as  for  rent  accruing  during  a 
wrongful  holding  over  by  a  tenant,' ^9  since  there  is  no  agreed 
rent  for  such  period  of  over  holding.  The  landlord's  remedy 
is  by  an  action  for  use  and  occupation,' ^^  or  preferably,  it  would 
seem,  in  some  jurisdictions,  for  the  statutory  penalty.'"*' 

In  the  case  of  an  apportionment  of  rent  by  a  partition  of  the 
reversion,' 42  the  person  entitled  to  the  reversion  in  part  may 
distrain  for  his  portion.i^s  And  so  on  apportionment  by  evic- 
tion under  title  paramount,  the  landlord  retains  a  right  of  dis- 
tress for  an  apportioned  part  of  the  rent-'-^^     In  such  cases  the 

i34Detwiler    v.    Cox,    75    Pa.    200  Shearman,   3   Hill    (N.    Y.)    547,   in 

($30    for    each     $500    of    improve-  which   a  right  to   distrain  for  rent 

ments).     See  Ex     parte  Voisey,  21  accruing    after    the    termination   of 

Ch.  Div.   442.  the     original     lease     is     supported, 

135  Goodwin  v.  Sharkey,  88  Pa.  there  seems  to  have  been  a  permis- 
149;  Ege  v.  Ege,  5  Watts  (Pa.)  134.  sive   holding  over,   in   effect  an  ex- 

136  Selby  v.  Greaves,  L.  R.  3  C.  tension  of  the  original  term.  The 
P.  594  (deductions  in  case  of  failure  case  first  cited  is  exceedingly  ob- 
of  power) ;   Bicltle  v.  Beatty,  17  U.  scure.    See  ante,  note  75. 

C.   Q.  B.  465    (deduction  in  case  of       i4o  See  ante,  §§  211,  306  d. 
sale    of   part).  i4i  See   ante,   §   213. 

137  Reeves   v.   McKenzie,   1   Bailey       i42  See  ante,  §  175  b. 

Law   (S.  C.)   497.  1432  Co.  Inst.  503,  504;  Roberts  v. 

i38Dailey  v.  Grimes,  27  Md.  440.  Snell,    1    Man.    &   G.    577;    Rivis    v. 

i39Alford   v.   Vickery,    Car.   &  M.  Watson,    5    Mees.    &    W.    255;     Do 

280;   Jenner  v.  Clegg,  1  Moody  &  R.  Coursey  v.   Guarantee  Trust  &   De- 

213;    Soper  v.  Brown,  4  U.  C.  Q.  B.  posit  Co.,  81  Pa.  217. 

(0.  S.)    103.     See  Diller  v.  Roberts,  144  Tunis  v.  Grandy,  22  Grat.  (Va.) 

18  Serg.  &  R.  (Pa.)  60,  15  Am.  Dec.  109;   Neale  v.  Mackenzie,  1  Mees.  & 

578.     In    Sherwood    v.    Phillips,    13  W.  747. 
Wend.     (N.     Y.)     479;     Webber    v. 

L.  and  Ten.  126. 


2002  DiaffRESS.  §  327 

fact  that  the  proportionate  part  of  the  rent  has  to  be  ascertained 
does  not  exclude  the  remedy. 

The  tenant  cannot  by  his  own  act  apportion  the  rent  for  the 
purpose  of  distress,  and  consequently,  if  by  assignment  the  lease- 
hold interest  in  different  parts  of  the  premises  becomes  vested 
in  different  persons,  distress  may  be  made  on  one  of  such  parts 
for  the  whole  rent.^'^^ 

e.  Rent  payable  in  specific  articles.  The  fact  that  the  agreed 
rent  consists  of  the  delivery  of  articles  other  than  money,  as,  for 
instance,  of  a  certain  amount  of  minerals,!*^  or  of  a  certain  num- 
ber of  bales  of  cotton  or  bushels  of  wheat,^*'^  or  that  the  sum 
named  as  rent  is  to  be  paid  by  the  delivery  of  specific  articles 
at  the  market  price,^*^  does  not  impair  the  right  of  distress. 

In  several  jurisdictions  it  has  been  held  that  distress  may  be 
made  even  when  the  rent  named  in  the  lease  is  not  a  specific 
quantity  of  the  articles  produced  on  the  land,  but  merely  a 
named  fractional  part,  as  a  quarter  or  a  half,  of  what  may  be 
produced  in  each  year,^''^  a  character  of  rent  which,  as  we  have 
before  seen,  is  very  common  in  this  country. ^^o  jj^  Qjje  juris- 
diction, however,  it  has  been  held  that  such  a  rent  does  not 
satisfy  the  requirement  of  certainty.^^^  In  several  jurisdictions 
distress  for  rent  payable  in  crops,  produce,  or  other  things,  is  ex- 
pressly authorized.1^2     n  j^^s  been  decided  that,  even  though  a 

145  1  Rolle's  Abr.  671;  Curtis  v.  App.  349;  Fry  v.  Jones,  2  Rawle 
Spitty,  1  Bing.  N.  C.  756;  Woodcock  (Pa.)  12;  Steel  v.  Frick,  56  Pa.  172; 
V.  Titterton,  12  Wkly.  Rep.  865.  Brown   v.    Jaquette,    94    Pa.    113,    39 

146  Owens  V.  Conner,  4  Ky.  (1  Am.  Rep.  770;  Brown  v.  Adams,  35 
Bibb)  605;  Jones  v.  Gundrim,  3  Tex.  447;  Tucker  v.  Hasson,  32  Tex. 
Watts  &  S.  (Pa.)  531;  Brooks  v.  536;  Prestons  v.  McCall,  7  Grat. 
Wilcox,  11  Grat.  (Va.)  411.  (Va.)   121   (two-thirds  of  salt  manu- 

i47Toler   r.   Seabrook,   39   Ga.   14;  factured). 

Wilkins    v.    Taliafero,    52    Ga.    208;  iso  See  ante,  §§  20,  253. 

Clark    V.    Fraley,    3    Blackf.     (Ind.)  isi  Clark     v.     Fraley,     3     Blackf. 

264;  Brooks  v.  Cunningham,  43  Miss.  (Ind.)     264;     Bowser     v.     Scott,     8 

556;    Fraser  v.  Davie,   5   Rich.   Law  Blackf.  (Ind.)  86.    In  Indiana  it  was 

(S.    C.)     59.                                          '  also  held  that  rent  payable  in  Indi- 

148  Thompson  v.  Marsh,  2  U.  C.  Q.  ana  scrip  could  not  be  distrained  for, 
B.    (0.   S.)    389.  the  agreement  being  in  effect  mere- 

149  Nowery  v.  Connolly,  29  U.  C.  ly  to  pay  the  market  value  of  the 
Q.  B.  39  (semble);  Dick  v.  Winkler,  scrip.  Purcell  v.  Thomas,  7  Blackf. 
12  Manitoba,  624;   Payne  v.  Holt,  61  (Ind.)    306. 

Ga.    355;     Sheetz    v.    Baker,    38    111.       ^^^  Delaioare    Rev.    Code    1893,    p. 


.  327  FOR  WHAT  IT  MAY  BE  MADE,  2003 

lease  for  a  rent  to  consist  of  a  certain  proportion  of  the  crop  pro- 
vided that  the  damage  resulting  from  the  tenant's  failure  to 
grow  a  crop  of  reasonable  size  should  be  regarded  as  rent,  and 
though  the  statute  gave  a  lien  for  the  faithful  performance  of 
the  terms  of  the  lease,  the  amount  of  such  damage  could  not  be 
recovered  by  distress.^^^ 

f.  Distress  for  services  other  than  rent.  Distress  may  be 
made  for  services  not  involving  the  payment  of  money  or  the 
delivery  of  any  specific  articles  to  the  landlord.i^*  Thus,  a  dis- 
tress has  been  regarded  as  valid  when  the  tenant  held  by  the 
service  of  cleanin*  the  parish  church,i55  or  of  ringing  the  church 
bell  at  stated  hours.i^e 

It  has  in  one  state  been  decided  that  distress  might  be  made 
upon  the  tenant's  failure  to  put  the  premises  in  repair,  when  he 
had  agreed  to  do  this  in  part  return  for  the  use  of  the  land.i^T 
Whether  such  an  obligation  to  make  certain  repairs  would  at 
common  law  be  regarded  as  a  subject  for  distress  may  be  ques- 
tioned, the  services  referred  to  in  the  books  being  periodical  in 
character,  and  not  to  be  performed  once  for  all.  In  the  case  re- 
ferred to  it  is  said  that  "the  repairing  must  be  agreed  to  be 
done  as  rent  and  not  be  a  mere  shifting  from  the  landlord  to 
the  tenant  of  the  duty  to  repair,"  but  in  any  case  such  an  agree- 

868,   §   19,  P-   870,   §   27;     Maryland  of  cotton  and  to  "fix  the  kitchen." 

Code  Pub.' Gen.  Laws  1904,  art.  53,  §§  And  see  Fountain  v.  Whitehead,  119 

10    11;    Yirginia  Code  1904,  §   2795;  Ga.  241,  46  S.  E.  104,  where  this  case 

West    Virginia    Code    1906,    §    3408.  seems  to  be  approved.     So  in  Price 

In  these  states  the  statute  provides  v.   Thompson,  4  Ga.  App.  46,   60  S. 

the  method   of  ascertaining  the  pe-  E.   800,   where  the  lessee   agreed  to 

cuniary  value   of  the  articles  to  be  repair  fences   as   part  of   the    rent, 

delivered  as  rent  for  the  purpose  of  In    Briscoe   t.   McElween,    43    Miss. 

^ig^.j.ggg  556,    it   was   held    that   no    distress 

153  Bates  V.  Hallinan,   220  111.  21,  could    be    levied    for    the    tenant's 
77  N.  E.  115.  failure  to  perform  his  agreement  to 

154  Co     Litt.    76    a;    Bradby,    Dis-  fence  the  premises,  trim  the  trees, 
tresses   c   7.  and  to   fill  the   "washes,"  the  char- 

155  Doe  d.  Edney  v.  Benham,  7  Q.  acter  of  the  fence  not  being  named, 
g   gr^g  nor  the  mode  and  extent  of  the  trim- 

"i5G  Doe   d    Edney  v.   BiUett,   7   Q.    ming,  nor  the  mode  or  material  of 
g    gryg  filling,    the    service    thus    not   being 

'isTWilkins    v.    Taliafero,    52    Ga.    sufHciently    definite   to   support   dis- 
208.     In  this  case  a  lessee  for  a  year   tress. 
had  agreed  to  pay  a  certain  amount 


2004  DISTRESS.  §  328 

ment  on  the  tenant's  part  would  presumably  be  considered  in 
determining  the  amount  of  other  rent  to  be  paid,  and  to  that 
extent  the  repairing  would  be  in  return  for  the  use  of  the  land. 

If  a  definite  money  rent  is  reserved,  the  fact  that  the  lease 
provides  for  its  payment  in  services  does  not  affect  the  right 
of  distress.^^^ 

g.  Statutory  distress  for  advances.  In  a  few  states  the  stat- 
ute authorizes  a  distress  not  only  for  rent,  but  also  for  sums  due 
by  the  tenant  to  the  landlord  on  account  of  "advances"  or  "sup- 
plies" furnished  by  the  latter  to  the  former.^ ^^  And  this  is  the 
effect  of  a  statute  giving  the  landlord  a  lien  for  such  advances 
and  supplies  and  authorizing  the  enforcement  of  the  lien  by 
distress.160 

h.  Express  stipulations.  Even  though  particular  sums  named 
in  the  lease  to  be  paid  by  the  lessee  to  the  lessor  are  not,  prop- 
erly speaking,  rent,  the  lease  may,  it  seems,  by  express  provision, 
give  a  right  of  distress  therefor,i6i  such  a  provision  being  in 
effect  the  grant  of  a  license  or  power  to  seize  the  chattels  belong- 
ing to  the  grantor.  Such  an  express  stipulation  cannot  enable 
the  landlord  to  seize  the  property  of  a  person  other  than  the 
original  lessee,  since  the  latter  has  control  of  his  own  property 
only,i<52  and  it  cannot,  it  seems,  be  effective  for  the  purpose  of 
authorizing  a  statutory  distress  as  distinguished  from  the  seizure 
by  the  landlord  allowed  by  the  common  law.^^^ 

§  328.    Things  subject  to  and  exempt  from  distress. 

a.  Things  not  belonging  to  the  tenant — (1)  Ordinarily  sub- 
ject to  distress.     At  common  law  it  is  immaterial  as  regards  the 

158  Smith  V.  Colson,  10  Johns.  (N.  may  be  made  for  a  penalty,  if  so 
Y.)  91;  Smith  v.  Fyler,  2  Hill  (N.  stipulated,  in  Latimer  v.  Groetzin- 
Y.)    648.  ger,  139  Pa.  207,  21  Atl.  22,  where  it 

159  Florida  Gen.  St.  1906,  §  2240;  was  held  that  there  could  be  no  dis- 
Mississippi  Code  1906,  §  2501.  tress    for    a    penalty    to   be   paid    in 

160  See  ante,  §  321  c  (2),  1   (2),  case  of  a  particular  use  of  the  prem- 

161  See  ante,  »<■  notes  33,  34.  In  ises,  since  the  lease  gave  in  terms 
Becker  v.  Werner,  98  Pa.  555,  there  only  a  right  of  distress  for  rent. 

Is  a  dictum  that  a  distress  may  be  iss  Thomas    v.    Cameron,    8    Ont. 

made  for  taxes,  if  it  is  so  stipulated  441. 

in  the  lease,  and  there  is  an  appar-  ics  See  Paxton  v.  Kennedy,  70  Miss. 

ent  implication  to  the  effect  that  it  865,  12  So.  546. 


§  328  ON  THINGS  NOT  BELONGING  TO  TENANT.  2005 

right  to  distrain  particular  goods  that  they  do  not  belong  to  the 
tenant,  the  theory  being  that  the  rent  is  owed  by  the  land  rather 
than  by  any  particular  person.^^^  The  goods  of  a  stranger  ^^^ 
or  of  a  subtenant  ^^^^  are  liable  to  distress  to  the  same  extent  as 
the  goods  of  the  tenant.  The  owner  of  the  goods  cannot  demand 
that  the  goods  of  the  tenant  be  first  taken/^''''  and  it  is  immaterial 
that  there  are  on  the  premises  goods  belonging  to  the  tenant 
which  are  sufficient  in  themselves  to  satisfy  the  landlord 'a 
claim.^^s 

It  has  been  remarked  by  a  great  authority  upon  the  common 
law  1^^  that  the  rule  making  the  goods  of  a  stranger,  as  well  as 
those  of  the  tenant,  subject  to  seizure  on  distress,  originally 
caused  no  harm,  since  the  landlord,  being,  at  common  law, 
unable  to  sell  the  distress,i'^o  he  usually  gave  up  the  goods  as 
soon  as  he  found  that  they  did  not  belong  to  the  tenant,  since 
their  retention  by  him  would  not  induce  the  tenant  to  pay;  but 
that  the  passage  of  the  St.  2  Wm.  &  M.  sess.  1,  c.  5,  authorizing 
the  landlord  to  sell  any  goods  seized,  and  to  apply  the  proceeds 
to  the  payment  of  the  rent  unless  the  tenant  or  owner  of  the 
goods  first  paid  it,  held  out  a  great  temptation  to  a  landlord  to 
seize  the  goods  of  a  stranger,  though  knowing  them  to  belong 
to  him  and  not  to  the  tenant. 

(2)  Things  belonging  to  tenant's  wife.  Goods  constituting 
the  separate  property  of  the  tenant's  wife  have  in  one  juris- 
diction been  held  to  be  liable  to  distress,  like  goods  belonging  to 
others,  in  spite  of  the  married  woman's  property  act,^^^  and  in 

164  2    Pollock    &    Maitland,    Hist.  Whart.      (Pa.)      452;     McComb's     & 

Eng.  Law,  129.  Howden's  Appeal,  43  Pa.  435;    Jiml- 

1G5  Gilbert,       Distresses,       33;       3  son  v.  Reifsneider,  97  Pa.  136;  Whit- 
Blackst.  Comm.  8;    Bradby,  Distress-  ing  &  Co.  v.  Lake,  91  Pa.  349   (dis- 
cs, 73;  Gorton  v.  Falkner,  4  Term  R.  tress  after  term), 
at    p.    568;     Jones    v.     Gundrim,    3  ler  jMitchell  v.  Franklin,  26  Ky.  (S 
Watts   &   S.    (Pa.)    531;    Spencer  v.  J.  J.  Marsh.)   477;  Jimison  t.  Reif- 
McGowen,    13    Wend.     (N.    Y.)    256.  sneider,  97  Pa.  136. 
Articles  "leased"  to  the  tenant  are  iss  jimison  v.  Reifsneider,  97  Pa. 
subject  to  distress   (Myers  v.  Esery,  136;  Pegg  v.  Starr,  23  Ont.  83. 
134  Pa.  177,  19  Atl.  488;  Price  v.  Mc-  lesLord    Blackburn,    in    Lyons    r 
Canister,  3  Grant's  Cas.   (Pa.)  248),  Elliott,  1  Q.  B.  Div.  210. 
as   are   those   "leased"   to   his   wife  i7o  See  ante,  at  note  2. 
(Kleber  v.  Ward,  88  Pa.  93).  i7i  Blnnche    v.    Bradford,    38    Pa. 

166  Howard  v.   Ramsay,   7   Har.   &  344,  80  Am.  Dec.  489. 
J.    (Md.)    113;    Quinn  v.  Wallace,  6 


2006  DISTRESS.  §  328 

one  it  has  been  decided  that  they  are  so  liable  in  spite  of  a 
constitutional  provision  exempting  the  wife's  property  from  levy 
and  sale  for  her  husband's  debts.^'^^  in  another  jurisdiction, 
however,  a  contrary  view  has  been  adopted  as  to  the  effect  of 
such  a  constitutional  provision.i'^^ 

(3)  Things  belonging  to  prior  or  subsequent  lessee.  It  has 
in  England  been  decided  that  crops  sown  by  a  tenant  at  will  are 
exempt  from  a  distress  for  rent  under  a  subsequent  lease,  made 
by  the  landlord  after  having  terminated  the  tenancy  at  will, 
since  otherwise  the  right  to  emblements  incident  to  a  tenancy 
at  will  could  at  any  time  be  destroyed  by  the  action  of  the  land- 
lord in  terminating  the  tenancy  at  will  and  leasing  to  another 
subject  to  a  rent  payable  before  the  maturity  of  the  erop.^'^^ 
And  in  Pennsylvania  it  has  been  decided  that  if  a  lease  is  sur- 
rendered and  the  lessor  then  leases  to  another,  since  one  who 
held  as  subtenant  under  the  prior  lessee  is  not  affected  by  the  sur- 
render,!'^^ his  chattels  rightfully  remaining  on  the  premises  until 
the  expiration  of  the  term  named  in  the  first  lease  are  not  sub- 
ject to  distress  for  rent  under  the  second  lease.^^^  It  does  not 
seem,  however,  that,  ordinarily,  chattels  left  on  the  premises  by 
a  prior  lessee  after  the  expiration  of  his  term  would  be  exempt 
from  distress  for  rent  due  by  a  subsequent  lessee.^''"^ 

There  are  decisions  in  the  state  above  referred  to  that  a  dis- 
tress for  rent  due  under  a  lease  which  has  come  to  an  end  cannot 
be  made  upon  goods  placed  on  the  premises  by  one  entering  under" 
a  subsequent  lease,  though  the  local  statute  expressly  author- 
izes a  distress  after  the  end  of  the  term.^'^^ 

(4)  Things  on  premises  in  way  of  trade.  Things  delivered 
to  a  person  exercising  a  trade,  to  be  carried,  wrought,  worked, 
managed,  or  kept  in  security,  in  the  way  of  his  trade-  are  ordi- 
narily exempt  from  distress,  on  the  theory,  it  seems,  that  other- 

172  Emig  V.  Cunningham,  62  Md.  itt  Bradby,  Distresses  (at  p.  79), 
458.  asserts    that    they    are    so    exempt. 

173  Wallace  t.  Johnson,  17  S.  C.  The  author  cites  merely  Pollexfen 
454.  130,    which    does    not    support    his 

174  Eaton  V.  Southby,  Willes,  131.  statement. 

175  See    ante,    §    191    b.  "s  Clifford     v.     Beems,     3     Watts 
i76Hessel  v.  Johnson,  129  Pa.  173,    (Pa.)    246;   Beltzhoover  v.  Waltman, 

18  Atl.  7R4   15  Am.  St,  Rpn.  716;  Id.,    1  Watts  &  S.   (Pa.)   416;   Whiting  & 

14^  Pa.   8,   21  Atl.  794,  11  L.  R.  A.    Co.  v.  Lake,  91  Pa.  349. 

855. 


§  328  ON  THINGS  NOT  BELONGING  TO  TENANT.  2007 

wise  the  conduct  of  the  trade  would  be  greatly  hampered,  if  not 
entirely  prevented.^ "^  In  England  it  has  been  said  that  the 
trade  must  be  " public,  "^^^  meaning  thereby,  it  seems,  that  it 
must  be  one  carried  on  for  the  purpose  of  dealing  with  any 
persons  who  may  choose  to  avail  themselves  of  it,  as  distin- 
guished from  a  case  where  a  person  is  employed  by  one  or  more 
particular  individuals  ;^^^  and  it  has  been  held  that  an  artist  to 
whom  a  picture  has  been  sent  to  be  altered  does  not  have  pos- 
session of  it  as  a  public  trader  within  the  rule.^^^  Jq  ^his 
country  the  question  whether  the  tenant  conducts  a  regular 
trade  or  business,  in  the  course  of  which  the  goods  in  question 
were  received  by  him,  appears  to  have  been  regarded  as  imma- 
terial. Thus,  goods  sent  to  the  tenant  to  be  sold  on  commission 
have  been  decided  to  be  exempt,  though  his  business  appeared 
to  be  that  of  a  regular  dealer  rather  than  of  one  selling  as  a 
factor,is3  and  it  has  been  held  that  though  the  business  of  the 
tenant  is  primarily  that  of  factor  or  commission  merchant,  goods 
delivered  to  him  for  storage  and  safekeeping  are  exempt.^  ^^ 

The  general  rule  of  exemption  has  been  applied,  or  has  been 
recognized  as  applicable,  in  the  following  cases,  so  as  to  exempt 
from  distress  goods  of  the  character  named:  Corn  sent  to  a 
miller  to  be  ground  ;is^  logs  sent  to  a  sawmill  to  be  made  into 
boards  ;i^^  a  horse  sent  to  a  farrier  to  be  shodf^s'^  raw  material 
sent  to  a  manufacturer  or  weaver  to  be   worked  up,^^^    even 

iTDWilles,    C.    J.,    in    Simpson    v.  painted  are  exempt.     Mauro  v.  Bote- 

Hartopp,     Willes,     512,     1     Smith's  lor,   2   Cranch  C.   C.   372,   Fed.  Gas. 

Leading    Cases;     Blackburn,    J.,    in  No.  9,311. 

Lyons  v.   Elliott,  1  Q.  B.   Div.   210-  iss  Howe     Sewing    Mach.     Co.     v. 

Parke,    B,    in    Joule    v.    Jackson,    7  Sloan,  87  Pa.  438,  30  Am.  Rep.  376: 

Mees.   &   W.    450;    Gibson,   C.   J.,   in  Clothier     v.     Braithwaite,     22     Pa. 

Brown  v.  Sims,  17  Serg.  &  R.   (Pa.)  ^^P^^-  ^^-  ^21;  MrCreery  v.  Clafflin. 

138;     Stewart,    J.,    in    McCreery    v.  ^7  Md.  435,  11  Am.  Rep.  542. 

Clafflin,  37  Md.  435,  11  Am.  Rep.  542.  ^'^  ^rown  y.  Sims,  17  Serg.  &  R 

ISO  Simpson    v.    Hartopp,    Willes,  (Pa.)  138;  Walker  v.  Johnson,  4  Mc- 

g^2  Cord   (S.  C.)    552. 

,1.  c  T^     1       T     ■     i»T  ^*        issCo.    Litt.    47    a;     Gilbert,    Dis- 

181  See  per  Parke,  J.,  m  Muspratt 

tresses    37 
V.  Gregory,  1  Mees.  &  W.  653.     Com-        ,,„t,\    '  m,^™  n  /->   * 

1R6  paterson  v.  Thompson,   9  Ont. 
pare  Gibson  v.  Ireson,  3  Q.  B.  39.        ^^^    ggg    ^g  jj   ^    q    ^    ^ 

182  Von  Knoop  v.  Moss,  7  Times  ist  y.  B.  22  Ed.  4,  49  b;  Co.  Litt. 
Law     R.      500.       But      it     has      in    47  a. 

this  country  been  decided  that  i^sRead  v.  Burley,  Cro.  Eliz.  596; 
chairs    left    with    a    painter    to    be   Gibson     v.     Ireson,     3     Q.     B.     39; 


2008  DISTRESS.  §  328 

though  this  is  to  be  done  at  the  weaver's  own  home;^'^^  and  the 
product  of  such  raw  material.^^^  Also  cloth  sent  to  a  tailor  to 
be  made  up  into  garments  ;i^i  beasts  sent  to  a  butcher  to  be 
slaughtered;^ ^2  goods  deposited  with  a  factor  or  commission 
agent,^^3  or  with  an  auctioneer/ ^'^  for  the  purpose  of  being  sold, 
though  not  goods  sent  to  the  tenant  to  be  sold  at  such  prices  as 
he  can  obtain,  he  to  account  to  the  owner  only  for  the  invoice 
price,  retaining  the  balance.^^^  Also  goods  placed  in  a  ware- 
house or  other  public  depositary  for  safekeeping,^ '^^^  or  pledged 
with  a  pawnbroker.^'''''  Likewise,  goods  delivered  to  a  carrier  to 
be  conveyed  by  him  to  some  place,  even  though  he  is  not  strictly 
a  common  carrier,  provided  he  carries  the  goods  of  all  persons 
indifferently,  are  privileged  from  distress  while  in  his  charge.^  ^'^ 
In  the  case  of  a  factor  or  commission  merchant  it  is  immaterial, 
it  has  been  decided,  whether  the  goods  are  deposited  by  him  in 
"his  own  warehouse  or  in  that  of  another  j^^^  and  in  the  case  of 

Knowles  v.  Pierce,  5  Houst.    (Del.)  club,    were    not    exempt    as    having 

178;   Hoskins  v.  Paul,  9  N.  J.  Law,  been  delivered  to  him   to  be  "man- 

110,   17  Am.   Dec.  455.  aged   in  the  way  of  his  trade,"  his 

189  Wood  V.  Clarke,  1  Cromp.  &  trade  being  that  of  club  proprietor 
J.  484.  and  not  that  of  a  picture  dealer. 

190  Knowles  v.  Pierce,  5  Houst.  is*  Adams  v.  Grane,  1  Cromp.  & 
(Del.)  178.  M.  380;  Williams  v.  Holmes,  8  Exch. 

191  Co.  Litt.  47  a.  861;  In  re  Bailey,  2  Fed.  850;  Hime- 

192  Brown  v.  Shevill,  2  Adol.  &  E.  ly  v.  Wyatt,  1  Bay  (S.  C.)  102,  1 
138.  Am.  Dec.  598. 

193  Oilman  v.  Elton,  3  Brod.  &  B.  i95  Hurd  v.  Davis,  23  U.  C.  Q.  B. 
75;  Matthias  v.  Mesnard,  2  Car.  &  123.  It  was  so  held  in  Dorsh  v.  Lea, 
P.  353;  Findon  v.  McLaren,  6  Q.  B.  18  Pa.  Super.  Ct.  447,  thouf^h  there 
891;  McCreery  v.  Clafflin,  37  Md.  435,  the  court  refers  to  the  fact  that  the 
11  Am.  Rep.  542;  Connah  v.  Hale,  23  person  sending  the  goods  had  re- 
Wend.  (N.  Y.)  462;  Howe  Sewing  served  no  right  to  take  them  back. 
Mach.  Co.  v.  Sloan,  87  Pa.  438,  30  i96  Thompson  v.  Machiter,  1  Bing. 
Am.  Rep.  376;  Brown  v.  Stackhouse,  283;  Miles  v.  Furber,  L.  R.  8  Q.  B. 
155  Pa.  582,  26  Atl.  669,  35  Am.  St.  77;  Beall  v.  Beck,  3  Cranch  C.  C. 
Rep.  908;  Walker  v.  Johnson,  4  Mc-  666,  Fed.  Cas.  No.  1,161;  Owen  v. 
Cord  (S.  C.)  552.  Contra,  Elford  v.  Boyle,  22  Me.  47;  Brown  v.  Sims,  17 
Clark,  2  Brev.    (S.  C.)   88.  Serg.    &    R.     (Pa.)     138;    Briggs    v. 

In   the    recent   case   of   Challoner  Large,  30  Pa.  287. 

V.  Robinson  [1908]  1  Ch.  49,  it  was  "t  Swire   v.   Leach,   18   C.   B.    (N. 

held  that   pictures  delivered    to  the  S.)  479. 

proprietor   of  a  club,   by  the  mem-  "s  Gis^ourn  v.  Hnrst,  1  Salk.  249. 

bers  thereof,  to  be  sold  by  him,  in  i9n  Matthias  v.  Mesnard,  2  Car.  & 

accordance   with    the   usage    of    the  P.  353;  Briggs  v.  Large,  30  Pa.  287. 


5  328  ON  THINGS  NOT  BELONGING  TO  TENANT.  2C09 

an  auctioneer  the  privilege  exists  whether  the  goods  are  lying 
in  a  public  auction  room  or  in  a  yard  which  forms  part  of  his 
f)remises,2oo  or  in  a  place  hired  by  him  for  the  occasion  of  the 
sale,2oi  or  even  in  a  place  of  which  he  has  taken  possession  wrong- 
fully.202  ]3ut  the  fact  that  an  auctioneer  has  the  custody  of 
goods  on  premises  not  occupied  by  him,  but  in  the  possession 
of  a  tenant,  does  not  entitle  the  owner  of  the  goods,  whether  the 
tenant  or  another,  to  assert  an  exemption.203 

In  England  it  has  been  decided  that  horses  and  carriages  sent 
to  a  livery  stable  to  be  cared  for  are  not  exempt  from  distress.^o^ 
This  seems  inconsistent  with  the  spirit  of  the  rule  above  stated, 
and  a  different  view  has  been  taken  in  this  country ,-<^^  and  would 
possibly  be  taken  in  England  at  the  present  day.2o*5  In  Eng- 
land it  has  also  been  stated  that  cattle  at  agistment,  that  is,  de- 
livered to  the  tenant  to  be  fed  and  pastured  on  his  premises,  arc 
not  exempt  from  distress. ^'^'^  This  view  can  apparently  be  sup- 
ported only  on  the  ground  that  a  contract  of  agistment  is  not 
made  in  the  exercise  of  a  public  trade.-os  In  this  country 
agisted  cattle  have  in  one  state  been  regarded  as  not  liable  to 
distress.^'''* 

It  has  been  decided  in  England  that  things  left  on  the  prem- 
ises by  a  stranger,  not  for  the  benefit  of  these  things  themselves, 
nor  in  order  that  work  may  be  done  upon  them,  but  as  incidental 
to  the  working  or  handling  of  other  things,  are  not  exempt  within 
the  rule,  and  the  privilege  has  thus  been  denied  to  a  brewer's 
casks  sent  to  a  public  house  and  left  there  until  emptied  by  the 
tenant  of  the  house  ;2io  and  to  machinery  sent  along  with  raw 

200  Williams  v.  Holmes,  8  Exch.  Dec.  698.  See  Brown  v.  Sims,  17 
861.  Serg.  &  R.    (Pa.)    138. 

201  Adams  v.  Grane,  1  Cromp.  &  200  See  Miles  v.  Ftirber,  L.  R.  8  Q. 
M.  380.  B.   77.     In   Delaware  and    Maryland 

202  Brown  v.  Arundell,  10  C.  B.  these  are  exempt  by  statute.  Dela^ 
54.  tcare  Rev.  Code  1893,  p.  869,  §   22; 

203  Lyons  v.  Elliott,  1  Q.  B.  Div.  Maryland  Code  Pub.  Gen.  Laws  1904, 
210.  art.   53,  §  17. 

201  Francis    v.    Wyatt,    3    Burrow,  207  1  Rolle's  Abr.  669,  pi.  23. 

1498,    1    Wm.    Bl.    483;    Parsons    v.  208  See  ante,  at  note  ISO. 

Gintrell,  4  C.  B.  545.  209  Cadwalader  v.   Tindall,   20   Pa. 

205Himely  v.  Wyatt,  1  Bay  (S.  C.)  422. 

102,  1  Am.  Dec.  598;  Youngblood  v.  210  Joule  v.  Jackson,  7  Mees.  &  W. 

Lowry,  2  McCord  (S.  C.)  39,  13  Am.  450. 


2010  DISTRESS.  §  328 

material  to  a  weaver  to  aid  in  working  up  such  material  ;2ii  and 
a  boat  belonging  to  a  purchaser  of  salt,  left  in  a  private  canal 
upon  salt  works  leased,  to  await  a  load  of  salt,  was  held  not  to 
be  exempt."^ 2  i^  has,  however,  been  said  that  instruments  of 
conveyance  by  which  goods,  which  are  themselves  exempt  under 
the  ^general  rule,  are  sent  to  or  brought  from  the  premises  where 
they  are  worked  up  or  deposited,  are  also  exempt.  "The  article 
must  be  conveyed,  and  it  is  privileged  from  distress;  therefore 
all  things  necessary  for  that  purpose  are  privileged  also.  Thus, 
the  horse  or  carriage  conveying  goods  is  so  privileged;  and  so 
also  the  basket  or  package  in  which  they  are  enveloped.  "^^^ 

It  has  been  decided  that  articles  are  not  privileged  from  dis- 
tress under  the  rule  unless  they  are  actually  delivered  to  the 
tenant  by  or  on  behalf  of  their  owner,  and  that  consequently  a 
vessel  constructed  by  a  shipbuilder  on  premises  leased  to  him, 
of  materials  purchased  by  him,  is  not  exempt,  although  the 
price  has  been  paid  by  the  person  for  whom  it  is  built.^i* 

Articles  which  are  allowed  to  remain  on  the  leased  land  as  a 
matter  of  favor  on  the  tenant's  part,  and  not  in  the  exercise  of 
any  trade  or  calling  by  him,  are  not  within  this  rule  of  exemp- 
tion.215 

If  the  tenant  has  an  interest  in  the  goods  thus  on  the  prem- 
ises in  the  way  of  trade,  they  are,  it  has  been  held,  liable  to 
distress  to  the  extent  of  his  interest.^i*' 

211  Wood  V.  Clarke,  1  Cromp.  &  J.  of  refitting,  though  the  timber  was 
484.  purchased  for  the  purpose  from  the 

212  Muspratt  v.  Gregory,  1  Mees.  &  ship-builder  by  the  owner  of  the 
W.  633,  3  Mees.  &  W.  677.  vessel,   while  the   timber  was  lying 

213  Muspratt  v.  Gregory,  1  Mees.  &  in  the  yard.  Gildersleeve  v.  Ault, 
W.   633,  per  Alderson,  J.     See  Read  16  U.  C.  Q.  B.  401. 

V.  Burley,  Cro.  Eliz.  549,  546;     Beall  215  Mitchell  v.  Coffee,  5  Ont.  App. 

V.    Beck,    3    Cranch   C.    C.    666,   Fed.  525;  Page  v.  Middleton,  118  Pa.  546, 

Cas.  No.'  1,161.  12  Atl.  415. 

214  Clarke  v.  Millwall  Dock  Co.,  216  McElderry  v.  Flannagan's 
17  Q.  B.  Div.  494.  It  had  previously  Adm'r,  1  Har.  &  G.  (Md.)  308;  Pat- 
been  decided  in  Canada  that,  where  erson  v.  Thompson,  9  Ont.  App.  326 
a  vessel  had  been  left  by  its  owner  (semble).  In  the  former  case  it 
in  a  ship  yard  to  be  refitted,  not  was  held  that  the  tenant  had  such 
only  the  vessel  was  exempt,  but  also  an  interest  by  reason  of  his  right  to 
timber  to  be  used   for  the  purpose  compensation  for  his  work. 


§  328  ON  THINGS  NOT  BELONGING  TO  TENANT.  2011 

Cattle  m,2i'^  or  on  their  way  tOj^^s  market,  are  exempt  from 
distress  for  rent  due  from  the  owner  of  the  market,  or  from  the 
owner  of  premises  upon  which  they  are  pastured  for  a  night  while 
on  their  way  to  market.  This  exemption  is,  like  that  above  re- 
ferred to,  apparently  based  on  the  theory  that  such  exemption 
conduces  to  the  benefit  of  trade. 

(5)  Things  belonging  to  guest  or  lodger.  It  seems  that,  even 
at  common  law,  articles  belonging  to  a  guest  at  an  inn  are  ex- 
empt from  distress  for  nonpayment  of  rent  by  the  innkeeper,^!^ 
and  this  view  has  been  adopted  in  several  cases  in  this  country.220 
This  view  has  in  one  jurisdicton  been  extended  to  the  case  of  a 
permanent  boarder  at  an  inn  or  boarding  house,^^!  -while  in  an- 
other such  extension  was  denied.222 

Ai  tides  which,  though  belonging  to  a  guest  at  an  inn,  are  not 
in  use  by  him,  but  are  loaned  by  him  to  the  innkeeper  for  use  by 
his  other  guests,  have  been  held  not  to  be  within  the  principle  of 
the  exemption,223  and  articles  left  there  by  a  guest  after  his  de- 

217  Co.  Lltt.  47  a.  220  Beall  v.  Beck,  3  Cranch  C.  C. 

218  Tate  V.  Gleed,  2  Wms.  ^aund.  666,  Fed.  Gas.  No.  1,161;  Kellogg 
290  a,  note  q;  Nugent  v.  Kirwan,  1  Newspaper  Co.  v.  Peterson,  162  111. 
Jebb  &  S.  97;  Muspratt  v.  Gregory,  158,  44  N.  E.  411,  53  Am.  St.  Rep. 
1  Mees.  &  W.  633,  per  Alderson,  B.  300;  Riddle  v.  Welden,  5  Whart. 
In  Delaware  the  statute  (Rev.  Code  (Pa.)  9;  Karns  v.  McKlnney,  74  Pa. 
1893,  p.  869,  §  22)  exempts  "beasts  389;  Elford  v.  Clark,  2  Brev.  (S.  C.) 
of  a  drover   depastured  while  pass-  88. 

ing  through  the  county."  221  Riddle    v.    Welden,    5    Whart. 

219  It  is  frequently  said  that  a  (Pa.)  9.  See  Beall  v.  Beck,  3 
horse  at  an  inn  cannot  be  distrained.  Cranch.  C.  C.  666,  Fed.  Gas.  No. 
Bro.  Abr.,  pi.  43,  57,  99;  Co.  Litt.  1,161.  Delaware  Rev.  Code  1893,  p. 
47  a;  3  Blackst.  Comm.  8,  and  note.  869,  §  22,  exempts  the  "property  of 
That  the  goods  of  a  guest  at  an  boarders  in  a  boarding  house." 
inn  are  exempt  is  assumed  in  the  222Trieber  v.  Knabe,  12  Md.  491, 
argument    in    Francis    v.    Wyatt,    3  71  Am.  Dec.  607. 

Burrow,  1498,  1  Wm.  Bl.  483;    Rob-  223  Jones    v.    Goldbeck,    14    Phila. 

inson  v.  Walter,  3  Bulst.  269,  and  in  (Pa.)    173,  and   it  was  so  adjudged 

the  opinions  in  Gorton   v.   Palkner,  as  to  a  statutory  exemption  of  the 

4  Term  R.  567;    Crosier  v.  Tomkin-  goods  of  a  boarder  or  sojourner  at  a 

son,  2  Keny.  439;    Fowkes  v.  Joyce,  2  hotel  or  boarding  house.     Leitch  v. 

Vern.  129;  Lyons  v.  Elliott,  1  Q.  B.  Owings,  34  Md.   262.     Contra,  Stone 

Div.    210.     It    is    so    stated    in    Bac.  v.  Matthews,  7  Hill   (N.  Y.)   428,  re- 

Abr..    Inns    and     Innkeepers     (B) ;  versing  1  Hill  (N.  Y.)  565. 
Bradby,  Distresses,  144. 


2012  DISTRESS.  §  328 


parture,  for  safekeeping,  the  innkeeper  making  no  charge  for 
giving  them  shelter,  have  been  held  not  to  be  exempt.224 

The  privilege  as  to  chattels  belonging  to  a  guest  at  an  inn  has 
been  held  not  to  extend  to  a  horse  placed  in  a  stable  at  a  dis- 
tance from  the  inn,  the  use  of  which  was  loaned  to  the  inn- 
keeper,225 

(6)  Straying  cattle.  It  is  the  rule  in  England  that  while,  if 
a  stranger's  cattle  escape  into  the  tenant's  land  by  breaking 
fences  which  are  not  defective,  or  which  the  owner  or  occupant 
is  under  no  obligation  to  repair,  the  cattle  may  be  distrained  for 
rent  even  before  they  are  levant  et  coucliant,—^  if  they  escape 
into  the  tenant's  land  through  defects  in  fences  which  the  owner 
or  occupant  of  such  land  is  bound  to  repair,  they  cannot  be  dis- 
trained for  rent  by  the  landlord,  even  though  levant  et  coucliant, 
unless  their  owner  refuses  or  neglects  to  drive  them  away  after 
rceiving  notice  of  their  presence  on  the  land,  since  it  is  the  duty 
of  the  owner  of  the  land  in  such  case  either  to  repair  the  fences 
or  obtain  from  his  tenant  a  covenant  to  repair  them,  and  he 
should  not  be  enabled  to  distrain  on  the  stranger's  cattle  by 
reason  of  his  neglect  of  this  duty.^^^ 

(7)  Circumstances  creating  estoppel  on  landlord.  The  landlord 
cannot  distrain  upon  a  stranger's  goods  as  being  on  the  premises, 
when  they  were  brought  there  by  the  landlord  himself  without 
the  owner's  authority,228  nor  when  the  landlord  prevented  their 
removal  before  distraining.229  Otherwise  the  landlord  would 
profit  by  his  unlawful  act.  It  has  also  been  held  that  the  land 
lord  was  estopped  to  distrain  on  goods  deposited  with  the  ten- 
ant, when  the  latter  was  allowed  by  the  landlord  to  carry  on 
the  business  of  the  depositary  in  the  latter 's  name. 2^0  It  has  even 
been  suggested  that  the  fact  that  the  premises  were  leased  for 
a  boarding  house  is  ground  for  excluding  any  right  in  the  les- 
sor to  distrain  goods  brought  on  the  premises  by  a  boarder.23i 

224  Mitchell  V.  Coffee,  5  Out.  App.    tresses,  39;  Co.  Litt.  47  b,  Hargrave's 
525.  note. 

225  Crosier  v.  Tomkinson,  2  Keny.       228  Paton  v.  Carter,  Cab.  &  El.  183. 

439.  22oSeigling    v.     Main,     1    McMul. 

220Kempe  v.  Crews.  1  Ld.  Raym.    ^^^  ^^  ^^  ^52. 

Ifi7;   Jones  v.  Powell,  5  Barn.  &  C.  t     t,    o  r.    h 

230  Miles  V.  Furber,  L.  R.  8  Q.  B- 
647. 

227  2  Wms.  Saimd.  290,  note  (7)  to    "77. 
Poole  V    Lons^iieville;     Gilbert.   Dis-        2:^1  Pcr  Crnn'^b   C.   J.,   in   Beall  v. 


§  328  ON  THINGS  NOT  BELONGING  TO  TENANT.  20i3 

(8)  Reimbursement  of  owner  by  tenant.  A  stranger  whose 
goods  are  distrained  for  rent  due  by  another  may  redeem  them,-22 
or  buy  them  in  at  the  sale,-33  and  recover  the  amount  paid  from 
the  tenant;  or  he  may  in  some  eases  bring  an  action  for  damages 
against  the  tenant  for  allowing  them  to  be  taken.^s*  There  is 
one  decision  to  the  effect  that  the  owner  cannot  demand  to  be 
reimbursed  if  he  left  the  goods  on  the  premises  for  his  own 
convenience  and  not  for  the  convenience  of  the  tenant,"^^  but 
this  decision  has  been  strongly  disapproved.-^^ 

(9)  Statutory  changes  of  rule.  In  several  states  the  common- 
law  rule  by  which  the  goods  of  a  stranger  are  subject  to  dis- 
tress has  been  changed  by  a  statute  providing  that  only  the 
tenant's  goods  shall  be  so  subjcct.^sT  and  such  is  presumably 
the  effect  of  various  statutes  which  in  terms  provide  that  the  dis- 
tress may  be  levied  on  the  tenant's  property,238  this  by  impli- 
cation exempting  the  property  of  others.-^^  In  three  of  these 
states,  in  which  the  goods  of  the  tenant  only  are  ordinarily  liable, 
it  is  provided  that  ihoso  of  a  subtenant  or  assignee,  found  on 
the  premises,  may  also  be  subjected  to  distress.^^"  But  in  the 
absence  of  such  a  provision,  a  statute  exempting  the  goods  of 
persons  other  that  the  tenant  exempts  those  of  a  subtenant,-^ ^ 
except  in  states  where,  by  reason  of  the  prohibition  of  sub- 
leases, the  head  landlord  has  the  right  to  treat  the  subtenant  as 

Beck,  3  Cranch  C.  C.  666,  Fed.  Cas.  ^ss  Georgia    Code    1895,    §     4818; 

No.  1,161.  Kentucky    St.    1903,    §    2307;    Texas 

=32Exall  V.  Partridge,  8  Term  R.  Rev.    St.    1895,    art.    3240;    Virginia 

308.     See  Pegg  v.  Starr,  23  Ont.  83.  Code    1904,    §    2791;    West    Virginia 

233  Wells  y.  Porter,  7  Wend.  (N.  Code  1906,  §  3404.  In  Florida  there 
Y.)    119.  is  an  implication  to  the  effect  that 

234  See  3  Blackst.  Comm.  8;  Cros-  property  of  the  person  liable  for  rent 
ier  V.  Tomkinpon,  2  Keny.  439;  is  alone  distrainable,  from  the  fact 
Barnes,  472;  O'Donnel  v.  Seybert,  13  that  the  statute  (Gen.  St.  1906,  § 
Serg.  &  R.  fPa.)  .54.  2246)    provides    for    proceedings    to 

235  England  V.  Marsden,  L.  R.  I.  C.  try  the  claims  of  third  persons  to 
P.  529.  the  property  distrained. 

23G  Edmunds  v.  Wallingford,  14  Q.       239  See  Scruggs  v.  Gibson,  40  Ga. 

B.  Div.  811.  511. 

237  Illinois,  Kurd's  Rev.  St.  1905,  c.        2*0  Kentucky  St.  1903,  §  2307;  Vir- 

80,   §  16;     Mississippi  Code  1906,   §  ginia  Code  1904,  §   2791;   West    Vir- 

2867;  New  Jersey   1  Gen.  St.  p.  1208.  ginia  Code  1906,  §  3404. 
§  8:   S^outh  Carolina  Civ.  Code  1902,       241  Gray    v.   Rawson,   11    111.    527; 

§  2429.  Gibson   v.   Mullican,   58   Tex.   430. 


2014  DISTRESS.  §  328 

his  own  tenant.242  An  assignee,  as  distinguislied  from  a  sub- 
tenant,-^^ is  obviously  a  "tenant"  whose  goods  are  subject  to 
distress.244-246 

Under  a  statute  exempting  the  property  of  strangers  from  lia- 
bility to  distress,  property  bona  fide  sold  by  the  tenant  for  a  val- 
uable consideration  is  exempt,  even  though  it  remains  on  the 
premises,247  and  even  though  the  purchaser  knew  that  the 
landlord  was  about  to  distrain.--*^ 

A  statute  of  this  character  does  not  affect  the  landlord's  right 
to  distrain  on  goods  in  which  another  has  a  joint  interest  with 
the  tenant,  though  the  tenant's  interest  only  can  be  sold.-^^ 

Though  the  tenant  mortgages  his  chattels,  he  has  still  such  an 
interest  therein  as  may  be  subjected  to  distress.^^o  The  mort- 
gagee's interest  cannot,  however,  be  affected  by  the  distress,  pro- 
vided the  mortgage  was  in  good  faith  and  for  value,25i  and  pro- 
vided, presumably,  in  some  states,  it  was  properly  registered  be- 
fore the  distress. 252  There  are  suggestions  to  the  effect  that 
the  fact  that  the  condition  of  the  mortgage  is  not  broken  before 
distress  might  possibly  give  the  latter  priority,253  but,  it  is  sub- 
mitted, there  is  no  proper  ground  for  a  distinction  in  this  re- 
gard.25't  The  mortgagee  may,  however,  by  representing  to  the 
landlord  that  he  will  not  assert  any  claim  as  against  the  latter, 

242  See  Barlow  v.  Jones,  117  Ga.  Law,  417;  Holladay  v.  Bartholomae, 
412,    43    S.    E.    690.  11  111.  App.   (11  Bradw.)  206. 

243  See  ante,   §  151.  251  Woodside   v.   Adams,    40   N.    J. 
244-246  See  Sexton  v.  Chicago  Stor-    Law,  417;   Mackin  v.  Blythe,  35  111. 

age  Co.,   129  111.  318,  21  N.   E.  920,  App.  216;    Stamps  v.  Gilman  &  Co., 

10  Am.  St.  Rep.  274.  43   Miss.    456;    Ex   parte  Knobeloch, 

247  Kellogg  Newspaper  Co.  v.  Pet-  26  S.  C.  331,  2  S.  E.  612. 

erson,  162   111.  158,  44  N.  E.  411,  53  252  See    Stamps   v.    Gilman   &    Co., 

Am.    St.    Rep.    301;    Howdyshell    v.  43  Miss.  456. 

Gary,    21    111.   App.    288;    Snyder    v.  253  stamps    v.    Gilman    &    Co.,    43 

Hitt,  32  Ky.   (2  Dana)  204.  Miss.   456;    Ex   parte  Knobeloch,    26 

248Hadden    v.    Knickerbocker,    70  S.  C.  351,  2  S.  E.  612. 

111.  677,  22  Am.  Rep.  80.  254  See   Bischoff    v.    Trenholm,    36 

249  Allen  V.  Agnew,  24  N.  J.  Law,  S.  C.  75,  15  S.  E.  346,  commenting 
443;  Newell  v.  Clark,  46  N.  J.  Law.  on  Ex  parte  Knobeloch,  26  S.  C.  331, 
373;  Prewett  v.  Dobbs,  21  Miss.  (13  2  S.  E.  612,  supra.  In  this  state  the 
Smedes  &  M.)  431  (under  statute  statute  provides  that  the  distress 
subjecting  any  limited  property  or  takes  priority  over  a  mortgage 
Interest).  made  after  the  lease.     See  Civ.  Code 

250  Woodside   v.    Adams,   40   N.    J.  1902,  §  2429. 


§  328  ON  THINGS  NOT  BELONGING  TO  TENANT.  2015 

thus  inducing  him  to  make  the  lease,  be  precluded  from  there- 
after asserting  any  rights  as  against  the  distress.^^s 

Any  other  person  having  a  lien  on  the  goods  would  presumably 
be  in  the  same  position  as  a  mortgagee,  and  would,  in  jurisdic- 
tions where  only  the  goods  of  the  tenant  are  subject,  be  entitled 
to  claim  priority  over  the  distress  if  his  lien  represents  a  bona 
fide  indebtedness.  In  Kentucky  the  statute  provides  that  a  per- 
son acquiring  a  lien  on  property  on  the  leased  premises  may  re- 
move such  property  on  paying  the  rent  in  arrear  and  securing 
that  still  to  become  one,  the  total  of  what  is  so  paid  and  secured 
not  being  more  than  a  year's  rent.^^^  The  Virginia  and  West 
Virginia  statutes  make  the  goods  of  the  tenant  or  under  tenant 
found  on  the  premises  liable  to  distress,  with  a  provision  that, 
if  they  are  subject  to  a  lien  when  placed  on  the  premises,  his  in- 
terest only  shall  be  liable  to  distress,  while  if  the  lien  be  created 
while  they  are  on  the  premises,  they  shall  be  liable  for  not  more 
than  one  year's  rent.  They  also  provide  that  one  who  has  ac- 
quired a  lien  on  the  goods  after  the  commencement  of  the  ten- 
ancy may  remove  them,  provided  he  pays  the  rent  in  arrear  and 
secures  so  much  as  is  to  become  due,  the  whole  amount  paid  or 
secured  not  to  exceed  one  year's  rent.^^'''  It  has  been  held  under 
such  a  statute  that  a  holding  over  by  a  tenant  after  the  expira- 
tion of  his  term,  though  without  any  express  agreement,  was 
under  a  new  tenancy,  so  that  one  having  a  mortgage  on  the 
chattels  made  during  the  original  term  was  entitled  to  remove 
the  chattels  without  paying  or  securing  rent  due  upon  the  hold- 
ing over,  the  lien  not  being  created  ''after  the  commencement 
of  the  tenancy; "2^^  and  the  same  view  was  taken  as  to  rent  ac- 
cruing under  a  renewal  lease,  when  the  lien  was  created  during 
the  previous  lease. ^^^  But  a  lien  which  was  created  after  the 
commencement  of  the  tenancy  cannot  be  asserted  as  against  the 
landlord's  right  to  a  year's  rent,  although  this  accrued  after  the 
creation  of  the  lien.^^o 

It  has  ordinarily  been  held  that  a  statute  exempting  from  dis- 
tress property  of  persons  other  than  the  tenant  does  not  exempt 

255  Crine  v.  Davis,  68  Ga.  138.  258  Richmond     v.     Duesberry,     27 

256  Kentucky   St.    1903,   §    2314.  Grat.    (Va.)    210. 

257  Virginia    Code    1904,    §    3404;  259  Upper  Appomattox  Co.  v.  Ham- 
West    Virginia   Code   1906,    §§    2791,  ilton,  83  Va.  319.  2  S.  E.  195. 
2792.  260  Wades  v.  Figgatt,  75  Va.  575. 


2016  DISTRESS.  §  328 

property  assigned  by  the  tenant  to  another  for  the  benefit  of 
ereditors,  the  assignee  not  being  a  purchaser  for  value,  and  so 
taking  subject  to  all  equities."^i  A  different  view  has,  however, 
been  adopted  in  one  state,  where  the  statute  exempts  from  dis- 
tress all  property  not  belonging  to  the  tenant  "in  his  own 
right.  "262 

Chattels  of  the  tenant  passing  to  his  personal  representative 
have  been  held  not  thereby  to  become  the  property  of  a  person 
other  than  the  tenant,  so  as  to  be  exempt.^^s 

If,  by  what  is  known  as  a  "conditional  sale,"  goods  are  sold 
to  the  tenant,  but  the  title  is  retained  by  the  vendor,  the  rights 
of  the  latter  take  precedence  of  a  distress,^^-*  unless  he  fails  to 
comply  with  the  local  requirements  as  to  the  record  of  such  a 
transaction.265 

In  one  state,  the  statute  providing  that  the  property  of  the  ten- 
ant only  shall  be  distrained  has  been  construed  as  not  applying 
to  grain  on  the  premises,  in  view  of  another  provision  author- 
izing the  landlord  to  distrain  on  all  such  grain.^^e 

Besides  the  statutes  of  the  class  above  referred  to,  entirely 
exempting  the  property  of  persons  other  than  the  tenant  from 
liability  to  distress,  there  are  in  some  states  statutes  exempting 
particular  classes  of  things  temporarily  in  possession  of  the 
tenant  but  belonging  to  others.^^T 

261  Paine  v.  Aberdeen  Hotel  Co.,  266  Guest  v.  Opdyke,  31  N.  J.  Liaw, 
60  Miss.  360;  Paine  v.  Sykes,  72  Miss.  552;  Bird  v.  Anderson,  41  N.  J.  Law, 
351,  16  So.  903;   Hoskins  v.  Paul,  9    392. 

N.   J.  Law    (4   Halst.)    110,  il   Am.  ^ei  Delaware   Rev.    Code    1893,    p. 

Dec.    455;    Harvie    v.    Wickham,    6  869,   §  22    (horses  and  carriages   in 

Leigh   (Va.)   236.  livery  stable;    property  of  boarders; 

262  BischofE  V.  Trenholm,  36  S.  C.  beasts     depastured     while     passing 
75,  15  S.  E.  346.  through  county;  stoves  hired  by  ten- 
ses Brown  v.  Howell,  66   N.  J.  Law,  ant;    and    beasts   escaping   into   the 

25,  48  Atl.  1020.  premises    through    defective    fences 

264  Bean  v.  Edge,  84  N.  Y.  510;  which  the  tenant  or  his  landlord 
Reischmann  v.  Masker,  69  N.  J.  was  bound  to  repair) ;  Maryland 
Law,  353,  55  Atl.  301.  Code  Pub.  Gen.  Laws  1904,  art.  53, 

265  Huffard  v.  Akers,  52  W.  Va.  21,  §  17,  as  amended  by  Laws  1908,  c.  93 
43  S.  B.  124,  59  L.  R.  A.  556.  See  (spinning  wheel,  loom,  sewing  ma- 
Simpson  V.  McDonald,  79  S.  C.  277,  chine,  typewriter,  stove,  piano  or 
CO  S.  E.  674,  15  L.  R.  A.  (N.  S.)  425.  other  musical  instrument  rented, 
Compare  Reischmann  v.  Masker,  69  hired,  or  loaned  to  a  tenant;  horses 
N.  J.  Law,  353,  55  Atl.  301.  and  carriages,  or  motor  vehicles  and 


§  328  ON  FIXTURES.  2017 

b.  Fixtures.  Articles  annexed  to  the  land  by  the  tenant  so 
as  to  become  part  thereof  are  not  liable  to  distresSj^^s  and  the 
question  whether  an  article  is  so  annexed  is,  it  seems,  as  in  other 
cases,-69  to  be  determined  with  reference  to  the  mode  and  pur- 
pose of  the  annexation.270  Articles  which,  by  reason  of  their 
annexation  to  the  land,  have  been  regarded  as  exempt  from  dis- 
tress, are  windows,  doors,  chimney  pieces,  and  furnaces,27i  floor- 
ing,272  mill  stones  and  anvils,273  ranges,  stoves,  coppers,  and 
grates,274  houses,275  a  railway,  the  rails  of  which  were  nailed  to 
sleepers  imbedded  in  packed  ballast, ^^^  hop  poles  deeply  imbed- 
ded in  the  ground,2  77  and  trees  growing  in  a  nursery ,^^8  while 
a  spinning  machine  fastened  to  the  floor  of  a  mill  has  been  held 
not  to  be  so  annexed  as  to  be  exempt  from  distress.^^s 

The  fact  that  the  tenant  has  a  right  to  remove  a  fixture  an- 
nexed by  him  does  not,  by  the  weight  of  authority,  as  elsewhere 
stated,28o  render  the  article  personalty  before  removal,  and  con- 
sequently does  not  render  it  subject  to  distress.^si 

their   equipment,    not   the   property  272  Howell  v.  Listowell  Rink  and 

of    the  tenant,  in  livery  stable,  barn  Park  Co.,  13  Ont.  476. 

or    garage;  and  property  of  boarder  273  wistow's   Case,  Y.   B.  14  Hen. 

or    sojourner   in  hotel   or   boarding  8,  25  b. 

house,    or    vehicle    left    for    repair;  274  Darby  v.  Harris,  1  Q.  B.  895. 

and  also  the  goods  and  chattels  of  275  Kassing  v.  Keohane,  4  111.  App. 

the   innocent   tenant   who    has    paid  (4  Bradw.)  460;  Vausse  v.  Russel,  2 

his  rent  to  the  owner  of  the  lease-  McCord  (S.  C.)  329. 

hold  estate  to  be  exempt  from  dis-  270  Turner  v.  Cameron,  L  R.  5  Q. 

traint  for   ground   rent   if  any   due  B.  306. 

and  owing  to  the  ground  rent  land-  277  Alway  v.  Anderson,  5  U.  C.  Q. 

lord  by  the  owner  of  the  leasehold  B.  34. 

estate) ;    Pennsylvania  Act  May  13,  278  Clark    v.    Gaskarth,    8    Taunt. 

1876  (hired  melodeons  and  pianos);  431;  Clark  v.  Calvert,  3  Moore,  96. 

Act    June    25,    1895     (hired    sewing  279  Hellawell  v.  Eastwood,  6  Exch. 

machines      and      typewriting      ma-  295;    Furbush   v.   Chappell,    105   Pa. 

chines) ;    Act  April   28,  1899    (hired  187.     The    first    of    these    decisions 

Boda  water  apparatus).  has,  however,  been  questioned  in  so 

268  Co.    Liitt.    47    b;    Gilbert,    Dis-  far  as  it  regards  a  machine  of  this 

tresses,  42.  character  as  not  part  of  the   land. 

'69  See  ante,  §§  236-238.  Mather  v.  Eraser,   2  Kay  &  J.  536; 

-«To  Hellawell  v.  Eastwood,  6  Exch.  25  L.  J.  Ch.  361;   Holland  v.  Hodg- 

295;   Turner  v.  Cameron,  L..  R.  5  Q.  son,  L.  R.  7  C.  P.  328. 

B.  306.  280  See  ante,   §  241. 

2T1  Co.  Litt.  47  b;  2  Blackst.  Comm.  zsi  Darby  v.  Harris,  1   Q.  B.   895; 

79.  Turner  v.  Cameron,  L.  R.   5   Q.   B. 

L,.  and  Ten.  127. 


2018  DISTRESS.  §  323 

If  the  article  is  permanently  severed  from  tlie  land,  though 
left  lying  thereon,  it  becomes  subject  to  distress  as  personal  prop- 
erty ,2*2  while  it  does  not  become  so  subject  if  the  severance  is 
merely  temporary .283 

It  has  been  stated  that  a  fixture  may  be  made  liable  to  dis- 
tress by  express  stipulation  in  the  lease.284 

c.  Things  not  restorable  in  same  plight  as  when  taken. 
Things  which  cannot  be  restored  to  the  owner  in  the  same  plight 
as  when  they  were  taken  cannot  be  distrained.285  ^or  instance, 
perishable  articles,  such  as  milk  and  fruit,^^^  and  fresh  meat,^^'^ 
are  exempt.  On  the  same  ground,  and  for  the  further  reason 
that  they  are  not  susceptible  of  identification  for  the  purpose 
of  replevin,  it  is  said  that  loose  pieces  of  money  cannot  be  dis- 
trained, though  money  in  a  sealed  bag  can. 288 

d.  Grain  and  growing  crops.  At  common  law,  on  the  ground 
that  it  could  not  be  returned  in  the  same  condition,  and  also 
because  not  susceptible  of  identification,  growing  grain  and  grain 
in  sheaves  was  exempt  from  distress.289  This  has  been  changed 
by  statute  in  England,29o  and  in  several  states  there  is  an  ex- 
press provision  making  such  property  subject.291  Presumably 
under  a  statute  in  general  terms  making  the  tenant's  property 
subject  to  distress,292  his  grain  and  other  produce  is  so  subject. 
In  some  states,  however,  the  right  to  levy  on  growing  crops  under 

306.     The  cases  of  Spencer  v.  Darl-  287  Morley    v.    Pincombe,    2    Exch. 

ington,  74  Pa.  286;  Furbush  v.  Chap-  101. 

pell,  105   Pa.   187,  are  contra.     This  assy.  B.  22  Ed.  4,  50  b;    1  Rolle's 

would  seem  to  be  in  accordance  with  Abr.  667;  Bac.  Abr.,  Distress  (B). 

other  Pennsylvania  cases  which  re-  2S9  Co.  Lltt.  47  a;   Bro.  Abr.,  Dis- 

gard    a    removable    fixture    as    per-  tress,  pi.  29;  Rolle,  Abr.,  666;  Wilson 

sonal    property.       See    ante,    §    241,  ^-   bucket,   2   Mod.    61;    Simpson   v. 

jjQ^g  g2  Hartopp,     Willes,      512;      Given     v. 

_,         , ,         ov   1        c  n^  ,    i-T^T     Blann,  .*?  Blackf.    (Ind.)    64. 

282  Reynolds  v.  Shuler,  5  Cow.   (N.  ^         ^ 

290  2  Wm.  &  M.  sess.  1,  c.  5,  §     3, 

„  .   rr,  -o     11  Geo.  2,  c.  19,  §  8. 

283  Gorton  v.  Falkner,  4  Term  R-        „„,  r>  ,  „         ^    ,      .,„„„ 

291  Delaware  Rev.  Code  1893,  p. 
567;  Reynolds  v.  Shuler,  5  Cow.  (N.  g^^^  ^  22;  llHnois,  Kurd's  Rev  St. 
Y.)  323;  Wistow's  Case,  Y.  B.  14  ^g^g^  ^  g^^  g  3^.  ^^^  j^^^^y^  ^ 
Hen.   8.   25  b.                                              Gen.   St.  p.   1208,   §§  7,  8;    Pennsyl- 

284  Scbenley's  Appeal,  70  Pa.  98.        vania.   Pepper  &  Lewis'   Dig.  Laws, 
2S5  Co.   Lift.  47  a.  "Landl.  &  Ten."  §  4. 

286  2  Blackst.  Comm.  82.  292  See  ante,  note  238. 


§328 


ON  THINGS  IN  CUSTODIA  LEGIS. 


2019 


a  distress  may  be  restricted  by  express  statutory  provisions  ap- 
plicable as  well  to  levies  under  execution  or  attachment. ^o^ 

e.  Things  in  actual  use.  Things  in  actual  use  are  privileged 
from  distress  on  the  ground  that  an  attempt  to  distrain  them 
might  lead  to  a  breach  of  the  peace.  Thus,  a  horse  which  is 
being  ridden,294  or  driven  f^^  tools  with  which  a  man  is  work- 
ing ;296  yarn  being  carried  by  a  man  to  be  weighed,^^'^  would  all 
be  exempt  under  this  rule.  The  use  must,  it  has  been  held,  be 
such  as  to  make  it  appear  probable  that  a  distress  would  lead  to 
a  breach  of  the  peace.^^s 

f.  Tilings  in  custodia  legis.  Things  in  the  custody  of  the  law 
are  not  subject  to  distress.-^^  By  force  of  this  rule  goods  which 
have  been  levied  upon  under  an  execution^'^''  or  an  attachment^^^ 
are  not  subject  to  distress,  though  the  landlord  ordinarily,  as 
elsewhere  stated,  has  a  right  to  demand  that  the  sheriff  j)ay  to 
him  a  year's  rent  before  the  removal  of  goods  under  an  execu- 
tion.302 

In  one  state  it  has  been  decided  that  since,  by  the  local  law, 
a  levy  under  execution  can  be  made  without  disturbing  the  de- 


2»3  See  e.  g.,  Virginia  Code  1904,  § 
904;  West  Yirginia  Code  1906,  § 
1314;  Scott  V.  Russell,  72  Ga.  35. 

294  Co.  Litt.  47  a;  Storey  v.  Rob- 
inson, 6  Term  R.  138. 

29«  Simpson  v.  Hartopp,  Willes, 
512;  Field  v.  Adams,  12  Adol.  &  E. 
649;  Co.  Litt.  47  a,  Hargrave's  note. 

296  Co.  Litt.  47  a;  Simpson  v.  Har- 
topp, Willes,  512. 

297  Read  V.  Burley,  Cro.  Eliz.  549. 

298  Bunch  V.  Kennington,  1  Q.  B. 
679;  Couch  v.  Crawford,  10  U.  C.  C. 
P.  491;  Beall  v.  Beck,  3  Cranch  C.  C. 
666,  Fed.  Cn^.  No.  1,161. 

299  Co.  Litt.  47  b;  Gilbert,  Distress- 
es, 44;  Eaton  v.  Southby,  Willes,  131; 
Bowser  v.  Scott,  8  Blackf.  (Ind.)  86; 
]\Tulherin  v.  Porter,  1  Ga.  App.  153, 
58  S.  E.  60;  Karns  v.  McKinney,  78 
Pa.  387:  Seigling  v.  Main,  1  McMul. 
(S.  C.)  252;  Cooley  v.  Perry.  ?.i  S. 
C.  554.  13  S.  E.  853;  Meyer  v.  Oliver, 
61  Tex.  584. 


300  Peacock  v.  Purvis,  2  Brod.  &  B. 
362;  Wharton  v.  Naylor,  12  Q.  B. 
673;  Wright  v.  Dewes,  1  Adol.  &  B. 
641;  Herron  v.  Gill,  112  Til.  247; 
Bowser  v.  Scott,  8  Blackf.  (Ind.) 
86;  Craddock  v.  Riddlesbarger,  32 
Ky.  (2  Dana)  205;  Van  Horn  v.  Go- 
ken,  41  N.  J.  Law,  499;  Alexander 
V.  Mahon,  11  Johns.  (N.  Y.)  185'; 
Pierce  v.  Scott,  4  Watts  &  S.  (Pa.) 
344;  Skiles  v.  Sides,  1  Pa.  Super.  Ct. 
15:  Hamilton  v.  Reedy,  3  McCord 
(S.  C.)  38;  Sullivan  v.  Ellison,  20  S. 
C.  481. 

301  Thomson  v.  Baltimore  &  Sus- 
quehanna Steam  Co.,  33  Md.  312; 
White  V.  Hoeninghaus,  74  Md.  127, 
21  Atl.  700;  Pierce  v.  Scott,  4  Watta 
&  S.  (Pa.)  344;  Ayres  v.  Depras,  2 
Speers  Law  (S.  C.)  367;  Meyer  v. 
Oliver.    61    Tex.    584. 

302  See    ante,  §  183. 


2020  DISTRESS.  §  328 

fendant's  possession  of  the  goods,  the  adoption  of  the  common- 
law  rule  that  goods  levied  on  are  exempt  from  distress  M^ould 
enable  a  tenant,  by  means  of  a  judgment,  execution,  and  levy, 
to  secure  to  himself  immunity  from  distress  while  still  enjoying 
the  possession  of  the  goods,  and  that,  consequently,  goods  levied 
on  under  execution  may  be  distrained,  the  distress  being  subject 
to  such  rights  as  the  execution  creditor  obtained  by  his  levy,  un- 
less the  officer  refused  to  proceed  to  sell  under  the  execution, 
which  refusal  would  be  regarded  as  a  withdrawal  from  posses- 
sion.303  In  another  state  the  statute  expressly  provides  that 
goods  levied  on  under  execution  or  attachment  may  be  dis- 
trained, the  distress  not  to  affect  the  levy  or  vary  the  rights  of 
the  parties  as  to  the  application  of  the  proceeds  of  sale.^*^'* 

A  void  levy  under  attachment  or  execution  does  not  affect 
the  right  of  the  landlord  to  distrain  upon  the  goods  levied 
upon.3°5 

There  are  decisions  to  the  effect  that  the  mere  issue  of  an 
execution  against  the  tenant's  goods,  without  any  levy  there- 
under, deprives  the  landlord  of  the  right  to  distrain  thereon.^oe 
It  does  not  seem,  however,  even  though  the  issue  of  execution 
does  create  a  lien  on  the  goods,^*''''  that  this  should  be  regarded 
as  placing  them  in  the  custody  of  the  law,  so  as  to  be  exempt 
from  distress.^^^  There  is  in  one  state  a  decision  that  a  "dor- 
mant" execution  against  the  tenant,  that  is,  an  execution  not  re- 
newed within  the  legal  period,  could  not  affect  the  right  of  dis- 
tress, or  justify  a  subsequent  levy  on  the  property  distrained.^^'' 

In  England,  to  protect  the  goods  levied  on  under  execution 
from  a  subsequent  distress,  it  is  ordinarily  necessary  that  the 
sheriff  continue  in  possession  of  the  goods.^io  .\nd  if  the  goods 
are  allowed  to  remain  on  the  premises  after  the  making  of  a 
fictitious  bill  of  sale  under  an  execution,  they  are,  it  has  been 

303  Newell  v.  Clark,  46  N.  J.  Law,  Cas.  No.  7,550;  Rogers  v.  Dickey,  H 
363.  111.  (1  Gilm.)  636,  41  Am.  Dec.  204. 

304  Delaware  Rev.  Code  1893,  p.  ^o"  See  Freeman,  Executions.  §  2U'J 
872    5§  40    41  ^"^  ^^®  ^   Freeman,   Executions,   § 

',',„,,             ,,         ..    _  268;    Shuster   t.    Robinson,    3    Har. 

3*0  St.  John's  College  v.  Mureott,  7  ,_  ,  ,    _. 

(Del.)    50. 

Term  R.  251;  Wanamaker  v.  Bowes,  ,on  Blake  v.   De  Liesseline.   4  Mr- 

E6    Md.    42;    Sherry   v.    Schuyler,    2  <;i.o^(j  (S.  C.)  496. 

Hill   (N.  Y.)  2^4.  sin  Blades  v.  Arundale,  1  Maule  & 

806  In  re  Joslyn,  2  Biss.  240,  Fed.  S.  711. 


§  32S  ON  THINGS  IN  CUSTODIA  LEGIS.  2021 

held,  liable  to  distress,  as  before.^^i  Whether  the  sheriff  has,  by 
withdrawing  from  the  premises,  abandoned  possession  of  the 
goods,  is  a  question  of  fact,  and  such  withdrawal  will,  it  seems, 
be  given  such  effect,  if  for  the  convenience  of  the  debtor.^^^ 

In  jurisdictions  where  the  goods  of  a  third  person  are,  as  at 
common  law,  subject  to  distress,  one  who  purchases  the  ten- 
ant's goods  under  execution  sale  should  ordinarily  remove  the 
goods  immediately,  in  order  to  prevent  their  being  taken  under 
a  subsequent  distress.^^^  gut  if  they  are  not  capable  of  im- 
mediate removal,  they  are  protected  from  distress  until  they  can 
properly  be  removed,  that  is,  until  a  reasonable  time  to  remove 
them  has  elapsed.-"^^*  So  growing  crops  are  protected  from  dis- 
tress until  they  are  ripe  and  the  purchaser  has  time  to  cut  them 
and  either  carry  them  away  or  consume  them,'^^ 

Goods  in  the  hands  of  a  receiver  are  not  subject  to  distress 
unless  leave  of  court  to  distrain  is  first  obtained.^i^  But  the 
mere  appointment  of  a  receiver  for  property  on  the  premises  does 
not,  it  has  been  decided,  affect  the  landlord's  right  of  distress, 
so  long  as  the  receiver  has  not  taken  possession.^^'^ 

The  fact  that  the  tenant  has  been  adjudicated  a  bankrupt,  and 
that  his  goods  are  in  the  possession  of  his  trustee  in  bankruptcy, 
does  not,  in  England,  affect  the  landlord's  right  of  distress.^^^ 
A  different  view  has  been  taken  of  the  effect  of  the  United  States 
Bankruptcy  Law,^^^  the  landlord  being,  however,  given  the  bene- 
fit of  the  statute  of  Anne,  before  referred  to.^^o 

311  Smith  V.  Russell,  3  Taunt.  400.  are   subject   even   without   leave   of 

312  Bagshawes  v.  Deacon  [1898]  2  court,  see  Walsh  v.  Walsh,  1  Ir.  Eq. 
Q.  B.  173.  209. 

313  In  re  Benn  Davis,  55  L.  J.  Q.  sit  Everett  v.  Neff,  28  Md.  176. 

B.   217.  818  Ex    parte    Grove,    1   Atk.    104; 

314  Wharton    v.    Naylor,    12    Q.    B.  Briggs  r.  Sowry,  8  Mees.  &  W.  729. 
673;  Gilbert  v.  Moody,  17  Wend.  (N.  sio  Morgan   v.   Campbell,   89  U.   S. 
Y.)  354,  31  Am.  Dec.  303.  (22  Wall.)  381,  22  Law.  Ed.  796;  In 

315  Peacock  v.  Purvis,  2  Brod.  &  B.  re  Duble,  117  Fed.  794.  A  like  view 
362;  Y/right  v.  Dewes,  1  Adol.  &  E.  has  been  taken  as  to  the  effect  of  a 
641;  Pierce  v.  Scott,  4  Watts  &  S.  state  insolvent  law.  Buckey  v. 
(Pa.)   344.  SnoufTer,   10  Md.    149,   69    Am.    Dec. 

310  In  re  Sutton.  32  L.  J.  Ch.  437:  129;    Powell  v.  Daily,  61  111.  App.  552, 

Everett  v.  NelT.  28  Md.  177;  Paine  v.  afd.  163  111.  646,  45  N.  E.  414.     Con- 

Sykes,  72  Miss.  351,  16  So.  903;  Noa  tra,  Hoskins  v.  Paul,  9  N.  J.  Law  (4 

V.  Gibson,  7  Paijre  (N.  Y.)  513:  Mar-  Halst.)    110,  17   Am.   Dec.  455. 

tin  v.  Black,  9  Paige  (N.  Y.)  641,  38  szo  See  ante,  §  183  c, 
Am.  Dec.  574.     But  that  such  goods 


2022  DISTRESS.  §  328 

That  goods  have  been  assigned  to  one  for  the  benefit  of  the 
assignor's  creditors  is  not  regarded  as  placing  them  in  the  cus- 
tody of  the  law,  so  as  to  exempt  tliem  from  distress.^^i 

Goods  which  have  been  replevied  after  distress  are  regarded 
as  in  the  custody  of  the  law,  and  so  are  not  subject  to  another  dis- 
tress because  left  on  the  premises,  until  a  reasonable  time  for 
their  removal  has  elapsed--^-^  But  if  goods  so  replevied  are  re- 
moved to  other  premises,  they  are  liable  to  distress  by  the  land- 
lord of  the  latter  premises.^  ^^ 

Cattle  distrained  damage  feasant  are  not  subject  to  distress 
for  rent.^24 

So  far  as  the  distress  may  be  merely  a  mode  of  enforcing  a  lien 
existing  from  the  time  of  the  lease  in  favor  of  the  landlord,  the 
fact  that  the  goods  are  exempt  from  distress  as  being  in  custodia 
legis  cannot,  it  is  evident,  affect  the  ultimate  right  of  the  land- 
lord to  priority  in  the  distribution  of  the  proceeds  of  the  goods.^-"^ 

g.  Beasts  of  the  plough  and  sheep.  If  there  is  other  prop- 
erty sufficient  to  satisfy  the  distress,  beasts  of  the  plough  and 
sheep  are  exempt.^^s  The  sufficiency  of  such  other  property  is 
to  be  determined  with  reference  to  the  rasonable  probability  of 
its  sufficiency,  and  the  distress  is  not  wrongful  because  it  after- 
wards appears  that  the  other  property  is  sufficient.^^?  Further- 
more, the  landlord  has  the  right  to  resort  to  subjects  of  distress 
which  are  immediately  available,  and  consequently  the  presence 
of  growing  crops  on  the  land,  which  cannot  be  productive  till 
a  later  period,  does  not  affect  the  right  to  distrain  on  the  articles 
thus  conditionally  privileged.^^s 

The  exemption  of  beasts  of  the  plough  does  not  extend  to  cart- 

321  See   Hoskins   v.    Paul,   9   N.    J.  323  Woglam    v.    Cowperthwaite,    2 

Law  (4  Halst.)  110,  17  Am.  Dec.  455;  Dall.    (Pa.)    68,  1  Am.  Dec.  260. 

Paine  V.  Aberdeen  Hotel  Co.,  60  Miss.  324  Co.   Litt.   47   b. 

360;   Paine  V.  Sykes,  72  Miss.  351,  16  325  See    Meyer    v.    Oliver,    61    Tex. 

So.  903;  Harvie  V.  Wickbam,  6  Leigh  584;    Lewis    v.    Washington    County 

(Va.)  236;  Morris  v.  Parker,  1  Ashm.  Sup'rs,   62  Miss.   16. 

(Pa.)   187;  Bischoff  v.  Trenholm,  36  326  Co.   Litt.    47    b.     It    is    so   pro- 

S.  C.  75,  15  S.  E.  346;  Dial  v.  Levy,  vlded    by    statute    in    New    Jersey. 

39  S.  C.  265,  17  S.  E.  776,  39  Am.  St.  See  1  Gen.  St.  p.  1207,  §  3. 

Rep.  716;    Eacrett  v.  Kent,  15  Ont.  9.  32t  jenner   v.   Yollann.   6    Price,  3. 

322Milliken  V.  Selye,  6  Hill  (N.  Y.)  32s  pjggott   v.    Birtles,    1    Mees.    & 

623;      Commonwealth     v.     Lelar,     1  W.  441. 
Phila.    (Pa.)    173. 


§  328  ON  CHOSES  IN  ACTION.  2023 

colts,  young  steers  and  heifers,  not  broken  in  or  used  for  har- 
ness or  the  plough.329 

h.  Implements  of  husbandry  and  trade.  Even  though  not  in 
actual  use,^^°  implements  of  husbandry  and  trade,  like  beasts 
of  the  plough  and  sheep,  cannot,  at  common  law,  be  distrained, 
if  there  are  sufficient  other  chattels  to  satisfy  the  distress.^'i  It 
is  said  that  the  books  of  a  scholar  would  be  exempt  under  this 
rule,^^2  aii(j  j^  j^^s  been  decided  that  books  of  account  of  a  trades- 
man or  merchant  are  so  exempt.^^^ 

The  expression  "the  necessary  tools  of  a  tradesman"  in  a 
statute  exempting  such  tools  from  distress  has  been  regarded  as 
including  all  appliances  necessary  for  the  ordinary  prosecution 
of  his  business,  and  not  merely  such  instruments  as  are  taken 
into  his  hand  to  be  used.^^* 

i.  Animals  ferae  naturae.  Animals  ferae  naturae  are  not  sub- 
ject to  distress,  for  the  reason,  it  is  said,  that  there  is  no  valuable 
property  in  them.^^s  Jf^  however,  animals  that  were  once  wild 
are  tamed,  the  right  of  distress  attaches.^-^^  Dogs  are  distrain- 
able  as  being,  at  the  present  day,  recognized  subjects  of  prop- 
erty .3^'' 

j.  Choses  in  action.  A  debt  due  the  tenant  is  evidently  not 
upon  the  demised  premises  so  as  to  be  liable  to  distress,  and  even 
though  evidence  of  the  debt,  such  as  a  note  or  account  book,  be 
thereon,  and  conceding  that  such  note  or  book  could  itself  be 
the  subject  of  distress,338  this  would  not  render  the  debt  subject 
thereto.339     Whether  a  -debt  due  the  tenant  by  a  resident  of  the 

829  Keen  v.  Priest,  4  Hurl.  &  N.  sss  Co.  Litt.  47  a;  3  Blackst. 
236.  Comm.  8. 

830  See  ante,  §  328  e.  sse  Davies    v.    Powell,    Willes,    46. 

831  Gorton  v.  Falkner,  4  Term  R.  See  Ford  v.  Tynte,  2  Johns.  &  H. 
565;   Fenton  v.  Logan,  9  Bing.  676;  150;   31  L.  J.  Ch.  177. 

Nargett  v.   Nlas,  1  El.  &  El.  439.  337  See    Davies   v.    Powell,    Willes, 

332  Co.  Litt.  47  a;  3  Blackst.  46;  Bunch  v.  Kennington,  1  Q.  B. 
Comm.   9.  679.       There   is   a   dictum    by  Lord 

333  Davis  V.  Arledge,  3  Hill  Law  Coke  that  dogs  are  not  distrainable 
(S.  C.)  170,  30  Am.  Dec.  360.  This  (Co.  Litt.  47  a)  as  not  being  the  sub- 
was    apparently   assumed   in   Gaunt-  ject  of  property. 

lett  V.  King,  e  C.  B.  (N.  S.)  59,  but  sss  As  to  the  right  to  distrain  on 
there  is  a  dictum  contra  by  Wil-  account  books,  see  ante,  at  note  333. 
Hams,  J.,  in  that  case.  339  That  choses  in  action  are  not 

334  McDowell  V.  Shotwell,  2  Whart.  liable  to  distress,  see  Mitchell  v. 
(Pa.)   26.  Coates,  47  Pa.  202;  Davis  v.  Arledge, 


2024  DISTRESS.  §  328 

state  or  county  could  be  regarded  as  property  therein  belonging 
to  the  tenant,  within  the  meaning  of  local  statutes^ ^P  making 
the  tenant's  property  subject  without  regard  to  its  location,  ap- 
pears never  to  have  been  judicially  considered.  Since  a  debt  is 
in  its  nature  not  susceptible  of  levy  and  sale,  and  can  ordinarily 
be  reached  only  by  proceedings  in  the  nature  of  garnishment,  it 
would  presumably  not  be  regarded  as  subject  to  distress. 

k.  Things  exempt  by  statute.  There  are  in  some  states  stat- 
utes allowing  certain  exemptions  to  the  tenant,  these  ordinarily 
following  the  statutory  provisions  as  to  exemptions  from  execu- 
tion.341  In  one  state  it  was  decided  that  a  statute  providing  that 
property  to  a  certain  value,  "owned  by  or  in  possession  of  any 
debtor,"  should  be  exempt  from  execution  or  distress,  was  not 
available  to  a  person  whose  goods  were  seized  under  distress, 
but  who  was  not  personally  liable  for  the  rent,  he  not  being  a 
'•debtor"  therefor.342 

1.  Things  not  on  the  premises — (1)  Not  ordinarily  subject  at 
common  law.  Apart  from  statute,  with  one  or  two  exceptions 
presently  to  be  noticed,  only  goods  upon  the  demised  premises 
can  be  distrained  for  the  rent  thereof,  or,  as  it  is  frequently  ex- 
pressed, the  distress  must  be  made  upon  the  premises.^^s  The 
statute  of  Marlebridge  (52  Hen.  3,  c.  15),  providing  that  no  man 
should  take  distresses  out  of  his  fee,  is  said  to  be  merely  declara- 
tory of  the  common  law.^** 

3  Hill  Law  (S.  C.)  170,  30  Am.  Dec.  In  violation  of  a  stipulation  of  the 
360.  lease  could  claim  the  exemption. 
340  See  post,  note  379.  It  would  seem,  however,  that  such 
S41  Illinois,  Kurd's  Rev.  St.  1905,  an  assignee  is  a  debtor  for  the  rent, 
c.  80,  §  30  (property,  other  than  the  assignment  itself  not  being  vo)  . 
crops  grown  on  premises,  which  is  by  reason  of  the  fact  that  it  is  pro- 
exempt  from  execution);  New  Jer-  hibited.  See  ante,  §  152  j  (2). 
sey,  1  Gen.  St.  p.  1213,  §  24  (goods  343  Co.  Litt.  161  a;  Gilbert,  Dis- 
and  chattels  to  value  of  $200  and  tresses,  45;  Capel  v.  Biiszard,  6  Bing. 
wearing  apparel);  Pennsylvania,  150;  White  v.  Hoeninghaus,  74  Md. 
Pepper  &  Lewis'  Dig.  Laws  "Landl.  127,  21  Atl.  700;  Crocker  v.  Mann,  3 
&  Ten."  §  6  (property  to  value  of  Mo.  472,  26  Am.  Dec.  684;  Weiss  v. 
S300,  exclusive  of  wearing  apparel,  Jahn,  37  N.  J.  Law,  93;  Pemberton 
and  bibles  and  school  books).  v.  Van  Renpselaer,  1  Wend.  (N.  Y.) 
342  Rosenberger  v.  Hallowell,  35  307;  Clifford  v.  Beems,  3  Watts 
Pa.  369,  3  Phila.  (Pa.)  330.  It  was  (Pa.)  246;  Mosby  v.  Leeds,  3  Call 
accordingly  in  thi?  case  held  that  (Va.)  439. 
neither  a  subtenant  nor  an  assignee  s44  2  Co.  Inst.  131. 
claiming  under  an  assignment  made 


§  328  ON  THINGS  OFF  THE  PREMISES.  2025 

It  has  in  England  been  decided  that  the  half  of  a  highway  ad- 
jacent to  the  premises  in  possession  of  the  tenant  being  presump- 
tively a  part  of  the  land  demised,^^^  goods  placed  thereon  are 
prima  facie  subject  to  distress.^"*^  In  this  country  there  are  con- 
trary decisions,  to  the  effect  that  goods  on  the  highway  in  front 
of  the  demised  premises  are  not  subject  to  distress,  even  though 
the  land  under  the  highway  belonged  to  the  lessor  at  the  time 
of  the  lease.2^'^  These  decisions  seem  to  be  in  harmony  vnth  the 
provision  of  the  statute  of  IMarlebridge,  forbidding  distresses  in 
the  king's  highway. 

In  accordance  with  the  rule  that  a  distress  must  be  made  upon 
the  demised  premises,  it  has  been  decided  that  there  is  no  right 
to  distrain  things  lying  upon  land  in  which  the  tenant  is,  by  the 
lease,  given  merely  an  easement  of  passage.^^^  So,  where  a  de- 
mise of  land  upon  tide  water  did  not  include  the  land  between 
high  and  low-water  mark,  a  barge  lying  between  those  lines  was 
h^ld  not  to  be  liable  i^^^  and  where  the  lease  M^as  in  terms  of  a 
certain  wharf  and  all  the  privileges  thereto  belonging',  a  vessel 
attached  to  the  wharf  by  the  usual  fastenings  was  held  not  to 
be  subject.3^°  For  the  same  reason,  if  two  pieces  of  land  are 
let  by  separate  demises,  though  both  demises  are  incorporated  in 
one  instrument,  a  distress  cannot  be  made  on  one  piece  of  land 
for  rent  due  on  account  of  the  otlier.^si 

It  has  been  decided  that  a  right  to  distrain  things  belonging 
to  the  lessee  off  the  premises  may  be  given  by  special  stipula- 
tion.352 

(2)  Cattle  seen  on  premises  and  driven  thsrefnna.  An  ex- 
ception to  the  general  rule  exists  at  common  law  in  case  cattle, 
seen  on  the  premises  by  the  landlord  or  his  agent  when  about  to 

345  See  Leake,  Uses  &  Profits  of  349  Buszard  v.  Capel,  8  Barn.  &  C. 
Land,    487;    Norton,    Deeds,    232;    2    141,  6  Bing.  l&O. 

Tiffany,  Real  Prop.  §  360.  350  Sanderson  v.  Kingston  Marine 

346  Pledges  V.  Lawrence,  18   J.   P.    R.  Co.,  3  U.  C.  Q.  B.  168. 

347.  3r.i  Rogers  V.  Birkmire,  2  Strange, 

34TRobeIen    v.    National    Bank    of  1040,  Lee  t.  Hardw.  245:    Phillips  v. 

Wilmington,  1  Marvel  (Del.)  346,  41  Whitscd,  2  El.  &  El.  804,  809. 

Atl.  80;    Pickering  v.  Breen,  22  Pa.  352  in   re  Ronndwood  Colliery  Co 

Snper.  Ct.  4.  [ISO?]   1   Ch.   373;    Gold  v.  Gleason, 

348Winslow  V.  Henry,  5  Hill    (N.  26  Pittsb.  L.  J.   (N.  S.)    10;    Dinner 

Y.)   481.  V.   McAndrews,  10  Pa.  Dist.  R.   221. 


2026  DISTRESS.  §  32S 

distrain,  are  driven  away  therefrom  to  avoid  distress,  and  the 
landlord  may  follow  and  distrain  the  cattle.^^^ 

(3)  Statutory  right  as  to  things  removed.  The  statute  11 
Geo.  2,  c.  19,  a  J,  provided  that  if  a  tenant  " f rau;lulently  or 
clandestinely  convey  away  or  carry  off  from"  the  premises  his 
goods  or  chattels,  "to  prevent  the  landlord  from  distraining  the 
same  for  arrears  of  rent,"  the  landlord  or  his  agent  might, 
"within  thirty  days  next  ensuing  such  conveying  away  or  carry- 
ing off,"  seize  such  goods  and  chattels,  wherever  they  might  be 
found,  as  a  distress  for  the  said  arrears  of  rent,  and  sell  or  other- 
wise dispose  of  them  as  if  distrained  on  the  premises.  There  are 
in  several  states  provisions  of  the  same  general  character,  giving 
the  landlord  a  right,  under  certain  circumstances,  to  distrain 
goods  of  the  tenant  removed  from  the  premises,^^*  and  so  far 
as  in  any  state  a  lien  may  exist  on  goods  or  crops  on  the  prem- 
ises and  distress  may  be  a  proper  mode  of  enforcing  the  lien, 
such  goods,  can,  it  would  seem,  be  distrained  alter  as  well  as  be- 
fore removal.^^5'  ^^^ 

The  English  statute  authorizes  a  distress  only  on  goods  re- 
moved during  an  actually  existing  tenancy ,3^'^  or,  if  the  tenancy 
has  ended,  within  such  a  period  thereafter  and  under  such  cir- 
cumstances ^^^  that  a  distress  on  the  premises  would  be  author- 
ized.3^^ 

The  English  statute,  and  likewise  several  state  statutes,  in 
terms  authorize  the  landlord  to  distrain,  after  removal,  on  the 
goods  of  the  tenant,^^*^  and  such  language  does  not  authorize  a 

353  Co.  Litt.  161  a;  2  Co.  Inst.  132;  S58  Gray  v.  Stait,  11  Q.  B.  Div.  66S. 

Bradby,    Distresses,    94.  But  see  Dorsey  v.  Hays,  7  Har.  &  J. 

z^iDelaxcare  Rev.  Code  1893,  p.  (Md.)  370.  The  same  construction 
869,  §  23;  Maryland,  Code  Pub.  Gen.  ^as  placed  on  the  New  York  statute, 
Laws  1904,  art.  53,  §  18;  Mississippi  gi^pg  repealed.  Burr  v.  Van  Bus- 
Code  1806,  §  2850;  New  Jersey,  1  ^.^^^  3  ^^  ^^  y.)  263;  Pember- 
Gen.  St.  p.  1210,  §  14;  Pennsylvania,  ^^^  ^  ^^^  Rensselaer,  1  Wend.  (N. 
Pepper  &  Lewis  Dig.  Laws,  "Landl.  y.)     307.     Williams    t.    Terboss,    2 


Wend.   (N.  Y.)  148,  19  .-^.m.  Dec.  561. 
359  See  ante,  §  326  e. 


&  Ten."  §  8;  South  Carolina  Civ 
Code  1902,  §§  2428,  2429;  Virginia 
Code  1904,  §  2791;  West  Virginia 
Code  1906.  §  3404.  ''°  ^ee  Delaware  Rev.   Code   1893, 

3n5,35«See  ante,  §   321   j.  P-  ^^^'  §   23;   Mississippi  Code  1906. 

357  See  Angell  v.  Harrison,  17  L.  §  2850;  New  Jersey,  1  Gen.  St.  p. 
J.  Q.  B.  25;  Ashmore  v.  Hardy,  7  1210,  §  14;  Pennsylvania,  Pepper  & 
Car.  &  P.  501.  Lewis'  Dig.  Laws,  "Landl.  &  Tea."  § 


§  328  ON  THINGS  OFF  THE  PREMISES.  2027 

distress  upon  the  goods  of  another  person,36i  even  though  he 
be  an  undertenant,3<52  or  even  though  such  person,  claiming 
the  goods  under  a  bona  fide  mortgage  or  sale  made  by  the  ten- 
ant, himself  removed  the  goods  from  the  premises.^ss 

In  order  that  the  landlord  may  follov»'  the  goods  removed,  the 
removal  must,  by  the  English  statute,  have  been  made  "fraudu- 
lently or  clandestinely,"  and  the  Pennsylvania  statute  is  similar 
in  this  regard.364  in  other  states  the  statute  does  not  require 
that  the  removal  shall  have  been  fraudulent.^^s  Goods  may,  it 
has  been  decided,  be  removed  fraudulently,  although  not  clan- 
destinely, as  when  removed  in  open  day  with  notice  to  the  land- 
lord.3^  But  that  a  removal,  made  in  the  daytime,  is  without  the 
landlord's  knowledge,  does  not  show  it  to  be  fraudulent  or 
clandestine  within  the  statute.^^^  A  removal  is  not  fraudulent 
when  made  by  a  bona  fide  creditor  of  the  tenant,  for  the  purpose 
of  securing  his  debt,  though  this  is  done  with  the  consent  of 
the  tenant.-'*^^ 

8;   South  Carolina  Civ.  Code  1902,  §  sea  pnsbey    v.    Thayer,    25    Wend. 

2428.  (N.  Y.)    396;   Bussing  v.  Bushnell,  6 

301  Thornton  v.  Adams,  5  Maule  &  Hill     (N.     Y.)     382.     See     Bach     v. 

S.  38;  Postman  v.  Harrell,  6  Car.  &  Meats,  5  Maule  &  S.  200. 

P.  225;    Robelen  v.  National  Bank  of  3«.f  That  the  lease  expressly  gives 

Wilmington,  1  Marvel  (Del.)  346,  41  a    right    of    distress    upon    removal 

Atl.  80;   Neale  v.  Clautice,  7  Har.  &  does  not  authorize  a  distress  on  the 

J.    (Md.)    372;    Adams  v.   La  Comb,  goods    removed    unless   the    renroval 

1   Ball.    (Pa.)    440;    Sleeper  v.    Par-  was      fraudulent      or      clandestine, 

rish,  7  Phila.   (Pa.)    247;    Frisbey  v.  Grant's  Appeal,  44   Pa.  477;    Owens 

Thayer,  25  Wend.   (N.  Y.)  397;   Slo-  v.  Shovlin,  116  Pa.  371,  9  Atl.  484. 

cum  V.  Clark,  2  Hill   (N.  Y.)  475.  sos  see  Delaware  Rev.   Code  1893, 

3fi2  New  v.  Pyle,  2  Houst.  (Del.)  9;  p.    ggg,    §   23;    Maryland,   Code   Pub.' 

Coles  V.   Marquand,   2   Hill    (N.   Y.)  Gen.  Laws  1904,  art.  53,  §  18;   Mis- 

447;    Acker  v.  Witherell.  4  Hifl  (N.  ^issippi  Code  1906,  §  2850;  New  Jer- 

Y.)    112.     But  goods  of  an  assignee  ^^^^  ^  q^^    g^    p    j^j^^  ^  j^.   ^^^^ 

of  the  lessee  are  liauie,  he  being  a  Carolina    Civ.    Code    1902,    §    2428- 

tenant.     See   Acker   v.   Witherell,   4  .    . 

Tirgtnm    Code    1904,    §    2791;    West 

Hill  (N.  Y.)  112;  Morris  v.  Parker,  1  ^.     .    .     „  ,     ,„„,    ,  "    „, 

*   X.        /T,    X  -.or,     T               r.      A  ■  ^irgwia  Code  1906,  §  3404. 
Ashm.  (Pa.)  187;  Jones  v.  Gundnm, 

3  Watts  &  S.  (Pa.)  531.     In  Yirginia  '''  Opperman  v.  Smith,  4  Dowl.  & 

(Code  1904,   §  2791)    and   West   Vir-  ^-  ^^• 

pinia  (Code  1906,  §  3404),  the  land-  ^  Grace  v.   Shiveley,  12  Serg.  & 

lord  may  follow  and  distrain  on  the  R-    (P^)    217;     Grant's    Appeal,    44 

goods    of    the    undertenant    as    well  Pa-   •*77;    Purfel  t.   Sands,   1   Ashm. 

as   on    those   of  the    tenant,    within  (Pa.)    120. 

thirtv  davs   after  their  removal.  8<»8  Bach    v.   Meats,   5    Ma«le   &   S. 


2028  DISTRESS  §  328 

A  state  statute,  giving  a  right  to  distrain  goods  removed,  ha? 
been  held  not  to  apply  to  goods  removed  by  the  sherifl:'  under  an 
attaehment.^^^ 

Even  though  the  landlord  would  otherwise  be  entitled  to  fol- 
low the  goods,  he  cannot,  by  the  express  terms  of  most  of  the 
statutes,  do  so  if  the  goods  have  passed  into  the  hand  of  a  bona 
fide  purchaser  for  value.^''^" 

There  are  decisions  to  the  effect  that  the  English  statute  ap- 
plies only  if  rent  is  actually  due  at  the  time  of  the  removal  of 
the  goods.^^i  The  correctness  of  this  view  has,  however,  been 
questioned,3'^2  ^nd  it  has  been  decided  that  the  landlord  can 
at  any  rate  distrain  goods  removed  on  the  morning  of  the  day  on 
which  the  rent  became  due.^'''^  The  Pennsylvania  statute  like- 
wise has  been  construed  to  apply  only  when  the  removal  is  after 
the  rent  is  due,^''*  and  it  has  been  decided  in  that  state  that 
equity  cannot  prevent  the  removal  of  the  goods  until  the  landlord 
can  distrain.375  in  some  states,  as  hereafter  stated,^'^^  the  land- 
lord may  distrain  before  the  rent  is  due,  upon  the  removal  of  the 
property  from  the  premises,  and  in  one  state  the  statute  giving  a 
right  to  follow  the  goods  removed  authorizes  a  distress  on  proper- 
ty removed  within  sixty  days  before  or  after  the  rent  falls  due.^'i''' 

In  a  number  of  states  there  is  a  statutory  provision  for  an  at- 
taehment  in  case  of  the  removal  of  goods  for  the  purpose  of  avoid- 
ing payment  of  rent.^'^^ 

(4)     Statutory  right  as  to  tenant's  goods.    In  at  least  three 

200.     See     Frisbey    v.     Thayer,     25  v.  Bealmear,  79  Md.  36,  28  Atl.  898. 

Wend.  (N.  Y.)  396.  s^i  Watson    v.    Main,    3    Esp.    15; 

369  White  V.  Hoeninghaus,  74  Md.  Rand  v.  Vaughan,  1  Bing.  N.  C.  767. 

127,    21    Atl.    700.     See    Peacock    v,  372  Purneaux  v.  Fotherby,  4  Camp, 

Hammitt,    15    N.    J.    Law    (3    J.    S.  136. 

Green)    165,  28  Am.  Dec.  400,  as  to  373  Dibble  v.  Bowater,  2  El.  &  Bl. 

removal   under   execution.  564. 

?7oSee  St.  11   Geo.   2,  c.  19,   §  2;  374  Grace  v.   Shiveley,   12   Serg.  & 

Delaioare  Rev.  Code  1'893,  p.  869,  §  R.     (Pa.)     217;     Jackson's     Appeal 

23;  Maryland,  Code  Pub.  Gen.  Laws  (Pa.)   9  Atl.  306. 

1904,  art.  53,  §  18;  Mississippi  Code  875  Jackson's  Appeal    (Pa.)    9  Atl. 

1906,  §  2850;  2few  Jersey,  1  Gen.  St.  306. 

p.  1210,  §  14;   Pennsylvania,  Pepper  37 e  gee  post,  §  333  b. 

&  Lewis'  Dig.  Laws,  "Landl.  &  Ten."  377  Maryland,  Code  Pub.  Gen.  Laws 

§  8;    South  Carolina  Civ.  Code  1902.  1904,  art.  53,  §  IS. 

§2429.     A  trustee  for  creditors  is  not  »78  See   post,   §   347. 
such  a  bona  fide  purchaser.    Burnett 


§  329  LOSS  OF  RIGHT.  2029 

states  the  common-law  requirement  that  the  proods  be  upon  the 
demised  premises  no  longer  exists,  and  the  goods  of  the  tenant 
may  be  distrained  wherever  located.^'^^ 

§  329.     Loss  of  right  of  distress. 

a.  By  extinction  of  rent.  Any  matter  which  will  extin^ish 
or  suspend  the  rent  will  necessarily  deprive  tlie  landlord  of  the 
right  to  distrain  for  the  rent  which  would  otherwise  have  become 
due.  Thus,  after  partial  or  total  eviction  of  the  tenant  by  the 
landlord,  or  his  total  eviction  by  title  paramount,  rent  ceases  to 
accrue,3*^o  gud  there  can  be  no  distress  as  for  rent  subsequently 
accruing.381  And  the  fact  that  the  lessee  is  prevented  taking 
possession  through  the  landlord's  fault  may  have  the  same 
effect.382  So  after  the  tenancy  has  come  to  an  end  by  reason 
of  a  re-entry  for  breach  of  condition,383  there  can  be  no  distress 
as  for  rent  subsequently  to  accrue.384  Likewise,  the  fact  tliat 
the  rent  has  been  garnished  in  the  hands  of  the  tenant  by  a 
creditor  of  the  landlord  suspends  the  rent  and  the  right  to  dis- 
train therefor.385 

b.  By  tender  of  rent  due.  There  can  be  no  valid  distress 
after  the  tenant  has  made  a  legal  tender  of  the  full  amount  of 
the  rent  in  arrear.^ss  tj^^  requirements  of  a  legal  tender  for  this 
purpose  are  the  same  as  for  other  purposes.ssT  The  tender 
must  be  unconditional,  and,  consequently,  it  is  insuflScient  if  con- 
ditioned upon  the  landlord's  admission  that  no  greater  sum  is 
due,388  though  the  tender  is  not  vitiated  by  the  fact  that  it  is 

379  Georgia  Code  1S95,  §  4818;   I^        ssa  See  ante,   §  182  j. 

Unois,   Kurd's   Rev.   St.   1905,   c.   80,  384  Bridges  v.  Smyth,  5  Bing.  410. 

§  16;  Kentucky  St.  1303,  §  2307.  885  Patterson  v.  King,  27  Ont.  56. 

380  See  ante,  §  182  e.  sse  Six   Carpenters'   Case,   8   Coke, 
ssiHopcraft  v.  Keys,  9  Bing.  613;  146  a;  Holland  v.  Bird,  10  Bing.  15; 

Baker  v.  Jeffers,  4  Cranch  C.  C.  707,  Willims  y.  Mangum,  122  Ga.  295,  50 
Fed.  Cas.  No.  772;  Wade  v.  Halli-  S.  E.  110;  Bonaparte  v.  Thayer,  95 
gan,  16  111.  511;  Tunis  v.  Grandy,  Md.  548,  52  Atl.  496;  Davis  v.  Henry. 
22   Grat.    (Va.)    109.  63  Miss.  110;  Hunter  v.  Le  Conte,  6 

S82  Lewis  V.   Payn,  4      Wend.    (N.    Cow.   (N.  Y.)   728;   Lyon  v.  Houk,  9 
Y.)     423;    Lawrence    v.    French,    25    Watts    (Pa.)    193;   Rees  v.  Emerick, 
Wend.    (N.  Y.)    443,   7  Hill   (N.  Y.)    6  Serg.  &  R.    (Pa.)   286.     See  Tripp 
519;    Hatfield    v.    PuHerton,    24    111.    v.  Grouner,  60  IH.  474. 
278:    Spencer   v.    Burton,    5    Blackf.        sst  See  ante,   §  178. 
(Ind.)  57.     See  ante,  §  182  a  (3).  sss  Finch  v.  Miller,  5  C.  B.  428. 


2030  DISTRESS.  §  329 

accompanied  by  a  statement  on  the  part  of  the  tenant  that  he 
owes  nothing  more.^^^ 

A  tender  of  the  rent  may,  at  common  law,  be  made  at  any 
time  before  entry  by  the  landlord  or  his  bailiff  to  make  dis- 
tress,3»o  and  a  distress  thereafter  is  wholly  wrongfuL^^^  If  made 
after  the  levy  but  before  the  impounding,  the  tender  must,  it 
geems,  include  the  costs  of  the  distress,392  but  if  such  a  tender  is 
made,  a  subsequent  detention  393  or  removal  ^94  of  the  tenant's 
goods  by  the  landlord  is  wrongful. 

At  common  law,  a  tender  made  after  the  impounding  is  too 
late  ;395  but  it  has  been  decided  in  England,  in  view  of  the  change 
in  the  la.w  by  St.  2  W.  &  M.  sess.  1  c.  5,  entitled  "an  act  for 
enabling  the  sale  of  goods  distrained  for  rent,  in  case  the  rent 
be  not  paid  within  a  reasonable  time,"  and  providing  for  their 
saJe  if  not  replevied  within  five  days  after  notice,'^^^  and  in  view 
also  of  the  fact  that  by  St.  11  Geo.  2,  c.  19,  the  goods  can  be  im- 
pounded on  the  premises,  and  hence  the  tenant  would  ordinarily 
have  no  opportunity  for  payment  after  entry  and  before  im- 
pounding,^^'^  that  the  tenant  is  entitled  to  tender  the  rent  and 
co-sts  within  the  statutory  five  days,  and  so  prevent  a  sale,  with- 
out being  compelled  to  institute  a  replevin  suit,  which  must 
necessarily  be  unsuccessful.^^^  In  this  country  it  has  been  de- 
cided that,  under  a  statute  similar  to  that  of  2  W.  &  M.  sess.  1, 

389Bowen  v.  Owen,  11  Q.  B.  130;  were     tendered,     but     the     opinion 

Jones  V.  Bridgman,  39  Law  T.    (N.  makes  no  reference  to  that  fact  in 

a.  J   500;  Manning  t.  Lunn,  2  Car.  &  holding  the  tender  good. 

^    l^  393  Evans  v.   Elliott.  5   Adol.  &  E. 

390  Bennett  v.  Bayes,  5  Hurl.  &  N.  142;  Loring  v.  Warburton,  El.  Bl.  & 
391_  El.    507;    Newell   v.   Clark,  46   N.   J. 

391  Six  Carpenter's  Case,  8  Coke,  Law,  377;  Hilson  v.  Blain,  2  Bailey 
146  a;  Branscomb  v.  Bridges,  1  Barn.  Law  (S.  C.)  168. 

&  C.  145:   Holland  v.  Bird,  10  Bing.  304Vertue  v.   Beasley,  1  Moody   & 

15.     In  Hunter  v.  Le  Conte,  6  Cow.  R.  21. 

(N.  Y.)  728.  it  is  held  that  a  tender,  395  Six   Carpenters'   Case,   8   Coke, 

even   before    distress,    must   include  146  a;  Ladd  v.  Thomas,   12  Adol.  & 

costs  of  warrant  to  bailiff,  the  stat-  E.  117;   Thomas  v.  Harries,  1  Man. 

ute     authorizing    the     retention     of  &   G.    695. 

such  costs  from  the  proceeds  of  sale.  sse  See  post,  §  342  a. 

392  See  Vertue  v.  Beasley,  1  Moody  S97  See  post,  §  339. 

&  R.  21:  Loring  v.  Warburton,  El.  stis  Johnson  v.  Upham,  2  El.  &  El. 
Bl.  &  El.  507.  In  Hilson  v.  Blain,  2  250,  overruling  Ellis  v.  Taylor,  8 
Bailey  Law   (S.  C.)   168,  such  costs   Mees.  &  W.  415. 


§  329  ^^^S  °^  RIGHT.  2031 

c.  5,  the  tenant  may  tender  the  balance  of  rent  dne  and  costs 
at  any  time  previous  to  the  completion  of  the  sale,  though  not 
within  the  five  days  named,  and  that  the  landlord  is  liable  in 
trespass  for  the  value  of  goods  thereafter  sold  by  him.^^o 

By  St.  11  Geo.  2,  c.  19,  a  tender  might,  in  the  case  of  a  distress 
levied  on  growing  crops,  be  made  at  any  time  before  they  were 
ripe  and  cut  or  gathered.^^^ 

The  tender  may  be  made  to  the  landlord,  or  to  his  agent  hav- 
ing authority  to  receive  the  rent.^o^  And  one  authoi-ized  by  the 
landlord  to  distrain  is  usually  regarded  as  an  agent  for  this  pur- 
pose.402 

c.  By  release,  suspension,  or  waiver  of  right.  The  right  of 
distress  may,  it  seems,  be  excluded  by  an  express  release  of  such 
right  on  the  part  of  the  landlord,  or  a  provision  to  that  effect  in 
the  lease. ^3  And  if  the  landlord  induces  a  third  person  to  put 
goods  on  the  premises  by  agreeing  not  to  distrain  on  them,  he 
is  estopped  to  do  so.^^^  Moreover,  the  right  of  distress  may  by 
express  provision  be  made  subject  to  a  condition  precedent,  as 
that  the  landlord  shall  first  have  paid  the  rent  due  to  a  chief 
landlord,'*o5  or  it  may  be  postponed  until  a  certain  period  after 
default,*«6  or  be  excluded  as  to  certain  goods,^^?  or  it  may  be 
conditioned  upon  a  previous  demand.^^s 

It  has  been  decided  that  an  agreement  that  the  tenant  shall 
apply  the  rent  as  it  falls  due  to  the  payment  of  the  lessor's  debts 
is  inconsistent  with,  and  excludes,  the  right  of  distress  ;-'09  but 
that  such  right  is  not  excluded  by  the  lessor's  acceptance  of  an 
assignment  by  the  tenant  in  trust  for  creditors.^!** 

S99  Richards  v.  McGrath,  100  Pa.  404  Horsford  v.  Webster,  1  Cromp. 
ggg  M.  &  R.   696;    Wallace  v.   Eraser,  2 

400  Section  9.     See  Owen  v.  Legh,    Can.  Sup.  Ct.  522. 

3  Barn.  &  Aid.  470,  per  Abbott,  C.  J.        ^^s  Giles   v.   Spencer,   3    C.   B.    (N. 

401  Smith   V.   Goodwin,    4   Barn.   &    S.)   244. 

Adol.  413;  Bennett  v.  Bayes,  5  Hurl.  4oc  Giles   v.   Spencer,   3   C.   B.    (N. 

&    N.     391;     Browne    v.     Powell,    4  S.)     244;     Oxenham     v.     Collins,     2 

Bing.   230.  '  Fost.  &  F.  172. 

402  Hatch  V.  Hale.  15  Q.  B.  10;  407  Wallace  v.  Fraser,  2  Can.  Sup. 
Howell    V.    Listowell    Rink    &    Park  Ct.  522.  . 

Co.,  13  Ont.  476;   Hilson  v.  Blain,  2  408  See  post.   §   335  a. 

Bailey  Law  (S.  C.)  168.  409  Ege  v.  Ege,  5  Watts  (Pa.)  134. 

403  See  opinion  of  Willes,  J.,  In  4io  Butcher  v.  Culver,  24  Minn. 
Giles  V.  Spencer,  3  C  B.  (N.  S.)  244.  584. 


2032  DISTRESS.  §  329 

d.  Effect  of  existence  of  other  remedies.  The  right  of  dis- 
tress is  not  affected  by  the  existence  of  other  remedies  for  the  col- 
lection of  rentj^^i  and  it  has  occasionally  been  decided  that  the 
fact  that  the  landlord  has  procured  a  personal  judgment  for  the 
rent  does  not  affect  the  right  to  distrain.^^^  j^  England,  how- 
ever, there  are  two  decisions  by  individual  judges  to  the  con- 
trary effect,  that  the  recovery  of  a  judgment  for  rent  extin- 
guishes the  right  of  distress.'* ^^ 

That  the  tenant  has  given  to  the  landlord  a  note,  secured  by 
chattel  mortgage,  for  the  amount  of  the  rent,  does  not  involve 
a  waiver  of  the  right  of  distress,*^^  nor  does  the  fact  that  the 
landlord  is  by  the  lease  given  a  lien  for  rent  upon  chattels  on  tiie 
land  affect  the  right.'*^^  And  if  he  has  by  statute  a  lien,  en- 
forcible  by  distress,  upon  certain  classes  of  property  on  the 
premises,  he  may,  it  has  been  held,  levy  on  such  property  and 
also  on  other  property  on  the  premises  by  one  distress.^^^  In 
one  state  it  is  expressly  provided  by  statute  that  the  acceptance 
of  security  for  rent  shall  not  affect  the  right  of  distress.^^'^ 

*"In  Block  v.  Latham,  63  Tex.  Law  R.  445,  per  Cave,  J.  In  Foa, 
414,  it  was  held  that  creditors  of  Landl.  &  Ten.  (2d  Ed.)  436,  these  de- 
the  tenant  eould  not,  on  the  theory  cisions  are  criticized  on  the  ground 
of  marshalling  assets,  compel  the  that  "the  right  of  distress  is  a 
landlord  to  proceed  on  a  covenant  remedy  collateral  to  and  concurrent 
by  a  third  person  to  pay  the  rent  with  the  right  of  action,  and  that, 
before  selling  goods  of  the  tenant  on  in  conformity  with  principle,  the 
v/hich  he  had  levied  a  distress.  judgment  being  only  a  security  for 

*i2Chipman  v.   Martin,   13   Johns,    the  original  cause  of  action,  cannot 
(N.  Y.)    240;    Bantleon  v.   Smith,  2    operate  to  change  that  remedy  until 
Bin.   (Pa.)  146,  4  Am.  Dee.  430.     In    it  has  been  made  prouuctive  in  sat- 
New    York,    after    the    first    of   the   isfaction."    Citing   Dra.ke    v.    Mitch- 
above  decisions,  a  statute  was  adopt-    ell,    3    East,    251;    Wegg-Prosser    v. 
ed      providing      that      no      distress    Evans  [1895]  1  Q.  B.  108. 
should  be  made  for  rent  for  which       "4  Atkins  v.  Byrnes,  71  III.  326. 
a  judgment  had  been  recovered  in  a       4ib  O'Hara  v.  Jones,  46  111.  288. 
personal   action,   but  this   was  held       *i6  McDougal   v.    Landers,   75    Ga. 
not    to    apply    to    a   judgment    con-   140.     Nor,  It  has  been  held,  does  a 
fessed  upon  a  bond  and  warrant  of   restriction    in    the     instrument    of 
attorney,    executed    at    the    time    of    lease  as  to  the  amount  for  which  the 
the  making  of  the  lease,  as  collat-   statutory  lien   may  be   asserted  af- 
eral     security.     Bates    v.    Nellis,     5    feet   the    remedy   by    distress.     Par- 
Hill  (N.  Y.)  651.  rott  v.  Malpass,  49  S.  C.  4,  26  S.  E. 

41.^  Chancellor  v.  Webster,  9  Times    884. 
Law  R.   568,  per  Knight  Bruce,  J.;        ■«"  Maryland,      Code      Pub.      Gen. 
Potter  v.   Bradley  &   Co.,  10  Times    Laws  1904,  art.  53,  §  15. 


I  329  LOSS  OF  RIGHT.  2033 

The  landlord  may,  it  has  been  decided,  concurrently  distrain 
for  rent  and  enforce  a  forfeiture  for  breach  of  covenants  other 
than  that  for  rent.^^® 

e.  Effect  of  acceptance  of  note,  draft,  or  bond  for  rent.  That 
the  landlord  has  accepted  a  note,  draft,  or  bond  for  the  amount 
of  the  rent  does  not,  unless  it  was  accepted  in  absolute  satisfac- 
tion of  the  rent,  preclude  him  from  thereafter  distraining.**^ 

It  has  in  this  country  been  held  that  the  acceptance  of  a  note 
or  draft  for  the  rent  raises  a  presumption  of  an  undertaking 
not  to  distrain  until  the  maturity  of  the  note  and  its  nonpay- 
ment.'*^'^  In  England  there  seems  to  be  no  presumption  in  this 
regard,  but  the  acceptance  of  the  note  or  draft  is  evidence  from 
which  the  jury  may  infer  an  undertaking  to  suspend  the  remedy 
by  distress.'*^! 

"When  the  landlord  accepts  absolutely,  in  lieu  of  a  grain  rent 
due  to  him,  a  money  indebtedness  evidenced  by  notes  of  his 
tenant,  there  is  no  right  to  distrain  for  the  money.*^^ 

f.  Effect  of  tenant 's  death.  In  England  the  death  of  a  tenant 
for  a  term  of  years  does  not  affect  the  right  of  the  landlord  to 
distrain  for  rent  upon  the  chattels  on  the  premises,*^  though 

"8  Becker  v.  Werner,  98  Pa.  555.  Rich.  Law  (S.  C.)  226;  Hornbrooks 
But  that  distress  waives  a  right  of  v.  Lucas,  24  W.  Va.  493,  49  Am.  Rep. 
forfeiture  for  previous  breaches,  277.  And  see  Crone  v.  Bane,  48  III. 
gee  ante,  §  194  i    (1)    (g).  App.    287,  where   by   request  of  the 

419  Griffin  v.  Woodward,  4  Cranch  tenant  a  debtor  of  the  latter  agreed 
C.  C.  709,  Fed.  Gas.  No.  5,818;  Alex-  with  the  landlord  to  pay  the  rent  due. 
ander  v.  Turner,  1  Cranch  C.  C.  86,  421  Palmer  v.  Bramley  [1895]  2  Q. 
Fed.  Gas.  No.  176;  Giles  v.  Ebsworth,  B.  405,  distinguishing  Davis  v.  Gyde, 
10  Md.  333;  Atkins  v.  Byrnes,  71  111.  2  Adol.  &  E.  623,  as  having  been  de- 
326;  Snyder  v.  Kunkleman,  3  Pen.  &  cided  on  the  pleadings.  On  the  au- 
W.  (Pa.)  487;  Price  v.  Liraehouse,  4  thority  of  this  case  it  was  held  in 
McCord  (S.  C.)  544;  Printems  v.  Hel-  Colpitts  v.  McCullough,  32  Nova 
fried,  1  Nott  &  McC.  (S.  C.)  187.  Scotia,  502,  that  the  right  of  distress 

And  it  has  been  held  that  the  rem-  was  suspended  by  the  giving  of  a 
edy  of  distress  was  not  extinguished  note,  while  a  contrary  decision  was 
by  the  taking  of  a  bond  and  warrant  rendered  in  Simpson  v.  Howitt,  59 
of  attorney  as  collateral  security  for  U.  C.  Q.  B.  610,  on  the  authority  of 
the  rent,  and  the  entry  of  judgment  the  earlier  English  case. 
thereon.  Bates  v.  Nellis,  5  Hill  (N.  422  Warren  v.  Foniey,  13  Serg.  &  R. 
Y.)   651.  (Pa.)  52. 

4-20  Giles  V.  EbswTjrth,  10  Md.  333;        42.-?  Braithwaite  v.  Cooksey,  1  H.  Bl. 
Jndge  V.  Fiske.  2  Speers  T^aw  (S.  C.)    465;  2  Williams,  Executors,  660. 
436,  42  Am.  Dec.  382;  Fife  v.  Irving,  1 

U  and  Ten.  128. 


2034  DISTRESS.  ,§  330 

the  rule  is  different  in  the  case  of  the  death  of  a  tenant  at  will, 
since  in  such  case  the  tenancy  is  ended,  and  the  statute  of  Anne, 
allowing  a  distress  after  the  end  of  a  tenancy ,^2^  is  not  appli- 
cable because  the  person  from  whom  the  ai-rears  are  due  is  not 
in  possession.^25  ^j^g  same  view,  that  the  death  of  a  tenant  for 
years  does  not  affect  the  right  of  distress,  has  occasionally  been 
asserted  in  this  country .-^^s  in  other  cases  the  right  is  asserted 
to  exist,  in  case  of  the  death  of  the  tenant  intestate,  only  after 
the  appointment  of  an  administrator,  on  the  theory  that  the 
proceeding  must  be  against  some  person.-*  27  And  in  some  juris- 
diction all  right  to  distrain  after  the  tenant's  death  has  been 
denied,  on  the  various  grounds  that  the  local  statute,  fixing  the 
priority  of  the  respective  classes  of  claims  against  a  decedent's 
estate,  might  be  nullified,^^  that  the  local  statute  did  not  in 
terms  authorize  the  proceeding  against  an  administrator,^^^  and 
that  the  landlord  had  already,  in  the  particular  case,  a  statutory 
lien  on  the  property  sought  to  be  levied  on,  and  there  was  no 
danger  of  the  removal  of  the  property  by  the  administrator.'*^'^ 

§  330.     Successive  distresses. 

A  person  cannot  ordinarily  distrain  a  second  time  for  the  same 
rent  if  he  could  have  taken  sufficient  at  first  to  satisfy  his  claim,-*^* 
nor  can  he,  after  distraining,  abandon  that  distress  and  again 
distrain  for  the  same  rent.'*^^     If,  however,  there  is  a  mistake 

424  See  ante,  §  326  e.  (Pa.)   489;   Gandy  v.  Dickson,  3  Pa. 

425  Turner  v.  Barnes,  2  Best  &  S.  Dist.  R.  411;  Salvo  v.  Schmidt,  2 
435.  Speers  Law  (S.  C.)   512;   Perkins  v. 

426  McLaughlin  v.  Riggs,  1  Cranch  Traynham,  3  Willson,  Civ.  Cas.  Ct. 
C.  C.  410,  Fed.  Cas.  No.  8,872;  Keller  App.  (Tex.)  §  78.  But  in  Mickle's 
V.  Weber,  27  Md.  660.  In  Rauh  v.  Adm'r  v.  Miles,  1  Grant's  Cas.  (Pa.) 
Ritchie,  1  111.  App.  (1  Bradw.)  188,  320,  It  was  held  that  the  landlord 
it  was  decided  that  the  distress  pro-  could  distrain  on  the  property  of  a 
ceeding  does  not  abate  by  the  ten-  subtenant  remaining  on  the  prem- 
ant's    death,    the    statute    providing  ises  after  the  tenant's  death. 

that   it   shall   be   prosecuted    in  the  429  Dumes  v.  McLosky,  5  Ala.  239. 

same  manner  as  an  attachment  pro-  4so  Lillard  v.  Noble,  159  111.  311,  42 

ceeding.  N.  E.  844. 

427  Hughs'  Adm'r  v.  Sebre,  9  Ky.  (2  431  Anonymous,  Moore,  7;  Wallis  v. 
A.  K.  Marsh.)  227;  Hovey  v.  Smith,  Savin,  2  Lutw.  1532;  Anonymous, 
1  Barb.  (N.  Y.)  272;  Brown  v.  How-  Cro.  Eliz.  13;  Dawson  v.  Cropp,  1  C. 
en,  66  N.  .T.  La^,  25.  48  Atl.  1020.  B.  961. 

42SHoskins-   v.    Houston,    2    Clark       432  Bagge  v.  Mawby,  8  Elxch.  641, 


§  330  SUCCESSIVE  DISTRESSES.  2036 

as  to  tlie  value  of  the  goods,  and  the  landlord  fairly  supposed 
that  the  first  levy  v^as  on  sufficient  goods  to  satisfy  his  claim,  and 
afterwards  finds  them  insufficient,  he  may,  it  has  been  decided, 
distrain  for  the  balance,^^^  ^n^j  ^g  may,  it  seems,  justify  his 
second  distress  by  showing  that  there  were,  at  the  time  of  the 
first  distress,  insufficient  goods  on  which  he  could  have  dis- 
trained.434  There  is  a  case  to  the  effect  that  the  landlord  may 
include  in  a  second  distress,  made  for  rent  accruing  subsequently 
to  the  first  distress,  arrears  of  rent  which  he  might  have  in- 
cluded in  the  first  distress,  but  which  he  failed  to  include  there- 
in.«5 

There  may  be  a  second  distress  for  the  same  rent  if  the  person 
distraining  forbore  to  realize  the  first  distress  at  the  tenant's  re- 
quest.^36  y^ji(j  SQ  jf  a,  distress  is  withdrawn  under  an  arrange- 
ment with  the  tenant  for  the  payment  of  the  rent,  and  the  ar- 
rangement is  not  carried  out,  the  landlord  may  again  distrain.^^T 
The  landlord  may  also  distrain  again  if  he  is  prevented  by  the 
unlawful  act  of  the  tenant  from  realizing  on  the  first  distress, 
as  when  the  tenant  prevents  a  purchaser  at  the  sale  from  taking 
away  the  article  purehased.438  That  the  landlord  or  his  bailiff 
has  previously  undertaken  to  distrain,  but  in  such  a  way  as  to 
constitute  his  action  not  a  distress  but  a  trespass  ah  initio,  does 

Dawson  v.  Cropp,  1  C.  B.  961;  Smith  Ing  a  second  distress  under  similar 

V.  Goodwin,  4  Bam.  &  Adol.  413;  Har-  circumstances.       See  Delaware,  Rev. 

ris  V.  Wier,  2  N.  S.  Dec.  466;  Everett  Code  1893,  p.  871,  §  34;  Ifew  Jersey, 

Y.  Neff,  28  Md.  176.     Delaware  Rev.  1  Gen.  St.  p.  1212,   §   21;   West  Vir- 

Code  l'S93,  p.  872,  §  43,  provides  that  ginia,  Code  1906,  §  4189. 

a  distress  without  a  sale  shall   not  434  Quinn    v.    Wallace,    6    Whart. 

satisfy  the  rent  for  which  such  dis-  (Pa.)   452;  Dawson  v.  Cropp,  1  C.  B. 

tress  was  taken,  but  that  a  second  961. 

distress  shall  not  be  taken  for  said  435  Gambrell  v.  Falmouth,  4  Adol. 

rent.  &  E.  73. 

4S3Hutchins   v.  Chambers,  1  Bur-  436  Bagge  v.  Mawby,  8  Exch.  641; 

row,  589;   Bagge  v.  Mawby,  8  Exch.  Hutchins    v.    Chambers,    1    Burrow, 

641.     The  first  of  these  cases  is  cit-  589;    Owens  v.  Wynne,  4   El.    &  Bl. 

ed    in    Brooks    v.    Wilcox,    11    Grat.  579;  Harpelle  v.  Carroll,  27  Ont.  240. 

(Va.)  411,  in  favor  of  a  decision  that  437  Thwaltes  v.  Wilding,  12  Q.  B. 

an  officer  may  make  a  second   levy  Dlv.  4. 

under    the    distress    warrant    if    he  4.-!s  Lee  v.  Cooke,  2  Hurl.  &  N.  584, 

thinks   the   first   insufficient.     There  3  Hurl.  &  N.  203. 
are    occasionally    statutes    authoriz- 


2036  DISTRESS.  §  331 

not,  it  lias  been  decided,  preclude  the  landlord  from  subsequently 
distraining  for  the  same  rent.^^® 

There  is  no  objection,  it  appears,  to  a  second  distress  for  rent 
which  has  fallen  due  since  the  first  distress,  nor  to  a  levy  there- 
under on  the  same  goods  as  were  before  distrained.'* ^° 

§  331.    Amount  for  which  distress  allowable. 

It  has  in  England  and  in  one  state  been  decided  that  a  land- 
lord is  not  liable  in  damages  because  he  distrains  for  more  rent 
than  is  due,  that  is,  the  making  of  a  distress  is  not  actionable 
because  accompanied  by  a  pretense  that  more  is  due  than  is  real- 
ly due.^^^  And  this  has  been  decided  to  be  so  although  the 
excessive  claim  was  made  maliciously .^^^  These  decisions  neces- 
sarily involve  the  view  that  the  distress  is  not  invalid  because 
of  the  excessive  claim,'*^^  If,  however,  in  the  endeavor  to  satisfj' 
such  excessive  claim,  more  goods  are  seized  than  are  reasonably 
sufficient  to  satisfy  the  sum  actually  due,  the  landlord  is  liable  as 
in  any  other  ease  of  excessive  distress.^^'*  In  several  decisions 
in  this  country,  a  rule  different  from  that  above  stated  is  asserted, 
to  the  effect  that  a  distress  for  an  excessive  amount  is  action- 
able.4« 

In  a  few  jurisdictions  the  statute  allows  a  distress  for  such 
rent  only  as  has  fallen  due  within  a  specified  period  previous  to 
the  distress,^^^  and  in  one  it  is  provided  that  a  distress  shall  not, 
at  one  time,  be  made  for  more  than  one  year's  rent  in  arrear.^^''' 

439  Grunnell  v.  Welch  [1905]  2  K.  Crowder  v.  Self,  2  Moody  &  R.  190. 
B.  650.  See  post,  §  346  d  (7). 

440  Wilton  V.  Wiffen,  8  L.  J.  K.  B.  445  Harms  v.  Solem,  79  111.  460; 
(0.  S.)  303.  And  see  Hefford  v.  Al-  McElroy  v.  Dice,  17  Pa.  163;  Thomas 
ger,  1  Taunt.  218.  v.  Gibbons,  21  Pa.  Super.  Ct.  6is5;  Mc- 

441  Tancred  v.  Leyland,  16  Q.  B.  Kee  v.  Sims,  92  Tex.  51,  45  S.  W.  564. 
669;  Glynn  v.  Thomas,  11  Exch.  870;  The  distress  is  not  for  an  excessive 
Hamilton  v.  Windolf,  36  Md.  301,  11  amount  merely  because  the  landlord 
Am.  Rep.  491;  Bonaparte  v.  Thayer,  fails  to  deduct  claims  available  to 
95  Md.  548,  52  Atl.  496.  the  tenant  by  way  of  set-off.     Spen- 

442  Stevenson  v.  Newnham,  13  C.  cer  v.  Clinefelter,  101  Pa.  219.  See 
B.  285.  post,  at  note  450. 

443  See   Jean   v.   Spurrier,   35   Md.  446  See  post,  §  333  c. 

110,  6  Am.  Rep.  360.  4*7  New  Jersey,  1  Gen.  St.  p.  1209, 

444  Tancred   v.   Leyland,    16   Q.    B.    §    8. 
669;  Glynn  v.  Tliomas,  11  Excii.  870; 


e  332  SET-OFF  AND  CXDUNTERCLAIM.  2037 

The  landlord  has  no  right  to  distrain  for  interest  on  the  rent,**^ 
nor  for  an  attorney's  fee  stipulated  to  be  paid  in  case  a  proceeding 
to  enforce  payment  is  instituted>^' 

§  332.    Set-off  and  connterclaim. 

At  common  law  the  fact  that  the  tenant  has  a  valid  claim  or 
claims  against  the  landlord  does  not  affect  the  right  of  the  latter 
to  distrain  for  the  full  amount  of  rent  in  arrear.^^o  Occasionally 
in  this  country  the  courts  have  undertaken  to  distinguish  in  this 
connection,  as  in  actions  for  rent,^^!  between  a  right  of  "set-off," 
arising  from  a  distinct  claim,  and  a  right  of  "recoupment,"  aris- 
ing from  a  breach  by  the  landlord  of  a  covenant  of  the  lease,  and 
have  considered  that  the  tenant  is  entitled  to  assert  the  latter 
right  as  against  the  right  of  distress  in  an  action  growing  out 
of  the  distress .^^2 

Even  at  common  law  a  payment  by  the  tenant  of  ground  rent 
to  a  superior  landlord,  under  threat  of  distress,^^^  or  of  a  tax 
upon  the  land,454  could  be  asserted  by  him  as  a  payment  of  the 
rent  pro  tanto,'^^^  as  against  the  right  of  distress. 

Occasionally  the  statute  expressly  allows  the  tenant  to  assert 
a  set-off  in  connection  with  distress  proceedings.^^e  Iq  Illinois 
this  is  done  in  a  proceeding  instituted  by  the  filing  of  a  copy  of 
the  distress  warrant,^^^  and  the  landlord  may,  as  against  such 

448Dennison  v.  Lee,  6  Gill  &  J.  ols  v.  Dusenbury,  2  N.  Y.  (2  Comst.) 
(Md.)  383;  Lansing  v.  Rattoone,  6  283  (semble) ;  Guthman  v.  Castle- 
Johns.  (N.  Y.)  43;  Vechte  v.  Brown-  berry,  48  Ga.  172;  Jones  v.  Findley, 
ell,  8  Paige  (N.  Y.)  212;  Bantleon  v.  84  Ga.  52,  10  S.  E.  541;  Johnston  v. 
Smith,  2  Bin.  (Pa.)  146,  4  Am.  Dec.  Patterson,  86  Ga.  725,  13  S.  B.  17. 
430      '  453  See  Taylor  v.  Zamira,  6  Taunt. 

449  Jones  V.  Findley,  84  Ga.  52,  10    524;  Sapsford  v.  Fletcher,  4  Term  R. 
S.  E.  541;  Tanton  v.  Boomgaarden,  89    511. 
111.  App.  500.  '^^*  Denby  v.  Moore,  1  Barn.  &  Aid. 

450Willson  V.  Davenport,  5  Car.  &  123;  Stubbs  v.  Parsons,  3  Barn.  &  Aid. 
P.  531;  Laycock  v.  Tufnell,  2  Chit.  516;  Franklin  v.  Carter,  1  C.  B.  750; 
531;  Townrow  v.  Benson,  3  Madd.  Saunderson  v.  Hanson,  3  Car.  &  P. 
203;  McMahan  v.  Tyson,  23  Ga.  43  314. 
(semble) ;  Wolgamot  v.  Bruner,  4  45«  See  ante,  §  177  e. 
Har.  &  McH.  (Md.)  89.  See  Spencer  456  Illinois,  Hurd's  Rev.  St.  1905,  c. 
V.  Clinefelter,  101  Pa.  219.  80,  §  21.     See  Kellogg  v.  Boehme,  71 

461  See  ante,  §  296.  111.  App.  643. 

452Lindley  v.   Miller,   67  111.    244;        457  See  post,  at  note  636. 
Lynch  v.  Baldwin,  69  111.  210;  Nich- 


2038  DISTRESS.  §  333 

claim  of  set-off,  assert  other  demands  on  his  part  against  the  ten- 
ajit.458  Ij2  Florida  the  statute^^^  provides  that,  in  an  action 
commenced  by  the  filing  of  an  affidavit  for  distress,*^*^  the  defend- 
ant may  set  up  in  defense  any  claim  or  demand  which  might  be 
pleaded  by  way  of  set-off  or  recoupment  in  an  ordinary  action  at 
law. 

The  Pennsylvania  statute,^^^  which  applies  only  when  the 
claim  for  rent  is  below  one  hundred  dollars,  authorizes  ancillary 
proceedings  before  a  justice  of  the  peace  to  determine  the  amount 
of  set-oft'  to  be  allowed,  without  deciding  anything  as  to  the 
amount  of  rent  due,  the  landlord  then  distraining  for  the  differ- 
ence between  the  amount  adjudged  and  the  rent  claimed  by 
him,^*''2  Tiie  landlord  is,  it  has  been  decided,  under  no  obliga- 
tion to  deduct  from  his  claim  for  purposes  of  distress  a  claim 
for  unliquidated  damages  asserted  by  the  tenant  but  upon  which 
no  adjudication  is  obtained  from  the  justice  until  after  the  dis- 
tress."*^^ 

§  333.    Time  for  distress. 

a.  Usually  after  rent  due.  There  can  ordinarily  be  no  dis- 
tress for  rent  till  it  is  in  arrear,^^^  ^n^^  since  rent  is  not  in  arrear 
till  the  day  named  for  payment  has  elapsed,'^^^  distress  cannot 
be  made  till  the  day  after  the  rent  day.^^^     If  the  rent  is  payable 

458  Cox  V.  Jordan,  86  111.  560.  It  is  First  Nat  Bank  of  Joli«t  v.  Adam, 
immaterial  that  the  claim  asserted  138  111.  483,  28  N.  E.  955;  Myers  v. 
as  a  set-off  accrued  before  the  be-  Mayfield,  70  Ky.  (7  Bush)  212;  Myers 
ginning  of  the  rent  period  for  which  v.  Smith,  27  Md.  ?1;  Evans  v.  Her- 
distress  is  made.  Kellogg  v.  Boehme,  ring,  27  N.  J.  Law,  243;  Wells  v. 
71  111.  App.  643.  Hornish,  3  Pen.  &  W.  (Pa.)  30;  Fret- 

459  Florida  Gen.  St.  1906,  §  2247.  ton  v.  Karcher,  77  Pa.  423;  O'Farrell 

460  See  post,  §  344.  v.  Nance,  2  Hill  (S.  C.)   484;  Bailey 

461  Pepper  &  Lewis'  Dig.  I^aws,  v.  Wright,  3  McCord  (S.  C.)  484; 
"Land.  &  Ten."  §  14  (Act  March  Weir  v.  Brooks,  17  Tex.  638;  dinger 
20,  1810,  §  20).  V.  McChesney,  7  Leigh    (Va.)    660. 

462  See  Hilke  v.  Eisenbeis,  104  Pa.        465  See  ante,  §  172  h,  at  note  196. 
514;   Fowler  v.  Eddy,  110  Pa.  117,  1        466  Co.  Litt.  47  b.  Lord  Hale's  note, 
Atl.  789.  citing  Y.  B.  21  Hen.  6,  40;    2  Wms. 

463  Spencer  v.  Clinefelter,  101  Pa.  Saund.  284,  note  (2)  to  Poole  v. 
219.  Longuevill;  Dibble  v.  Bowater,  2  El. 

464  Dozier  t.  Robinson,  82  Ala.  408,  &  Bl.  564,  568;  Johnson  v.  Owens,  2 
3  So.  45;  .TamPS  v.  Reniamin,  72  Ga.  Cranch  C.  C.  160,  Fed.  Cns.  No.  7,402; 
185;    Harms   v.    Solem,   79    ill.    460;  Fry   v.   Breckinridge,   46   Ky.    (7   B. 


-  333  FOR  RENT  NOT  DUE,  2039 

in  advance,  the  landlord  may  distrain  for  it  at  the  commencement 
of  the  rent  period.'*^^^ 

A  provision  of  the  lease,  giving  a  right  to  distrain  for  rent 
after  a  default  in  payment  continued  for  a  time  named,  has  been 
decided  not  to  affect  the  landlord's  right,  existing  independently 
of  any  stipulation  of  the  lease,  to  distrain  immediately  upon  de- 
fault *^^  nor  is  such  right  of  immediate  distress  affected  by  a 
condition  for  re-entry  a  certain  period  after  default.*^^ 

b.  Statutory  distress  for  rent  not  due.  By  statute,  occasion- 
ally, the  landlord  is  entitled  to  distrain  in  case  the  tenant  removes 
his  goods  from  the  premises.-'^o  or  is  about  to  do  so,47i  although 
the  rent  is,  by  the  terms  of  the  lease,  not  yet  due,  the  effect  being 
to  make  the  rent,  to  the  extent  named  in  the  statute,  due  and  in 
arrear  for  the  purpose  of  distress.  In  one  state  a  statute  author- 
izing distress  when  the  tenant  is  about  to  remove  his  crops  is 
apparently  regarded  as  applicable  when  he  is  removing  them.^^^ 

When  the  statute  authorizes  a  distress  on  crops  for  rent  not  due 
in  case  of  their  removal  from  the  premises,  it  is  immaterial,  it 
has  been  decided,  that  the  tenant  informs  the  landlord  before- 

Mon.)     31;     Gano    v.    Hart,    Hardin  ject  to  lien) ;  Mississippi  Code  1906.  § 

(Ky.)    304';   Weiss  v.  Jahn.  37  N.  J.  2849    (on   removal   of   effects,    other 

Law   93.  ttian  agricultural  products,  on  which 

467  Gilbert,  Rents,  25;    Buckley  v.  there  is  a  lien).     In  South  Carolina 

Taylor,  2  Term  R.  600;   Harrison  v.  (Civ.  Code  1902,  §  2432)  the  landlord 

Barry,   7   Price,  690;    Lee  v.   Smith,  may  distrain  for  the  rent  due  up  to 

9  Exch.  661;  Atkin  v.  Byrnes,  71  111.  the  end  of  the  month  in  case  the  ten- 

326;    Weiss  v.  Jahn,   37  N.   J.  Law,  ant  should  "remove  from  the  demised 

93;   Russell  v.  Doty,  4  Cow.   (N.  Y.)  premises." 

576;     Conway     v.     Starkweather,     1  i^i  Oeorgia  Code  1895,  §  3124   (see 

Denio   (N.   Y.)    113;   Anderson's  Ap-  Rosenstein   v.   Forester,    57    Ga.  .94; 

peal,  3'  Pa.  218;    Collins'  Appeal,  35  Daniel  v.  Harris,  84  Ga.  479,  10  S.  E. 

Pa.     83;     WilM^ms    v.     Howard.     3  1013);  Illinois.  Hurd's  Rev.  St.  1905, 

Munf.    (Va.)    277.  c.   80,   §    34    (threatened   removal   of 

4«s  Hill  v.  Stocking.  6  Hill  (N.  Y.)  crops) ;  Mississippi  Code  1906,  §  2848; 

277;  Van  Rensselaer  v.  Jewett,  2  N.  Texas  Rev.  St.  1895,  §  3240. 

Y.  (2  Comst.)  141,  51  Am.  Dec.  275.  472  See  Tucker  v.  Hasson,  32  Tex. 

469  Smith  V.  Meanor,  10  Serg.  &  R.  536:  Holt  v.  Miller  (Tex.  Civ.  App.) 
(Pa.)  375,  and  see  cases  cited  in  next  32  S.  W.  823;  Riggs  v.  Gray,  31  Tex. 
preceding  note.  Civ.  App.  2G8,  72  S.  W.  101.       And 

470  Illinois.  Hurd's  Rev.  St.  1905,  c.  compare  the  Georgia  cases  above  re- 
80,   §§    33,   34    (on   abandonment   of    ferred  to, 

premises  or  on  removal  of  crops  sub- 


2040  DISTRESS.  §  334 

hand  of  his  intention  to  remove,^'^'  or  that  he  has  no  intention 
to  defraud  the  latter.^ '"^ 

A  statute  giving  a  right  to  distrain  on  crops  foi*  rent  not  due 
in  case  the  tenant  removes  a  portion  of  the  crops,  so  as  to  en- 
danger the  claim  for  rent,  has  been  construed  to  make  the  remedy 
availal3le  when  a  portion  is  fed  to  stock.^'''''  But  the  feeding  of 
produce  to  the  stock  employed  in  producing  the  crop,  to  a  reas- 
onable amount,  has  been  regarded  as  not  within  the  statute.^"^" 

A  statute  giving  a  right  of  distress  on  a  sale  or  removal  of  the 
crops  to  such  an  extent  as  to  endanger  the  landlord's  lien  has 
been  held  not  to  apply  in  the  ease  of  a  mortgage  of  the  crops,  un- 
accompanied by  removal.^"'^'' 

Apart  from  any  statutory  provision,  it  may  be  expressly  stipu- 
lated that  the  landlord  may  distrain  upon  the  removal  or  at- 
tempted removal  of  the  tenant's  goods.^'^^ 

e.  Statutory  limitation  period.  In  some  jurisdictions  there 
are  express  provisions  as  to  the  period  previous  to  the  distress 
for  which  arrears  of  rent  may  be  claimed,  that  is,  a  period  of 
limitation,  running  from  the  accrual  of  any  installment,  is  named, 
within  which  distress  for  that  installment  must  be  made.'*'^^  The 
general  statutes  of  limitation  are  not  applicable  to  this  proceed- 
ing 


4S0 


§  334.    Persons  entitled  to  distrain. 
a.    Persons  having  or  not  having  the  reversion.    At  common 

4T3Hare  v.  Stegall,  60  111.  380.  872,  §§  44,  45   (two  years,  unless  by 

474  Morgan   v.  Tims,  44  Tex.  Civ.  executor   or   administrator  or   otlier 

App.  308,  17  Tex.  Ct.  Rep.  Ill,  97  S.  person   having  no   estate,   and   then 

W.  832.  six   months) ;    Kentucky  St.   1903,   § 

4T5  Hopkins  v.  Wood,  79  III.  App.  320G    (six  months);    New  Jersey,   1 

484.  Gen.  St.  p.  1209,  §  8   (six  months) ; 

*T«  Riggs  V.  Gray,  31  Tex.  Civ.  App.  Virginia    Code    1904,    §    2790     (five 

268,  72  S.  W.  101.  years) ;    West  Virginia  Code  1906,  § 

4T7Hill  V.  Coats,  109  111.  App.  2G0.  3403    (one  year).       In  England  six 

478  See  IClein  v.  McFarland,  5  Pa.  years'  arrears  are  recoverable.       St. 

Super.    Ct.    110;     Dinner    v.    McAn-  3  &  4  Wm.  4,  c.  27,  §  1. 

drews,  10  Pa.  Dist.  R.  221.       In  the  48o  Braithwaite    v.    Cooksey,   1    H. 

case  first  cited   it  was  held  that  a  Bl.  465;  Longwell  v.  Ridinger,  1  Gill 

mere  intention  to   remove  was   not  (Md.)    57;    Vechte    v.    Brownell,    8 

an  "attempted  removal"  within  the  Paige  (N.  Y.)  212;  Blake  v.  Pe  Lies- 

meantng  of  the  stipulation.  selin-e,  4  McCord   (S.  C.)  496. 

'en  Delaware   Rev.    Code    1893,    p. 


§334 


BY  EXECUTOR  OR  ADMINISTRATOR.  2041 


law,  as  we  have  seen,'*8i  only  the  person  or  persons  having  the 
reversion  can  distrain,  and  the  result  of  this  rule  in  precluding 
a  distress  by  one  having  the  rent,  when  the  reversion  and  rent 
have  become  separated,  has  been  before  discussed.^ss  In  som- 
states  the  statute  authorizes  distress  by  the  person  entitled  to 
the  rent,483  the  effect  of  which  would  seem  to  be  to  enable  one 
who  has  a  rent  without  any  reversion  to  distrain. 

The  transferee  of  the  reversion,'* s*  including  the  heir*^-'^ 
or  devisee,486  may  distrain,  as  may  an  execution  purchaser,*^'^ 
or  one  to  whom  a  "concurrent"  lease  is  granted.^ss  Iq  one 
state,  however,  it  has  been  held  that  there  is  no  right  of  dis- 
tress in  the  transferee  of  the  reversion  until  the  tenant  lias 
attorned  to  him,  although  no  attornment  would  be  necessary  for 
the  purpose  of  an  action  for  the  rent.^^^ 

b.  Executors  and  administrators.  At  common  law,  the  ex- 
ecutors or  administrators  of  a  deceased  landlord  had  ordinarily 
no  right  to  distrain  for  arrears  of  rent  which  had  accrued  during 
the  life  of  their  decedent,  since  the  reversion  was  not  in  them  but 
in  the  heir,^^^  the  only  exception  being  that  of  a  tenant  for  years, 
who  underlet  and  then  died,  the  subreversion  then  passing  to 
his  personal  representative.^^!  By  St.  32  Hen.  8,  c.  37,  §  1,  the 
executors  and  administrators  of  tenants  in  fee,  fee  tail,  or  for 
term  of  life,  of  rent  services,  rent  charges,  rents  seek  and  fee  farm 
rents,  were  empowered  to  distrain,  but  this  statute,  applying  in 
terms  merely  to  rents  in  which  the  decedent  had  a  freehold  in- 
terest, has  been  held  not  to  authorize  a  distress  by  the  executor 
or  administrator  of  a  tenant  in  fee  of  land  who  demised  the 
land  for  years  reserving  a  rent,*^^  and  on  this  construction  it 
would  have  but  little  practical  efficacy  in  this  country,  even  in 

481  See  ante,  §  326  a.  ^so  Stewart  v.  Gregg,  42  S.  C.  392. 

482  See  ante,  §  326  d.  20  S.  E.  193. 

483  See  ante,  note  50.  «»  Co.  Litt.  62  a. 

484Litt.    §§   228,   2:29;    Hasldns   v.       491  Williams'  Executors   Oth  Ed.) 

Houston,  2  Clark  (Pa.)   277.  796,  citing  Wade  v.  Marshe,  1  Rolle. 

485  McGillick  V.  McAllister,  10  111.  Abr.,  672,  s.  c.  Latch,  211. 
App.    (10  Bradw.)   40.  492  prescott  v.  Boucher,  3  Barn.  Ik 

4sn  Lewis'  Appeal,  66  Pa.   312.  Adol.  849;  Jones  v.  Jones,  3  Barn.  & 

487  Baker     v.     Burton,     3     Houst.  Adol.  967.     But  the  decision  in  Long- 
(Del.)   10.  well    V.    Ridin,n:er,    1    Gill    (Md.)    57, 

488  See  ante,  at  note  55.  seems  to  involve  a  different  view. 


2042  DISTRESS.  §  334 

jurisdictions  where  it  might  be  recognized  as  in  foree.^^^  There 
are  in  some  states  statutes  expressly  giving  the  right  of  distress 
to  the  executors  or  administrators  of  a  deceased  landlord,  or 
giving  them  the  same  remedies  for  the  collection  of  rents  as  their 
decedent  had.^^^ 

In  most  jurisdictions  the  executor  or  administrator  of  one 
having  a  reversion  in  fee  has  no  right  to  distrain  for  rent  falling 
due  after  the  death  of  his  decedent,  since  such  rent  belongs  to 
the  heir  or  devisee  as  incident  to  the  reversion,*^^  and  he  is  the 
one  to  distrain.  And  even  an  executor  to  whom  a  power  to  sell 
or  to  lease  is  given  by  the  will  of  the  deceased  landlord  is  not, 
it  seems,  apart  from  statute,  entitled  to  distrain  for  rent  accruing 
in  his  own  time,  if  he  is  not  given  the  legal  title.^^^  In  some 
jurisdictions  the  executor  or  administrator  is  by  statute  given 
the  possession  and  control  of  the  real  property  for  purposes  of 
administrator,  ^^'^  and  there,  presumably,  he  would  have  the  right 
of  distress  for  rent  accruing  after  the  death  of  his  decedent.^^^ 

c.  Tenants  pur  autre  vie.  By  St.  32  Hen.  8,  c.  37,  §  4,  a 
person  having  a  rent  for  another's  life  is  enabled  to  distrain  for 
arrears  of  rent  which  became  due  during  the  life  of  the  cestui  que 

4»3  It    is    in    force    in    Maryland       496  it  is  so   decided   in  Nicholl  v. 

(Alexander's  Brilish  Statutes,  356),  Cotter,  5  U.  C.  Q.  B.  564.    But  in  Reid 

and  is  re-enacted  in  New  Jersey    (1  v.  Stoney,  1  Strob.  Law  (S.  C.)   182, 

Gen.  St.  p.  1212,  §  20).       In  South  it  is  asserted  that     an  executor,  al- 

Carolina  it   was    decided   not  to   bo  though  without  legal  title,  if  given 

in    force.       Bngwell    v.    Jamison,    1  power  to  manage  the  property,  make 

Cheves  (S.  C.)   249.  leases    and   receive    rents,    may    dis- 

ioi  Belaivare    Rev.    Code    1893,    p.  train.     The  fact  that  he  has  no  re- 

867    §  9,  p.   868   §  20;    Florida  Gen.  versionary   interest   is   not   referred 

St.    1906,    §    2240;    Mississippi   Code  to. 

1906,    §§   2838,   2852,   2879:    Virginia       497  See     2     Woerner,     Administra- 

Code    1904,    §    2788;    West    Virginia  tion,  §  337. 

Code  1906,  §  3401.  In  England  St.  49«  In  Carter  v.  Walters,  63  Ga. 
3  &  4  Wm.  4,  c.  42,  §§  37,  38,  author-  164,  it  is  stated  in  the  official  sylla- 
ize  the  executor  of  a  deceased  land-  bus  that  one  of  two  executors  may 
lord,  in  the  case  of  a  demise  for  sue  out  a  distress  warrant,  especial- 
years  or  at  will,  to  distrain  for  ar-  ly  if  the  "contract  of  renting"  was 
rears  of  rent  due  the  landlord  in  his  with  him  alone.  In  Dean  v.  Donal- 
lifetime.  son.  2  Ga.  App.  462,  58  S.  E.  679,  a 

495  See  Wright  v.  Williams,  5  Cow.  case   of   a   distress   by   an    executor, 

(N.  Y.)   338;    Sherman  v.  Dutch,  16  the  rent  was  due  under  a  lease  made 

111.  283;  Lewis'  Appeal.  66  Pa.  312.  by  the  latter. 


§  334  BY  MCtflTGAGOR  OR  MORTGAGEE.  2043 

vie,  and  were  unpaid  at  the  latter 's  death.  At  common  law 
there  was  no  right  of  distress  in  such  case,  the  tenant  pur  autre 
vie  having  no  reversion  after  the  death  of  the  cestui  que  vie. 
This  statute  is  in  force  in  at  least  one  state,^^^  and  has  been  sub- 
stantially re-enacted  in  two  others.^oo  It  does  not  seem  that 
one  having  an  estate  ptir  autre  vie,  who  makes  a  lease  for  years 
reserving  rent,  can  be  regarded  as  having  a  rent  for  another's 
life  within  the  statute. 

d.  Joint  ter.ants  and  tenants  in  common.  One  of  two  or 
more  joint  tenants  may  distrain  for  the  whole  rent,  without  any 
express  authority  from  the  other  or  others,  in  the  absence  at 
least  of  an  express  dissent  by  the  latter.  But  he  must  justify  the 
distress  in  his  own  right  and  as  the  bailiff  of  the  others.f^^i  ^ 
surviving  joint  tenant  may  distrain  for  rent  which  fell  due  be- 
fore the  death  of  his  cotenant.5<^2 

Tenants  in  common  are  entitiled  to  distrain  separately  for  their 
respective  shares  of  the  rent  reserved  upon  a  lease  granted  by 
all  of  them,503  or  they  may,  it  seems,  join  in  one  distress,  though 
they  must  avow  separately.^o^ 

If  one  tenant  in  common  leases  to  his  cotenant,  he  may  distrain 
for  the  rent  on  any  part  of  the  land.-""^^ 

e.  Mortgagors  and  mortgagees.     As  before  stated,^^^  upon  the 

*99  See    Alexander's    British    Stat-  in  this  respect  is  cured  by  the  statute 

utes  in  force  in  Maryland.  of  11  Geo.  2,  c.  19,  §  19,  which  was, 

500  Delaivare    Rev.    Code    1893,    p.  however,    intended    for    an    entirely 

867,  §   11,  and  New  Jersey   (1  Gen.  different  class  of  illegal  acts,  those 

St.  p.  1212,  §  20).  involved  in  the  proceedings  prelim- 

BoiPullen  V.  Palmer,  3  Salk.  207;  inary  to  sale.     See  post,  §  346  d  (8). 

Leigh  V.  Shepherd,  2  Brod.  &  B.  465;  In  Reid  y.   Stoney,  1   Strob.   Law 

Robinson  v.  Ilcfman,  4  Bing.  5rA.  (S.  C.)  182,  it  is  said  that  one  who  is 

502  2  Rolle,  Abr..  86;   Bradby,  Dis-  given  by  will  an  undivided  interest 

tresses,  39.  in  the  Ian*   the  property  not  to  be 

Of 3  Bradby,   Distresses,   41;    Harri-  divided    until    a    certain    time,    and 

son  v.  Barnby,  5TermR.  24;  Whitley  the   executor    to    manage    it    in    the 

V.  Roberts,  McClel.  &  Y.  107.  meanwhile,     cannot     distrain,     this 

504Bullen,   Distress    (2d   Ed.)    50;  power  being  exclusively  in  the  exec- 

Oldham  &  Foster,  Distress   (2d  Ed.)  utor.     See  ante,  note  396. 

50;    Pullen   v.   Palmer,   3   Salk.   207;  son  Snelgar   v.   Henston,    Cro.    Jac. 

Waring  v.  Slin.-rluff,  63  Md.  53.     In  611;    Brcnnan  v.   Flood,  4   Ir.  C.   L. 

Dutcher  v.  Culver,   24   Minn.   584,   it  322. 

is  said  that  tenants  in  common  must  soo  See  ante,  §  146  e,  at  note  29. 
distrain  severally,  but  that  an  error 


2044  DISTRESS.  §  334 

making  of  a  mortgage  by  a  reversioner,  transferring  the  legal 
title,  the  reversion  is  vested  in  the  mortgagee,  and  he  has  the 
right  to  distrain  for  rent  due  by  the  tenant  under  the  lease.^o'^ 
It  has  been  held,  however,  that  the  mortgagor,  in  such  case,  if 
allowed  by  the  mortgagee  to  continue  in  receipt  of  the  rent,  may 
distrain,  on  the  theory,  apparently,  that  he  is  to  be  regarded  as 
receiving  the  rent  and  making  the  distress  as  the  bailiff  of  the 
mortgagee.^"^ 

•  In  the  case  of  a  lease  by  a  mortgagor,  made  after  the  mortgage, 
even  though  the  legal  title  is  in  the  mortgagee,  the  mortgagor  has 
a  right  to  distrain,  it  has  been  decided,  on  the  theory  that  the 
tenant  is  estopped  to  deny  his  title.^^^  The  mortgagee  has  no 
right  to  distrain  for  rent  accruing  under  such  a  lease,  since  he 
has  not  the  reversion  thereon,5io  but  if  the  tenant  consents  to 
hold  under  him,  paying  him  rent,  a  new  tenancy  is  created,  it 
seems,  under  which  he  may  distrain. 

f.  Receivers.  It  has  in  England  been  decided  that  a  receiver 
may  distrain  for  rent  without  first  obtaining  an  order  of  court 
for  the  purpose.^ii  But  if  there  is  a  doubt  as  to  the  person  en- 
titled to  the  rent,  the  receiver  should  apply  for  an  order,  since 
he  must  distrain  in  the  name  of  the  person  so  entitled,^^^  unless 
the  tenant  has  attorned  to  the  receiver  and  so  created  a  tenancy 
as  between  them,^!^  jn  which  case  the  receiver  should  distrain 
in  his  own  name.^^* 

g.  Agents.  At  common  law  the  distress  could  be  made  by  the 
landlord  by  the  hands  of  his  authorized  agent  or  bailiff,  and 
this  may  still  be  done  in  some  jurisdictions.  The  question  of  the 
right  to  employ  such  an  agent  to  seize  and  sell  the  property,  and 

507  Moss  V.  Gallimore,  1  Doug.  279;  Johns.  (N.  Y.)  289;  Souders  v.  Van 
Rogers  v.  Humphreys,  4  Adol.  &  E.  Sickle,  8  N.  J.  Law  (3  Halst.)  313. 
299;   Souders  v.  Van  Sickle,  8  N.  J.    See  ante,  §  73  a  (1). 

Law  (3  Halst.)  313.  5ii  pitt   v.    Snowden,    3   Atk.    750; 

508  Trent  v.  Hunt,  9  Exch.  14;  Dancer  v.  Hastings,  4  Bing.  2;  Ben- 
Reece  v.  Strousberg,  54  Law  T.   (N.    nett  v.  Robins,  5  Car.  &  P.  379. 

S.)  133;  Snell  v.  Pinch,  13  C.  B.  (N.  512 Hughes  v.  Hughes,  3  Bro.  C.  C. 

S.)    65l!  87,  1  Ves.  Jr.  161. 

509  Alchorne  v.  Gomme,  2  Bing.  sis  Evans  v.  Mathias,  7  El.  &  Bl. 
54.       See  ante,  §  78.  5S0;    White   v.    Smale,   22   Beav.   72. 

510  Evans  v.  Elliot,  9  Adol.  &  E.  51*  Jolly  v.  Arbuthnot,  4  De  Gex 
342;   Rogers  v.  Humphreys,  4  Adol.  &  J.  224. 

&  B.  299;    McKircber  v.  Hav/ley,  16 


335 


PREVIOUS  DEMAND  FOR  RENT.  2045 


the  proper  mode  of  conferring  authority  on  him  for  this  purpose, 
as  well  as  the  various  statutory  requirements  in  regard  to  the 
persons  who  may  make  the  seizure  in  behalf  of  the  landlord,  are 
elsewhere  considered,  as  pertaining  to  the  mode  of  proceeding.^is 
Apart  from  those  questions,  a  question  might  arise  as  to  tha 
power  of  an  agent  to  make  the  preliminary  affidavit,  necessary 
in  some  states  for  the  issuance  of  a  warrant,  and  this  is  ordi- 
narily settled  by  an  express  provision  of  the  statute  that  such 
preliminary  affidavit  or  application  may  be  made  by  either  the 
landlord  or  his  agent.^^^  But  the  aflklavit  should,  in  such  case, 
it  has  been  held,  aver  that  the  indebtedness  is  to  the  principal, 
and  the  warrant  must  issue  in  the  latter 's  name.^^'^ 

The  question  whether  at  common  law  an  agent  of  the  landlord 
could  himself  qualify  another  to  make  the  distress  seems  not  to 
have  been  discussed  in  any  English  case,  presumably  because, 
even  though  one  made  a  distress  on  behalf  of  the  landlord  with- 
out any  previous  authority,  his  acts  in  so  doing  could  be  ratified 
by  the  latter.^is  n  jj^s  occasionally  been  decided  in  this  country 
that  an  agent  of  the  landlord  may  sign  a  distress  warrant  in  his 
own  name,  authorizing  another  to  distrain.^^^ 

§  335.    Preliminaries  to  levy. 

a.  Demand  for  rent.  A  demand  for  rent  is  not  ordinarily 
necessary  in  order  to  render  it  due  and  payable,^^'^  and  a  distress 
may  usually  be  made  without  a  previous  demand.^^i     Under  some 

615  See  post,  §  336.  Giles  v.  Ebsworth,  10  Md.  333;  Bige- 

^le  Florida  Gen.   St.  1906,  §  2240;  low  v.  Judson,  19  Wend.  (N.  Y.)  229. 

Georgia  Code  1895,  §  4818;   IlUn'^is,  620  See  ante,  §  296. 

Kurd's  Rev.  St.  1905,  p.  80,  §  16;  Ken-  521  Bac.  Abr.,  Rent     (I) ;    Horn  v. 

tucky    St.  1903,   §   2301;   Mississippi  Lewin,    2   Salk.    583;    Gillingliam   v. 

Code   1906,   §   2839;    Texas  Rev.   St.  Gwyer,  16  Law  T.  (N.  S.)  640;  Buff- 

1895,  art.  3241;  Virginia  Code  1904,  §  ington  v.  Hilley,  55  Ga.  655;  McCray 

2790;    West    Virginia   Code   1906,    §  v.    Samuel,    65    Ga.    739;    Henley   v. 

3403.'  Brockman,    124    Ga.    1059.    53    S.    E. 

517  Maxwell  v.  Collier,  115  Ga.  304,  672;  Offutt  v.  Trail,  4  Har.  &  J.  (Md.) 

41  S.  E.  620;  Stephens  v.  Hooks,  122  20;  Royer  v.  Ake,  3  Pen.  &  W.  (Pa.) 

Ga.  423,  50  S.  E.  119.     See  Parker  v.  461;  Weber  v.  Vernon,  2  Pen.  (Del.) 

Stovall,  31  Miss.  446,  applying  a  stat-  359,  45  Atl.  537;  Keeley  Brew.  Co.  v. 

ute  to  that  effect.  Mason,  102  111.  App.  381.       Compare 

618  See  post,  at  note  479.  Lathrop  &  Co.  v.  Clewis,  63  Ga.  282. 

619  Jean  v.  Spurrier,   35  Md.  110; 


2046  DISTRESS.  §  335 

circumstances,  however,  a  demand  is  necessary,  and  such,  it  is 
said,  is  the  case  when  the  rent  is  payable  at  a  place  off  the  prem- 
ises, and  the  lease  expressly  gives  a  right  of  distress  after  a 
previous  demand  at  such  place,^-^  or  when  the  particular  form  of 
a  rent  reserved  in  kind  is  made  dependent  upon  the  expressed 
desires  of  the  landlord.^^s  go  a  demand  is  necessary  when  the 
landlord  is  by  the  lease  given  a  right  to  demand  an  increased 
rent  in  a  certain  contingency ,^24  or  the  rent  is  payable  quarterly, 
"or  half  quarterly  if  required. "^^5  jf  ^^g  j.gjj^  jg  expressly  made 
payable  in  advance  "if  required,"  the  landlord  can  distrain  only 
for  such  rent  as  he  may  have  demanded.^^s  Such  a  clause  has 
been  construed  as  making  the  rent  due  and  payable  in  advance, 
but  as  precluding  a  resort  to  a  distress  or  other  remedy  for  its 
collection  until  after  a  demand,  and  as  consequently  allowing 
a  demand  for  the  purpose  of  distress  either  upon  the  first  day  of 
the  rent  period  or  on  a  subsequent  day,^^?  ^j^^^  ^^^  allowing  a  dis- 
traint immediately  on  demand,  if  the  landlord's  rights  are  in 
peril.528 

b.  AfSdavit.  There  are  in  several  states  provisions  for  the 
filing  of  an  affidavit  by  the  landlord,  or  on  his  behalf,^"^  as  a 
prerequisite  to  the  issuance  by  a  justice  of  the  statutory  warrant 
authorizing  the  distress.^^o     j^  one  state  such  an  affidavit  is  re- 

•122  Bac.  Abr.,  Rent  (I).     See  Rem-  payable   in   money,   cotton  or   other 

sen   V.    Conklin,   18    Johns.    (N.    Y.)  agricultural      product      or      thing); 

447.  Georgia  Code  1895,  §  4818   (may  ob- 

R23  Helser  v.  Pott,  3  Pa.  179.  tain    distress    warrant    from    justice 

B24  Mallam  v.   Arden,   10   Bing.   at  on  oath   in   writing) ;    Kentucky  St. 

p.  300,  per  Alderson,  J.  1903,   §   2301    (affidavit  showing  the 

525  Mallam  v.  Arden,  10  Bing.  299.  amount  of  rent  due  and  in  arrear) ; 

526  Clarke  v.  Holford,  2  Car.  &  K.  Mississippi  Code  1908,  §  2839  (com- 
540.  plaint  on  oath  before  justice,  aver- 

527  Witty  V.  Williams,  12  "Wiily.  ring  facts  entitling  to  remedj-,  and 
Rep.  755;  10  Law  T.  (N.  S.)  457;  if  on  account  of  supplies,  itemized 
London  &  Westminster  Loan  &  Dis-  bill  of  particulars) ;  Texas  Rev.  St. 
count  Co.  V.  London  &  N.  W.  R.  Co.  1895,  art.  3242  (justice  to  issue  war- 
[1893]   2  Q.  B.  49.  rant  on   the  filing   of  an   oath   and 

528  London  &  Westminster  Loan  &  bond);  Virginia  Code  1904,  §  2790 
Discount  Co.  v.  London  &  N.  W.  R.  (affidavit  that  amount  specified  is, 
Co.  [1893]  2  Q.  B.  49.  he  verily   believes,  due  to  claimant 

529  See  ante,  note  416.  for   rent    reserved    upon    contract)  ; 
^^  Florida   Gen.    St.    1906,    §    2240    Wrsf  YM-firtnio  Code  1906,  §  3403  (dit- 

(affidavit  stating  amount  of  rent  or   t^). 
advances  due,  and  whether  they  are 


§  335  AFFIDAVIT.  2047 

quired  as  a  prerequisite  to  a  levy  by  the  landlord's  bailiff. ^^^ 
The  affidavit  must  ordinarily  show  that  rent  is  due,  or  that 
other  circumstances  exist  which,  under  the  statute,  justify  a  dis- 
tress.5^2  n  }jag  been  held,  however,  that  a  statute  requiring  it 
to  be  shown  oy  affidavit  that  the  demand  is  for  rent  does  not 
absolutely  require  that  the  justification  for  the  distress  appear 
in  the  affidavit.^33  ^  statement  that  the  tenant  is  "indebted" 
for  rent  is  equivalent,  it  has  been  held,  to  a  statement  that  rent 
is  due.534  If  ti^g  affidavit  shows  that  the  claim  is  due,  it  need  not 
state  the  time  at  which  it  became  due,  unless  the  statute  so  re- 
quires.^35  jf  ^^q  affidavit  is  sufficient  to  support  a  distress  as  for 
rent  due,  allegations  as  to  the  removal  of  property,  necessary  to 
support  a  distress  before  rent  is  due,  may  be  regarded  as  surplus- 
age.^^^^ 

A  requirement  that  the  affidavit  shall  state  that  it  is  not  for 
the  purpose  of  "vexing  or  harassing"  has  been  held  to  be  satis- 
fied by  a  statement  that  it  is  not  for  the  purpose  of  injuring  or 
harassing.^37 

Occasionally  the  statute  contains  a  specific  requirement  that 
the  amount  of  the  indebtedness  be  stated,^38  a^^j  ^^e  same  effect 

531  Maryland  Code  Pub.  Gen.  Laws  The  New  York  statute  formerly  in 

1904,  art  53,  §  8   (oath  before  justice  force    required    that    the    "time    for 

that  tenant  is  justly  and  bona  fide  which"   the  rent  accrued  be  stated, 

indebted   in  sum  named,  if  rent  is  and  this  involved  the  necessity  of  a 

payable    in    money,    or    that    he    is  showing  as  to  the  commencement  as 

justly  and  bona  fide  entitled  to  quan-  v,-ell  as  the  end  of  the  rent  period, 

tity  or  proportion  of  produce  claim-  Smith  v.  Fyler,  2  Hill   (in.  Y.)    648; 

ed)-  Marquissee    v.    Ormston,    15    V/end. 

B32  See  Scott  V.  Russell,  72  Ga.  35.  (N.    Y.)    368;    Jenkins    v.    Pell,    17 

533  Weir  V.  Brooks,  17  Tex.  638.  Wend.  (N.  Y.)  417,  20  Wend.  (N. 
But   If   the   affidavit  does   state  the  Y.)  450. 

grounds  for  the   distress,  it  cannot  ^se  Wright  v.  Hawkins,  68  Ga.  828; 

be    assumed    that    another     ground  Hollingsworth  v.  Willis,  64  Miss.  152, 

was  relied  on.     Jackson  v.  Corley,  30  8   So.   170;    Murray  v.  Blanchard,   2 

Tex.  Civ.  App.  417,  70  S.  W.  570.  Willson,  Civ.  Cas.  Ct.  App.   (Tex.)   § 

534  Wright  V.  Hawkins,  68  Ga.  828;  479. 

Hollingsworth    v.    Willis,    64    Miss.  nsr  Biesenbach  v.  Key,  63  Tex.  79. 

152,  8   So.  170    (statement  that  ten-  sss  FZorida  Gen.   St.    1906,  §  2240: 

ant    "indebted    for    rent    in    arrear"  Maryland,  Code  Pub.  Gen.  Laws  1904, 

shows  that  rent  is  "due  and  in  ar-  art.   53,   §  8;    Virpinia  Code   1904,   § 

rear");    Fulcher  v.  West   (Tex.  Civ.  2790;    West    Virginia    Code    1906,    § 

App.)   51  S.  W.  342.  3403. 
osB  Driver  v.  Maxwell,   56   Ga.   11. 


2048  DISTRESS.  §  335 

has  been  given  to  a  requirement  that  the  affidavit  state  that  the 
amount  claimed  is  for  rent  and  advances,539  ^s  well  as  to  a  pro- 
vision that  a  warrant  shall  issue  for  the  amount  claimed  by  the 
affidavit  to  be  due.^^*>  Under  the  latter  statute  it  has  been  de- 
cided that  if  the  rent  is  payable  in  specific  articles  of  fluctuating 
value,  it  is  sufficient  to  aver  the  supposed  value  of  such  articles.^^i 

The  affidavit,  it  has  been  held,  need  not  describe  the  premises 
in  reference  to  which  the  tenancy  exists.^^^ 

If  the  affidavit  is  required  to  be  made  before  a  justice  of  the 
peace  of  the  connty  in  which  the  premises  are  located,  the  name 
of  such  county  must  be  correctly  stated.^^s  "When  the  statute 
authorizes  the  grant,  upon  affidavit,  of  a  distress  warrant,  by  a 
justice  within  the  county  where  the  debtor  resides  or  his  prop- 
erty may  be  found,  either  the  affidavit  or  the  warrant  must  show 
such  jurisdictional  fact,  and  a  description  of  the  premises  as 
being  in  that  county  is  not  sufficient.^^^ 

"When  the  statute  provides  for  an  affidavit  by  the  landlord  or 
person  to  whom  rent  is  due,  an  agent  cannot  make  it.^^^  Ordi- 
narily, however,  the  statute  provides  that  the  affidavit  may  be 
made  by  an  agent  or  attorney.^'*^  The  affidavit  should,  it  seems, 
show  that  the  person  making  it  is  the  agent  or  attorney  of  the 
landlord  or  person  entitled  to  distrain,^^^  and  should  not  be  made 
on  information  or  belief  merely.^^^  One  of  two  administrators 
may,  it  has  been  held,  make  the  affidavit  on  behalf  of  both.^'*^  If 
the  affidavit  is  made  by  an  assignee  of  the  lien  for  rent,  by  rea- 

5S9  Jones  V.  Walker,  44  Tex.  200.  bis  Pate  v.  Shannon,  69  Miss.  372, 

S40  Cornwell  v.  Leverette,  127  Ga.  13  So.  729. 

163,  56  S.  E.  300;  Fountain  v.  White-  544  Cohen  v.   Candler,   88  Ga.   207, 

head,  119  Ga.  241,  46  S.  E.  104.     An  14  g.  g.  193. 

affidavit  of  indebtedness  in  a  certain  545  Howard  v.  Dill  &  Co.,  7  Ga.  52 ; 

sum    for   rent   is   supported   by   evi-  j^jtchell  v.  Franklin.  26  Ky.  (3  J.  J. 

dence  that  cotton  worth  that  sum  is  -^^^.^y^  n   ^n,j 


due  as  rent.     Renew  v.  Redding,  56 


546  See  ante,  note  416. 


^^-  ^^^-  ^  ^^    „  K47  Bryan  v.  Teal,  115  Ga.  740,  42 

541  Dawson   v.    Pennaman,    65   Ga. 

698 

5«  Scruggs  V.  Gibson,  40  Ga.  511.  '''  Drake  v.   Dawson,   66  Ga.  174. 

It  is   there   suggested   that  perhaps  See  Bussing  v.  Bushnell,  6  Hill  (N. 

this  should  be  done  if  the  affidavit  is  Y.)    382. 

based  on  the  removal  of  the  tenant's  "o  Scruggs  v.  Gibson,  40  Ga.  511. 
goods. 


335 


WARRANT.  2049 


son  of  a  statute  giving  such  assignee  a  right  to  distrain,  it  must, 
it  has  been  held,  set  forth  the  lease  and  the  assignment.^^o 

In  one  state  at  least  the  statute  as  to  amendments  authorizes 
amendments  of  the  affidavit  to  the  same  extent  as  in  the  case  of 
a  complaint  in  a  civil  action,^^!  and  in  one  a  change  in  the  Chris- 
tian name  of  the  tenant  was  allowed  apparently  without  ref- 
erence to  any  statute.^^^  Elsewhere,  however,  it  was  decided 
that,  since  a  distress  was  not  a  judicial  proceeding,  it  not  being 
returnable  to  any  court  in  a  pending  suit,  and  since  the  making 
of  the  affidavit  was  a  condition  precedent  to  a  valid  levy,  the 
court  could  not,  upon  a  subsequent  issue  as  to  the  validity  of 
the  levy,  allow  an  amendment  of  the  affidavit.^^^ 

c.  Bond.  There  are  in  two  states  statutory  provisions  re- 
quiring the  landlord,  before  distraining,  to  enter  into  a  bond  con- 
ditioned to  pay  such  damages  as  may  be  sustained  by  the  tenant 
by  reason  of  the  wrongful  "suing  out"  of  the  distress.554  A 
statute  requiring  a  bond  to  pay  damages  sustained  in  case  the 
warrant  is  "illegally  and  unjustly  sued  out"  has  been  held  not 
to  be  satisfied  by  a  bond  conditioned  to  pay  damages. in  case  the 
warrant  is  "illegally  sued  out."^^^  Such  a  statute  was  construed 
to  cover  a  case  in  which  the  distress  was  for  an  amount  in  excess 
of  that  actually  due.^^^ 

It  has  been  decided  that  the  claim  on  the  bond  may  be  asserted 
by  "reconvention."^^''' 

d.  Warrant.  At  common  law  a  distress  warrant  is  merely  an 
authority  given  by  the  landlord  to  another  to  act  as  his  bailiff 
in  making  the  distress,  and,  the  purpose  thereof  is  merely  to  pro- 
tect the  bailiff,  the  absence  of  authority  in  writing  not  affecting 

550  Lathrop  &  Co.  v.  Clewis,  63  Ga.        553  pate  v.  Shannon,  69  Miss.  372, 


282. 


13  So.  729. 


551  Georgia  Code  1895.  §  5122.     See        ^^*  Mississippi  Code  1906,   §   2839; 

^        ,,      .        00  no    xno    Q  C5     Texas  Rev.  St.  1895,  art.  3241.     The 
Bryant  v.  Mercier,  82  Ga.  409,  9  b.  \        ..       ,.     ^  x 

fnrmor    cratnTo    rpnmrpQ    rnp    nnnn    tn 


E.  166;  Reese  v.  Walker,  89  Ga.  72. 
14  S.  E.  888;  Freeny  v.  Hall,  93  Ga 


former  statute  requires  tne  bond  to 

cover  costs,  while  the  latter  does  not 

(see   Kelley  v.   King,   18   Tex.    Civ. 
706,  21  S.  E.  163;  Westbrook  v.  Har-   ^^^    ^^^    ^^  g   ^   g^^^ 

rison,  99  Ga.  660,  26  S.  E.  68;   Col-  555  Rigc^ins  v.  Ford,  1  Willson,  Civ. 

iins  V.  Taylor,  128  Ga.  789,  53  S.  E.  f.^^   ^^   ^pp    (^ex.)  §  1286. 

446.  556McKee  v.  Sims,  92  Tex.  51,  45 

552  Jackson  v.  Corley,  30  Tex.  Civ.  S.  W.   564. 

App.  417,  70  S.  W.  570.  ost  Slay  v.  Milton,  64  Tex.  421. 

L.  and  Ten.  129. 


2050  DISTRESS.  §  335 

the  validity  of  the  distress.  In  several  of  the  states,  however,  a 
warrant  to  distrain  is,  by  force  of  statute,  an  integral  part  of 
the  distress  proceeding.  In  two  of  these  states  a  warrant  by  the 
landlord  to  a  bailiff  seems  to  be  required  as  a  prerequisite  to  a 
valid  distress,  the  effect  being  to  preclude  a  levy  by  the  landlord 
himself  ;^^s  while  in  the  otliers  the  levy  can  be  made  only  under 
a  warrant  issued  by  a  justice  upon  the  affidavit  of  the  landlord  or 
his  agent. ^^^ 

The  distress,  it  has  been  held,  cannot  be  sustained  unless  the 
warrant,  or  the  affidavit  on  which  it  was  issued,  shows  that  the 
tenant  resides,  or  has  property,  in  the  county  of  the  justice  who 
issued  it,  the  justice  having,  under  the  statute,  jurisdiction  to 
issue  the  warrant  in  such  case  only.^so  The  warrant  need  not 
set  out  the  ground  of  its  issue,  it  has  been  decided  in  the  same 
state,  if  this  appears  from  the  affidavit.'^^^ 

Where  the  property  on  the  premises  is  alone  subject  to  dis- 
tress, a  warrant  issued  by  a  justice  should,  it  would  seem,  show 
the  location  of  the  premises,  though  perhaps  the  same  particular- 
ity of  description  as  in  the  case  of  a  conveyance  is  unneeessary.^®^ 
If  all  the  property  of  the  tenant,  although  not  on  the  premises, 
is  subject  under  the  statute,  there  is,  apparently,  no  necessity  of 
naming  the  premises  in  the  Avarrant.^*^^  That  the  warrant  directs 
a  levy  on  the  property  of  the  subtenant  found  in  the  county,  al- 
though the  statute  authorizes  a  levy  only  on  such  of  his  property 
as  may  be  on  the  premises,  has  been  held  to  be  immaterial,  if  the 
levy  is  made  only  on  the  latter. ^^■^ 

The  warrant  should  state  the  amount  of  the  landlord's  claim, 
since  otherwise  the  bailiff  or  officer  making  the  levy  will  not 

558  In   Illinois  this  seems  to  be  a  S.  E.  193.     But  Asbell  v.  Tipton,  40 

result    of   the    requirement    (Hura  s  Ky   (IB.  Mon.)   300,  seems  to  be  to 

Rev.  St.  1905,  c.  80,  §  17)  that  a  copy  the  effect  that  his  jurisdiction  will 

of    "the    distress    warrant"    be    filed  be   presumed,   the    contrary   not   ap- 

with  a  justice  of  the  peace.  In  Mary-  pearing. 

land  the  statute  was  so  construed  in  bgi  Callaway  v.  Phillips,  95  Ga.  801, 

Giles  V.  Ebsworth,  10  Md.  io3.  22  S.  E.  704. 

5'oo  Florida  Gen.   St.  1906,  §   2241;  562  See   Central    Land    Co.    v.    Cal- 

Ueorcjin  Code  1895,  §  4818,  Mississippi  houn,  16  W.  Va.  361. 

Code    1906,    §   2841;    Texas  Rev.    St.  ses  Alwood  v.  Mansfield.  33  111.  452. 

1895,  art.  3242;  yirgima  Code  1904,  §  564  Hutsell     v.     Deposit    Bank    of 

2790:  WrstVirp^vinCo(\o^90P..^?^iO^.  Paris,  102  Ky.  410,  43  S.  W.  469,  39 

560  Cohen  v.  Candler,  88  Ga.  207,  14  L.  R.  A.  403. 


<;  335  WARRANT.  2051 

know  the  amount  of  property  to  be  disti'ained.'^^''  It  need  not 
state  the  rent  period  for  which  the  claim  is  made.^^^  In  one 
state  the  statute  provides  that  an  account  showing  the  amount 
of  rent  accrued,  with  any  credits  thereon,  sliall  be  annexed  to 
the  warrant.^^''^ 

There  is  a  decision  to  the  effect  that  where  rent  is  payable  in 
an  article  of  produce  of  fluctuating  value,  it  is  sufficient  to  state 
in  the  warrant  the  amount  of  such  article  due,  and  that  it  is 
supposed  to  be  of  a  particular  value.^^s 

When  the  statute  allows  the  amendment  of  the  affidavit  by  leave 
of  court,  in  order  to  uphold  the  distress,  the  warrant  may,  it 
has  been  held,  be  amended  so  as  to  conform  thereto.^^g  in  one 
state,  where  the  statute  provides  that  the  warrant,  after  levy, 
being  filed  in  court,  shall  stand  as  a  declaration,  it  is  also  pro- 
vided that  it  shall  be  amendable  as  other  declarations  provided 
that  no  such  amendment  shall  in  any  way  affect  any  liabilities  ac- 
crued in  the  execution  of  the  warrant.^'^*^ 

It  has  in  one  state  been  decided  that  a  distress  warrant  is  a 
writ  within  a  constitutional  provision  requiring  writs  to  run  in 
the  name  of  the  state  ;5'^i  while  in  another  it  is  said  that  such  a 
warrant  "should  run  in  the  name  of"  the  landlord.^'^2 

B65  In  Craig  v.  Merime,  16  111.  App.  ant  acquiesced  in  the  taking  of  such 

(16  Bradw.)  214,  it  was  decided  that  share,  the  landlord  could  not  there- 

a  warrant  which  in  terms  authori-^-  after  change  the  warrant  and  claim 

ed  distraint  for  the  "amount  of  $150  the    value    of    the    rent    in    money, 

damages  due  me  for  the  nonperform-  Agney    v.    Strohecker,    21    111.    App. 

ance  of  the  conditions  of  the  lease"  G25.     Florida  Gen.   St.  1906,  §   2241, 

was  sufficient,  it  appearing  that  there  provides     that     the     warrant     shall 

was  that  sum  due  for  arrears  of  rent,  command    the   officer   to   collect    the 

566  Mitchell  V.  Franklin,  26  Ky.  (3  amount  claimed  in  the  affidavit,  "or 
J.  J.  Marsh.)   477.  the   value   thereof." 

567  Maryland,  Code  Pub.  Gen.  Laws  sso  Westbrook  v.  HarriSDn.  99  Ga. 
1904,  art.  53.  §  9.  See  Cross  v.  660,  26  S.  E.  68;  Jones  v.  Eubanks, 
Tome.     14    Md.     247.     The    account  86  Ga.  616,  12  S.  E.  1065. 

must     name     a    debtor.     Joynes     v.  sto  Illinois,   Kurd's   Rey.   St.   1905, 

Wartman,  5  Md.  195.     Compare  Bur-  c.  80,  §  20. 

nett  v.  Bealmear,  79  Md.  36,  28  Atl.  sti  Beach  v.  O'Riley,  14  W.  Va.  55. 

ggg  572  Maxwell  v.  Collier,  115  Ga.  304, 

668  Tucker  v.  Cox.  65  Ga.  700.     In  41  S.  E.  620.     Hore  the  question  was 

Illinois  it  was  decided  that  though  whether  the  warrant  could  "run  in 

the    warrant    was    irregular    in    di-  the  name  of"  the  a-rent  of  the  land- 

recting  the  sheriff  to  take  the  agreed  lord  who  applied  for  the  warrant 
share  of  the  grain,  yet,  if  the  ten- 


2052  DISTRESS.  §  336 

The  issuance  of  the  warrant  by  a  justice  of  the  peace  is  pre- 
sumably, in  all  the  states  in  which  it  is  required,  a  merely  minis- 
terial duty  on  his  part.  He  has  no  power  to  determine  whether 
any  rent  is  due,^^^  ^nd  has  no  discretion  as  to  issuing  the  warrant 
It  has  been  decided  that  this  duty  is  so  purely  ministerial  that 
his  near  relationship  to  the  landlord  does  not  preclude  his  per- 
formance thereof.^'''^ 

In  some  states  the  statute  requires  the  warrant  to  be  made  re- 
turnable to  the  justice  or  to  a  court.^"^^  In  the  absence  of  such 
a  statutory  requirement,  a  distress  warrant  is  not  to  be  regarded 
as  judicial  process  to  be  made  returnable  to  some  court  or  judi- 
cial oflficer.s'^s 

§  336.    Person  to  make  levy. 

At  common  law,  the  levy  of  the  distress  may  be  made  by  the 
landlord  himself,  or  by  his  bailiff. 

One  employed  as  bailiff  for  this  purpose  should  be  authorized 
to  act  by  a  "warrant"  signed  by  the  landlord,  or,  it  seems,  the 
landlord's  agent,^'^'^  but  written  authority  is  not  essential  to  the 
validity  of  the  distress.^'^s  The  landlord  may  ratify  a  distress 
made  in  his  name  without  any  precedent  authority .^'^^  And  a 
distress  made  after  the  death  of  the  landlord,  but  by  his  direction, 
may,  it  has  been  held,  be  adopted  by  the  executor,  the  latter 
having  by  statute  the  right  to  distrain.^so 

573  Commonwealth  v.  Colgan,  44  (Del.)  28;  Bigelow  v.  Judson,  19 
Ky.  (5  B.  Mon.)  485.  That  he  cannot  Wend.  (N.  Y.)  229;  Franciscus  v. 
give  judgment  for  the  rent,  see  Reigart,  4  Watts  (Pa.)  98;  Jones  v. 
Richardson  v.  Vice,  4  Blackf.  (Ind.)  Gundrim.,  3  Watts  &  S.  (Pa.)  531; 
13.  McGeary  v.  Raymond,  17  Pa.  Super. 

574  Thornton  v.  Wilson,  55  Ga.  607.  Ct.    308;    Furbush   v.    Chappell,    105 

575  Florida    Rev.    Laws    1906,     §§  Pa.  187. 

2241,   2243    (semble) ;    Georgia  Code  579  vin.  Abr.,  Bailiff   (B);    Trevil- 

1895,  §  4819;   Texas  Rev.  St.  1895,  §§  lian   v.   Pine,    11    Mod.   112;    Anony- 

3240,    3242;    Virginia    Code    1904,    §  mous,  Golb.  109;  Whitehead  v.  Tay- 

2794  a.  lor,  10  Adol.  &  E.  210;  Jean  v.  Spur- 

576  Anderson  v.  Henry,  45  W.  Va.  rier,  35  Md.  110.  But  aliter  if  the 
319.  31  S.  E.  998.  distress  was  not  made  in  the  land- 

677  See  ante,  at  note  419.  lord's  name.  Anonymous,  Godb.  109; 

578  Bro.  Abr.,  Bailie  pi.  2;    1  Bac.    Wilson   v.    Tumman,    6    Man.    &    G. 
Abr.,    Bailiff     (C) ;     Anonymous,    1    236;   Jean  v.  Spurrier,  35  Md.  110. 
Salk.    191 :    Manby  v.    Long,    3    Lf^v.        •''"Ro  Whitehead  v.  Taylor,  10  Adol. 
107;    Lambson   v.   Matthew,   5    Har.    &  E.  210.     But  not,  it  has  been  de- 


»  23g  PERSON  TO  MAKE  LEVY.  2053 

A  statutory  requirement  of  a  warrant  to  distrain  has  been  re- 
garded as  precluding  a  distress  by  the  landlord  himself.^si 
'^  In  a  number  of  jurisdictions  the  statute  requires  the  levy  to 
be  made  by  a  sheriff,  a  constable,  or  other  officer.^ss  Though 
the  statute  names  the  officer  who  is  to  levy  the  distress  under 
the  warrant,  in  making  the  levy  he  acts,  it  has  been  decided, 
merely  as  the  landlord's  bailiff  and  not  as  an  officer  of  the  law,'^^^^ 
and  this  is  a  fortiori  the  case  when  an  officer  is  named  as  bailiff 
without  any  statutory  requirement  to  that  effcct.ss-^  But  it  has 
been  decided  that  a  warrant  directed  by  the  landlord  to  the  sher- 
iff may  be  executed  by  his  deputy .^^^ 

It  has  been  decided  that,  though  one  levies  a  distress  in  his 
own  name,  and  not  in  that  of  the  landlord  to  whom  the  rent  is 
due,  he  may  justify  as  the  bailiff  of  the  latter.58« 

The  landlord,  in  authorizing  another  to  distrain  on  his  behalf, 
impliedly  agrees  to  indemnify  him  against  any  liability  on  ac- 
count of  acts  properly  done  by  the  latter  in  the  exercise  of  his 
authority.^s"^  There  is  ordinarily  no  right  of  indemnity  in  favor 
of  the  bailiff  on  account  of  acts  wrongfully  committed  by  him 
in  the  course  of  the  distress.^ss 

If  the  bailiff  commits  some  act  which  renders  his  employer  liable 
to  the  tenant,  the  employer,  on  paying  the  tenant,  is  entitled  to 
recover  over  against  the  bailiff-^^^    So  a  bailiff  may  be  liable  to  his 

cided,    in    a   jurisdiction   where    an       585  Giles  v.  Ebsworth,  10  Md.  333; 
executor   has   no    authority   to    dis-   Myers  t.  Smith,  27  Md.  91. 
train.     Bagwell   v.   Jamison.   Cheves        586  Trent    v.    Hunt,    9    Exch.    14; 
(S     C)    249-     Salvo    v.    Schmidt,    2    Wootley  v.  Gregory.  2  Younge  &  J. 
Speers  Law  '(S.  C.)   512.  536.     But    see    Swearingen    v.    Ma- 

581  Giles  V.  Ebsworth,  10  Md.  333.    gruder,  4  Har.  &  McH.  (Md.)   347. 

ns2  Florida  Gen.  St.  1906,  §  2241;  r,87  Lord  v.  Brown,  5  Denio  (N. 
Georgia  Code  1895,  §  4818;  Ken-  Y.)  345  (want  of  right  to  distrain). 
tucky  St.  1903,  §  2301;  Mississippi  See  Fawcett,  Landl.  &  Ten.  (3rd 
Code  1906,  §'  2845;  Texas  Rev.  Ed.)  282;  Draper  v.  Thompson,  4 
St.  1895.  arts.  3242,  3243;  Virfjinia  Car.  &  P.  84,  per  Tindal,  C.  J.;  Cox 
Code  1904  §  2790;  West  Virginia  v.  Bailey,  6  Man.  &  G.  193. 
Code  1906,'  §  3403.  "^^  See    Ibbet    v.    De    La    Salle,    6 

583  Webber    v.    Shearman.    6    Hill    Hurl.  &  N.  233;    Toplis  v.  Grane.  5 
(N    Y)    29;    Moulton   v.   Norton,    5    Bing.    N.   C.    636. 

Barb.  (N.  Y.)  286.  ^''^  Megson    v.    Mapleton,    49    Law 

584  Murphy  v.  Chase,  103  Pa.  200.    T.    (N.   S.)    744. 


2054  DISTRESS.  §  337 

employer  for  the  value   of   goods  distrained  and  lost  by   him 
through  his  failure  to  exercise  ordinary  care.^^*^ 

§  337.    Mode  of  levy. 

a.  Entry.  In  order  that  one  may  enter  on  the  leased  prem- 
ises for  the  purpose  of  levying  a  distress,  he  may  open  an  outer 
door  in  the  way  in  which  other  persons  ordinarily  open  it  when 
it  is  left  so  as  to  be  accessible  to  all  having  occasion  to  goi  on  the 
premises,  as,  for  instance,  by  turning  a  key  in  the  lock,  lifting  a 
latch,  or  drawing  back  a  boltj^^^^  and  he  may  enter  by  a  door  al- 
ready open.^^2  gilt  an  outer  door  cannot  be  broken  open,^^^ 
whether  it  be  the  door  of  a  residence  or  of  a  stable  or  other  build- 
j Jig  594  gy  ii^Q  outer  door  in  this  connection  is  to  be  understood 
the  door  of  a  building,  and  it  is  immaterial  that  the  landlord  or 
his  representative  has,  without  exerting  force,  obtained  access  to 
the  yard  enclosing  the  building.^^^  It  has  been  held  to  be  like- 
wise immaterial  that  the  tenant  is  no  longer  in  possession  of  the 
premises.^^®  The  landlord  or  his  representative  may,  however, 
enter  by  a  door  forcibly  broken  open  by  another  without  the 
former's  connivance.^'^''^  If  the  outer  door  is  open,  the  person 
seeking  to  distrain  may  break  open  an  inner  door.^^^ 

It  has  been  held  that  if  the  landlord  forcibly  breaks  open  the 
outer  door,  and  thereafter  sells  the  goods  distrained,  he  will  be 

590  White  T.  Heywood,  5  Times  Dent  v.  Hancock,  5  Gill  (Md.)  120; 
Law   R.   115.  Gate   v.    Schaum,   51  Md.   299.     This 

591  Ryan  V.  Shilcock,  7  Exch.  72;  has  been  changed  by  statute  in  Vir- 
Crabtree  v.  Robinson,  15  Q.  B.  Div.  ginia  (Code  1904,  §  2793)  and  Wcct 
314;  Dent  v.  Hancock,  5  Gill  (Md.)  Tirgiyiia  (Code  1906,  §  3406),  as  re- 
120;    Gate    T.   Schaum,    51    Md.    299.  gards  an  entry  in  the  daytime. 

But  he  cannot,  it  has  been  decided,  594  Brown  v.  Glenn,  16  Q.   B.  254. 

pick  a  lock,  or  unlock  it  with  a  key  595  American  Must  Co.  y.  Hendry, 

brought    by    uim    for    thr     purpose.  62  L.  J.  Q.  B.  388. 

Murray    v.   Vaughn,   4   Pa.    Dist.   R.  596  Dent  v.  Hancock,  5  Gill    (Md.) 

631.  120. 

592  1  Rolle's  Abr.,  671  (m),  pi.  1,  597  Dent  v.  Hancock,  5  Gill  (Md.) 
?6:  Semayne's  Case,  5  Coke,  91;  Long  120. 

V.  Clark  [1894]  1  Q.  B.  119.  598  Browning     v.      Dann.      Bulles* 

593  Semayiie's  Case,  5  Coke.  91;  1  N.  P.  81;  2  Wms.  Paund.  284,  note  2, 
Smith's  Leading  Cases;  Hancock  v  Poole  v.  Longevill;  Anonymous, 
Austin,  14  C.  B.   (N.  S.)   634;   Crab-  Comb.  17. 

tree  v.  Robinson,  15  Q.  B.  Div.  312; 


,  ggy  MODE  OF  LEVY.  205C 

liable  as  a  trespasser  for  the  full  value  of  the  goods,  though  the 
proceeds  are  applied  in  satisfaction  of  the  rent.^a^ 

The  landlord  or  his  representative  cannot  break  open  a  gate,  or 
break  down  a  wall  or  fence,«^o  but  he  may  climb  over  a  wall  or 

a  fence.*"^^ 

The  landlord  or  his  representative  may  enter,  it  has  been  said, 
])y  an  open  window,««2  or  he  may  open  further  a  window  already 
open.«o3  But  it  is  illegal  to  open  a  window,  whether  the  window 
is  fastened  604  or  merely  closed  without  being  fastened-^^^  An 
entry  by  an  open  skylight  has  been  held  to  be  lawful.^''^ 

If  one  who  has  made  a  lawful  entry  is  forcibly  turned  out  of 
possession,607  or  if,  having  temporarily  left  the  premises,  he  is 
kept  out  of  possession,6o8  he  may  break  open  an  outer  door  m 
order  to  re-enter.  It  has  been  decided  that  a  delay  of  six  days 
will  deprive  the  landlord  of  this  right  of  forcible  re-entry .«<>» 
One  who  has  merely  gotten  his  foot  and  arm,  or  some  article,  be- 
tween the  door  and  the  door  post,  so  as  to  prevent  it  from  being 
closed,  has  not  such  possession  that  he  may  break  open  a  door 
in  order  to  gain  admission.6i<^ 

One  who  has  lawfully  entered  may,  it  seems,  break  open  the 
outer  door  in  order  to  remove  the  goods  distrained.^i^ 

The  statute  11  Geo.  2,  c.  19,  §  1,  authorizing  the  landlord  to 
follow  goods  removed  from  the  premises  for  the  purpose  of  dis- 

5»9  Attack  V    Bramwell,  3  Best  &       604  Hancock  v.  Austin,  14  C.  B.  (N 

S    520  S-)    62^- 

' 600  Co    Utt.  161  a;   Rich  v.  Wool-  005  Nash   v.  Lucas,  L.  R.  2  Q.   B. 

ley    7   Bing    651;    Gate  y.    Schaum,  590;  Gate  y.  Schaum,  51  Md.  299. 

51  Md.  299.     But  he  may,  it  seems.  g'>6  Miller  y.  Tebb,  9  Times  Law  R. 

if  he  is  a  tenant  in  common  of  the  515. 

wall      See    Gould    y.    Bradstock,    4  go- Eagleton     v.      Gutteridge,     11 

Taunt    562  M^^^-  ^  ^^-  ^^^''  ^^^^^^^^^  '^-  Stacey, 

coiLong  y.  Glarke   [1894]   1  Q.  B.  15  G.  B.   (N.  S.)   458. 

119.    approying    Eldridge   y.    Stacey,  nos  Bannister  y.  Hyde,  2  El.  &  El. 

15  C   B    (N   S  )  458,  and  questioning  627. 

Scott  y.  Buckley,  16  Law  T.  ^N.  S.)  r.no  Russell  y.  Rider,   6   Gar.   &  P. 

573  ^^^■ 

602  Nixon  V.  Freeman,  5  Hurl.  &  N.  ci"  Boyd  y.  Profaze.  16  Law  T.  (N. 

653-    Long  y.  Glark    [1894]   1   Q.   B.  S.)    431.     And  see  Unitrr^   States  v. 

^^g'        ^  Prott,  2  Cranch  C.  C.  5r^2,  T^ed.  Gas. 

f.on  Crabtree  y.  Robinson,  15  Q.  B.  No.  16.408.                               ,  ,     „    ^ 

Diy.    312;    Miller   v.   Tebb,   9    Times  en  Pugh  r.  Griffith,   7  Adol.   &  E. 


Law  R.  515. 


827. 


2056  DISTRESS.  §  337 

training  thereon,^^^  provides  that  if  they  are  placed  in  a  house  or 
other  building,  or  in  a  locked  yard  or  closed  or  other  place,  the 
landlord  may,  with  the  assistance  of  a  constable,^^^  ^nd  in  the 
case  of  a  dwelling  house,  after  making  oath  of  a  reasonable 
ground  to  suspect  their  presence  therein,  break  into  such  house, 
yard,  or  place.  There  are  in  at  least  three  states  somewhat  simi- 
lar provisions,  allowing  a  house  or  building  to  be  broken  into  in 
order  to  levy  on  goods  removed  from  the  leased  premises.®^  ^  In 
two  of  these  states  the  officer  having  a  distress  warrant  is  au- 
thorized by  the  statute  to  break  in  the  daytime  into  any  house 
or  close  in  which  there  may  be  goods  liable  to  the  distress,  al- 
though they  have  not  been  removed.^^^ 

b.  Seizure.  The  landlord,  having  entered,  must  then  seize 
the  goods.  No  particular  form  of  language  or  character  of  act 
is  necessary  to  constitute  a  seizure,  it  being  sufficient  that  there 
is  a  distinct  expression  of  an  intention  to  distrain  particular 
goods,  and  acts  in  accordance  therewith.  There  is  a  valid  seizure 
if  the  landlord  or  his  agent  takes  effectual  means  to  prevent  the 
removal  of  the  goods  from  the  premises,®^  ^  and  a  declaration  by 
the  landlord  that  the  goods  shall  not  be  removed  till  the  rent  is 
paid  has  been  recognized  as  sufficient,^!'^  as  has  a  notification  by 
him  to  the  tenant  that  he  has  distrained  certain  goods.^^^  Like- 
wise, there  is  a  sufficient  seizure  if  the  landlord  claims  the  goods 
and  tries  to  detain  them.^^^  But  the  mere  commencement  of  the 
taking  of  an  inventory  of  the  goods,  without  completing  it,  not 
accompanied  or  followed  by  the  removal  of  any  goods,  is  not  a 
seizure. ^2'' 

A  seizure  of  some  goods  in  the  name  of  all  is  a  good  seizure  of 

ci2See  ante,  §  328  m  (3).  Furbush   v.   Chappell,   105   Pa.    187; 

613  See   Rich    v.    Wooley,    7   Bing.  Furbush  v.  Fisher,  16  Phila.    (Pa.) 

651.  170. 

enyew  Jersey,  1  Gen.  St.  p.  1211,  eis  Swann  v.  Falmouth,  2  Mann.  & 

§    16;    Virginia   Code   1904,    §    2793;  R.   534,    8   Barn.  &  C.   456;    Finn  v. 

West  Virginia  Code  1906,  §   3406.  Morrison,  13  U.  C.  Q.  B.  568;   Black 

615  See  the  above  cited  provisions  v.    Coleman,    29    U.    C.    C.    P.    507; 
of  the  Codes  of  Virginia  and  West  Newell  v.  Clark,  46  N.  J.  Law,  363. 
Virginia.  cigDod    v.    Monger,    6    Mod.    215; 

616  Cramer  v.  Mott,  L.  R.  5  Q.  B.  Werth  v.  London  &  Westminster 
359.  Loan  Co.,  5  Times  Law  R.  320. 

«iT  Cramer  t.  Mott,  L.  R.  5  Q.  B.       eao  Spice  T.  Webb,  2  Jur.  943. 
359-    Wood    V.    Nunn,    5    Bing.    10; 


§338 


EFFECT   OF  LEVY.  2057 


all,^2^  and  it  is  not  necessary  that  the  landlord  go  into  all  the 
rooms  of  the  house,  if  he  makes  an  inventory  of  the  goods  seized 
and  puts  a  man  in  pos.session.622  It  is  unnecessary  to  leave  a 
man  in  possession,  if  the  articles  seized  are  clearly  indicated,  and 
notice  of  the  seizure  given  to  the  tenant.^^s 

c.  Hours  for  levy.  A  levy  of  distress  must  be  made  in  the 
daytime,  that  is,  between  sunrise  and  sunset,  and  if  one  distrains 
in  the  night  he  is  liable  as  a  trespasser.<524  g^t  where  a  landlord 
took  measures,  after  sunset,  forcibly  to  prevent  the  removal  of 
the  goods,  in  order  that  he  might  distrain  them  the  next  day,  the 
tenant,  it  was  held,  not  resisting,  could  not  claim  as  for  a  wrong- 
ful conversion,  the  goods  remaining  in  his  possession  and  con- 
trol.625  It  has  been  said  that  if  the  tenant,  or  the  owner  of  the 
goods  on  the  premises,  by  keeping  the  premises  locked,  prevents 
a  levy  in  the  daytime,  he  cannot  assert  that  a  distress  made  in  the 
night  time  upon  the  goods  while  being  removed  from  the  premises 
is  illegal.626 

§  338.    Effect  of  levy. 

The  landlord  has  not  infrequently  been  said  to  have  a  lien  on 
the  goods  distrained  by  him.^^T  By  this  is  meant  apparently 
merely  that  he  has  a  right  to  the  possession  of  the  goods,  and 
to  have  a  sale  thereof,  unless  the  rent  is  paid,  and  this  is  pre- 
sumably also  what  is  meant  by  the  statement  that  he  has  a  ''spe- 
cial property"  in  the  goods  distrained.^^s  tj^^  actual  ownership 
of  the  goods,  however,  is  not  changed  by  the  distress.«29 

621  Dod.  V.  Monger,  6  Mod.  215.  626  Pickering    v.     Brien,     31     Pa. 

622  Tennant  v.  Field,   8   El.  &  Bl.    Super.  Ct.  280. 

„„„  627  Leonard  v.  Neale.  1  Cranch  C. 

000. 

623Swann  v.  Falmouth,  8  Barn.  &    C  493,  Fed.  Cas.  No.  8.259;    Calvert 

^    .^r-    ^               ,,     ^  c  TU    Ar.^    (R  ^-  Stewart,  4  Cranch  C.  C.  728,  Fed. 

C.  456;  Eames  v.  Mayo,  6  111.  App.  (6  ,,      „  „„„     „                01  •            oe 

Cas.  No.  2,327;  Speer  v.  Skinner,  35 

Bradw.)   334.  ^^^   2^2-  p^rst  Nat.  Bank  of  Joliet  v. 

624  Co.  Litt.  142  a;  Tutton  v.  ^^^^^  ^^^  ^^^  ^^3^  28  N.  E.  9o5; 
Darke.  5  Hurl.  &N.  647;  Sherman  V.  ^.^^^^^  ^  Cowperthwaite,  2  Dall. 
Dutch,  16  111.  283;    Fry  v.  Breckiu-  ^p^^  g^ 

ridge,  46  Ky.   (7  B.  Mon.)   31.     But  028  Delaware    Rer.    Code    1893,    p. 

a  distress   damage  feasant  may  be  g^p^   §   30.    Lambson  v.  Matthew,   5 

made  in  the  night.     Co.  Litt.  142  a.  Har.  (Del.)   28. 

625  England  T.  Cowley,  L.  R.  8  620  Moore  v.  Pyrke,  11  East,  52; 
Bxch.  126.  King  v.  England,  4  Best  &  S.  782. 


2058  DISTRESS.  §  339 

The  seizure  of  goods  under  a  distress  does  not  preclude  a  sub- 
sequent action  by  the  landlord  against  the  tenant  for  the  rent.^^^ 
So  long,  however,  as  the  goods  remain  unsold,  the  landlord  can- 
not bring  an  action  for  the  rent.^^^ 

There  is,  it  has  been  decided,  no  presumption  that  the  amount 
of  the  landlord's  claim  was  satisfied  by  the  levy.<^32 

§  339.    Impounding. 

At  common  law  the  landlord,  having  seized  the  goods,  was  re- 
quired to  remove  them  off  the  demised  premises  and  to  put  them 
in  a  ''pound,"  that  is,  a  place  suitable  for  their  safekeeping,  in 
a  pound  covert,  that  is,  one  protected  from  the  weather,  if  the 
articles  were  of  a  perishable  nature,  and,  if  the  things  distrained 
were  cattle,  in  an  open  pound,  into  which  the  owner  could  enter 
for  the  purpose  of  feeding  them  unless  the  landlord  as.sumed  the 
responsibility  of  doing  this.^^^  Originally  there  was  no  restric- 
lion  as  to  the  location  of  the  pound,  and  consequently  the  land- 
lord could  cause  much  hardship  to  the  tenant  by  impounding  the 
tenant's  cattle  in  several  and  distant  places,  where  it  was  prac- 
tically impossible  for  the  tenant  to  feed  them.  It  was  conse- 
quently provided  by  the  statute  of  Marlbridge  (52  Hen.  3,  c.  4) 
that  no  one  should  cause  any  distress  taken  by  him  to  be  driven 
out  of  the  county  where  it  was  taken,  and,  by  a  later  statute,^^* 
that  no  distress  of  cattle  should  be  removed  more  than  three 
miles,  and  that  all  things  distrained  at  one  time  must  be  im- 
pounded together.  By  a  still  later  statute,  that  of  11  Geo.  2,  c. 
19,  §  10,  the  landlord  or  his  representative  is  enabled  to  impound 
the  goods  on  the  leased  premises.  There  is  a  Canadian  decision 
that  the  tenant  cannot  maintain  an  action  against  the  landlord 
for  removing  furniture  to  a  city  six  miles  distant,  unless  it  was 

63ophilpott  V.  Lehain,  35  Law  T.  App.  417,  23  S.  W.  480,  24  S.  W.  313. 

(N.    S.)    855;    Manley   v.    Dupuy,    2  ess  See    Gilbert,    Distress,    62;    Co. 

Whart.      (Pa.)      162;      Robinson     v.  Litt.  37  b;  2  Co.  Inst.  106;  Bac.  Abr., 

White,  39  Pa.  255.     Compare  Fulch-  Distress   (D) ;  Griffin  v.  Scott,  2  Ld. 

er  V.  West  (Tex.  Civ.  App.)  51  S.  W  ^^^^   ^^^G;  Wilder  v.  Speer.  8  Adol. 

^^^'    ,    ,    .  T.V.M     *.     T      r>     -.A    &  E.  547;  Bignell  t.  Clarke,  5  Hurl. 

C31  Leham    v.    Philpott,    L.    R.    10 
T.     X.    o.o  &  N.  485. 

Exch.  242. 

632  Taylor  v.   Felder.   5   Tex.    Civ.       «34  i  &  2  Phil.  &  Mary,  c.  12,  §  1. 


§340 


IMPOUNDING.  2059 


unnecessary  to  do  so,  and  unless  it  is  averred  that  the  act  was 
unreasonably  or  maliciously  done  to  prejudice  tlie  tenant.*^35 

To  constitute  an  impounding,  the  whole  of  the  goods  distrained 
need  not  be  put  together,  its  being  sufficient  if  the  person  distrain- 
ing makes  an  inventory  of  the  goods  distrained,  serves  it,  with 
notice  of  the  distress,  on  the  tenant,  and  leaves  a  man  in  i>osses- 
sion,63«  and  the  person  distraining  may,  with  the  assent  of  the 
tenant,  leave  the  goods  as  they  stand  upon  the  premises.^^T 

If  the  tenant  does  not  assent  to  the  leaving  of  the  goods  in 
the  same  position  on  the  premises  as  before,  the  distrainor  cannot 
ordinarily  take  the  whole  house  for  the  custody  of  the  goods,  but 
must  select  one  room  for  the  purpose,  or  remove  the  goods  from 
the  premises.'^ss  If,  however,  it  is  necessary  to  occupy  the  whole 
of  the  premises  leased,  in  order  to  safely  keep  the  goods,  the 
landlord  or  his  representative  may,  it  seems,  do  so  to  the  entire 
exclusion  of  the  tenant.^^o 

In  Maryland  the  English  statutes,  above  referred  to,  on  the 
subject  of  impounding,  are  in  force  ;*5-*o  while  in  Delaware  and 
New  Jersey  they  have  been  substantially  re-enacted.*'^ ^  In  Penn- 
sylvania, though  there  is  no  statute  in  force  expressly  authorizing 
an  impounding  on  the  premises,  the  validity  of  such  impounding, 
for  the  period  allowed  the  tenant  for  replevying,  has  been  recog- 
nized.*542  Iq  three  states  it  is  provided  that  the  officer  making 
the  distress  shall  not  remove  the  property  out  of  the  county .^'^s 

§  340.    Pound  breach. 

In  case  the  goods  distrained  are  taken  from  the  control  of  the 

635  MacGregor  v.  Defoe,  14  Ont.  87.  64o  See    Alexander's    British    Stat- 

630  Johnson  v.  Upham,  2  EI.  &  El.  utes  in  force  in  Maryland. 

250;    Tennant  v.   Field,  8  El.   &  BI.  e4i  Delmvare    Rev.    Code    1893,    p. 

336.  870,  §  29;  New  Jersey,  1  Gen.  St.  pp. 

637  WashbiTrn    v.    Black,    11    East,  1207,  1209,  §§  2,  4,  5,  9.     See  Newell 

405;    Tennant  v.  Field,   8  El.   &   Bl.  v.  Clark,  4G  N.  J.  Law,  363. 

336;    Thomas  v.  Harries,  1  Man.   &  642  See   Holland  v.   Townsend,  136 

G.  695;   Cox  v.  Painter,  7  Car.  &  P.  Pa.  392,  20  Atl.  794;  Waitt  v.  Ewing, 

767.  7  Phila.  (Pa.)  195;  Woglam  v.  Cow- 
ess  Woods  T.  Durrant,  16  Mees.  &  perthwaite,  2  Dall.  (Pa.)  68;  MoKin- 

W.  149.  ney  v.  Reader,  6  Watts  (Pa.)   34,  36 

639  See  Woods  v.  Durrant,  16  Mees.  Am.  Dec.  202. 

&  W.  149;   Cox  V.  Painter.  7  Car.  &  aiz  Mississinpi  Code  1906,  §   2353; 

P.  767;  Holland  V.  Townsend,  136  Pa.  Yirrjinia    Code    1904,    §    905;     West 

392,  20  Atl.  794.  Virginia  Code  1906,  §  1315. 


2060  DISTRESS.  §  341 

landlord  or  his  representative  against  his  v/ill,  the  person  taking 
the  goods  is  guilty  of  a  "pound  breach"  or  "rescue."  For  this 
he  is  liable,  under  the  statutes  of  some  jurisdictions,  in  treble 
damages,^^^  and  he  is  also  criminally  liable.^^^  If  the  goods  were 
impounded  on  the  premises  one  is,  it  has  been  decided,  liable  iu 
treble  damages  only  if  he  had  notice  of  the  impounding  at  the 
time  of  the  pound  breach.^^^ 

The  landlord  has  the  right  to  again  seize  the  goods  wrongfully 
taken  from  him,  wherever  he  may  find  them,  provided  he  can  do 
so  without  a  breach  of  the  peace '^^'^  and  on  "fresh  pursuit.*^"*^ 
If  the  distress  is  wrongful,  the  tenant  can,  without  incurring  any 
liability,  rescue  the  goods  at  any  time  before  they  are  im- 
pounded.*^^^ 

§  341.    Care  of  things  taken. 

The  person  taking  goods  under  a  distress,  whether  the  landlord 
or  another,  is  bound  to  exercise  reasonable  care  that  no  injury  to 
them  shall  occur,*^^"  though  he  is  not  liable  for  injuries  occurring 
without  his  fault.^^^  He  is  liable  for  injuries  caused  by  the  un- 
suitable condition  of  the  pound  in  which  they  may  be  placed.*^^^ 

Formerly  the  owner  of  the  cattle  distrained  was  required  to 
water  and  feed  them  at  his  own  peril  if  they  were  placed  in  an 
open  pound.6^3  Now,  in  England,  the  distrainor  is,  by  statute, 
required  to  feed  them.^^^     There  is  a  dictum  in  one  state  that, 

644  England,  2  Wm.  &  M.  sess.  1,  c.  eso  See    Taylor   r.    Felder,    5    Tex. 

5,  §  3;   Delaware  Rev.  Code  1893,  p.  Civ.  App.  417,  23  S.  W.  480,  24  S.  W. 

870,   §    31    (double   damages);    Ken-  313. 

tucky  St.  1903,  §  2313;  New  Jersey,  1  65i  wilder  v.   Speer,  8  Adol.  &  E. 

Gen.  St.  p.  1209,  §  10;  Pennsylvania,  547;  Weber  v.  Vernon,  2  Pen.  (Del.) 

Pepper  &  Lewis'  Dig.  Laws,  "Laudl.  359,  45  Atl.  537. 

&  Ten."  §  12.  esa  wilder  r.  Speer,  8  Adol.  &  E. 

«45  2  McClain,  Crim.   Law,  §   932;  547. 

1  Russell,  Crimes  (6th  Ed.)  882.  It  has  been  decided  that  the  bur- 

646  Cadmus  v.  Barney,  42  N.  J.  den  is  on  the  landlord  of  showing 
Law,    346.  that  injuries  to  the  things  distrain- 

647  1  Rolle's  Abr.,  674;  Co.  Litt.  ed,  received  while  in  his  custody  or 
47  b.  1°  t^^'t  of  liis  bailiff  or  agent,  was 

6*8  Rich  V.  Woolley,  7  Bing.  651.  not  the  result  of  his  or  the  custod- 

649 Co.   Litt.   47  b,   160   b;    Bevil's  ian's   neglect.     Weber  v.  Vernon,   2 

Case,  4  Coke,  11  b;  Cotsworth  v.  Beti-  Pen.  (Del.)  359,  45  Atl.  537. 

Bon,  1  Ld.  Raym.  104.    See  post,  §  «53  Co.   Litt.   47   b. 

346  a.  «=*  12  &  13  Vict.  c.  92,  §  5. 


§  342  POWER  TO  SELL.  2061 

apart  from  any  statute,  one  distraining  is  liable  for  injuries 
caused  by  failure  to  feed  and  water  cattle  distrained,  as  well  as 
for  injuries  caused  to  milch  cattle  by  failure  to  milk  them.^^s 

One  distraining  cannot  ordinarily  make  any  use  of  the  goods 
or  work  the  cattle  distrained.*'^'^  He  may,  however,  as  above  in- 
timated, milk  the  milch  cows  distrained,*'^'^  though  he  must,  it 
has  been  decided,  account  for  the  value  of  the  milk,  less  the  ex- 
pense of  milking  and  caring  for  the  cows.*^^^ 

§  342.     Sale  and  preliminaries  thereto. 

a.  Power  to  sell.  At  common  law  goods  distrained  could  not 
be  sold,  but  could  only  be  detained  by  the  landlord  as  a  pledge, 
until  the  rent  was  paid.  This  was  changed  by  St.  2  "W.  &  M. 
sess.  1,  c.  5,  which  provided  that  if  the  owner  of  goods  or  chattels 
distrained  for  rent  "shall  not,  within  five  days  next  after  such 
distress  taken,  and  notice  thereof  (with  the  cause  of  such  taking) 
left  at  the  chief  mansion-house,  or  other  most  notorious  place  on 
the  premises,"  replevy  the  same,  the  person  distraining  shall  and 
may  cause  the  goods  and  chattels  to  be  appraised  by  two  sworn 
appraisers,  and  shall  and  may  sell  the  goods  and  chattels  so  dis- 
trained for  the  best  price  that  can  be  gotten,  towards  satisfac- 
tion of  the  rent  and  the  charges  of  such  distress,  appraisement, 
and  sale.  It  has  been  decided  that  this  statute  does  not  render 
a  sale  compulsory,  and  that  no  action  lies  for  not  selling.*'-''^ 

In  one  state  the  English  statute  above  recited  is  in  force,^^*^ 
and  in  others  it  has  been  re-enacted  with  some  changes,  of  greater 
or  less  extent.'^^i  The  statute  of  Pennsylvania,  though  using 
the  same  words  "shall  and  may  sell"  as  those  which  occur  in 
the  English  statute,  has  received  a  different  construction  from 

655  Weber  V.  Vernon,  2  Pen.  (Del.)  eeo  Maryland.       See       Alexander's 

359,  45  Atl.  537.  British    Statutes    in   force   in   Mary- 

056  Dot]    V.    Monger,    6    Mod.    215;  land  567. 

Smith  V.  Wright,  6  Hurl.  &  N.  821.  eei  Belavxire    Rev.    Code    1893,    p. 

657  See  Bagshawe  v.  Goward,  Cro.  869,  §§  25,  26,  p.  871,  §  32;  Kentucki/ 
Jac.  147.  St.    1903,    §    2309;    Mississippi   Code 

658  Weber  v.  Vernon,  2  Pen.  (Del.)  1906,  §  2845;  Neio  Jersey,  1  Gen.  St. 
359,  45  Atl.  537.  p.  120S.  §  6;  Pennsylvania,  Pepper  & 

659  Hudd  v.  Ravenor,  2  Brod.  &  B.  Lewis  Dig.  Laws,  "Landl.  &  Ten."  § 
662:  Lear  v.  Edmonds,  1  Barn.  &  11:  South  Carolina  Civ.  Code  1902, 
Aid.  157.  §  2435, 


2062  DISTRESS.  §  342 

that  placed  on  the  latter,  and  has  been  regarded  as  imposing  an 
obligation  to  sell.^*^^ 

b.  Notice  to  tenant.  The  first  thing  to  be  done,  under  the 
English  statute  and  those  adopting  its  requirements,  with  a  view 
to  the  sale  of  the  goods  distrained,  is  the  giving  of  a  notice  to 
the  tenant.  This  notice  should  state  the  amount  of  the  rent  for 
which  the  distress  is  made,^®^  and  contain,  or  be  accompanied  by, 
an  inventory  or  list  of  the  goods  distrained.^^^  The  notice  must 
be  in  writing,  this  requirement  being  inferable  from  the  provision 
that  it  shall  be  "left"  on  the  premises.^^^  Although  the  statute 
in  terms  requires  the  notice  to  be  left  on  the  premises,  it  may, 
it  has  been  decided,  be  served  personally,^'^*^  and  if  the  goods  dis- 
trained belong  to  a  third  person,  the  notice  may,  in  the  landlord's 
discretion,  be  given  either  to  such  person  or  to  the  tenant.^^'^ 

An  officer,  in  giving  the  notice,  has  been  held  to  act  as  the  agent 
of  the  landlord,  and  not  as  a  public  officer.''^s 

The  statutes  do  not  ordinarily  name  any  time  at  which  the 
notice  must  be  given,  and  it  may  be  given  on  the  day  on  which 
the  distress  is  made.^^^ 

The  notice  of  distress  is  required  merely  as  a  prerequisite  to 
sale,  and,  if  there  is  no  sale,  the  lack  of  the  statutory  notice  is 
immaterial.^^'^ 

662  Quinn  V.  "Wallace,  6  Whart.  "the  inventory  should  be  so  full  and 
(Pa.)    452.  complete  as  to  inform  the  tenant  of 

«63  Kerby  v.  Harding,  6  Exch.  234;  the  goods  distrained,  and  for  which 
Snyder  v.  Boring,  4  Pa.  Super.  Ct.  he  may  have  a  writ  in  replevin." 
196,  40  Wldy.  Notes  Cas.  275.  And    see    Snyder    v.    Boring,    4    Pa. 

664  Kerby  v.  Harding,  6  Exch.  2C4.    Super.  Ct.  196. 
In   Wakeman   v.    Lindsey,    14   Q.    B.        665  Wilson  v.  Nightingale,  8  Q.  B. 
625.  an  inventory  specifying  certain    1034;   Shultz  v.  Reddick,  43  U.  C.  Q. 
goods,     and     concluding    "and     any    B.    155;     Snyder    v.    Boring,    4    Pa. 
other  goods  and  effects  that  may  be    Super.  Ct.  196. 

found  in  and  about  the  said  prem-  eec  Walter  v.  Rumbal.  1  Ld.  Raym. 
ises,  to  nay  the  said  rent  and  ex-  53,  4  Mod.  390.  See  Wilson  v.  Night- 
penses  of  this  distress,"  was  regard-  ingale,  8  Q.  B.  1034. 
ed  as  sufficiently  specific.  This  667  Walter  t.  Rumbal,  4  Mod.  390, 
case  is  distinguished  in  Kerby  v.  1  Ld.  Raym.  53;  Caldcleugh  v.  Hoi- 
Harding,  6  Exch.  234,  supra,  where  lingsworth,  8  Watts  &  S.  (Pa.)  302. 
the  inventory  included  "and  all  ees  Murphy  v.  Chase,  103  Pa.  260. 
other  goods  and  chattels  on  the  «R9  whitton  v.  Milligan,  153  Pa. 
premises  which  may  be  required   to    376,    26   Atl.    22. 

sat^'^c-.r    the    rent."     In    Richards    v.        ero  Trent  v.  Hunt,  9  Exch.  14;  Mc- 
McGrath,  100  Pa.  389,  it  is  said  that 


f  342  APPRAISEMENT.  20G3 

The  owner  of  the  goods  distrained  has  alone,  it  seems,  the 
power  to  w^aive  the  notice.^'^i  Such  waiver  is  not  shown,  it  has 
been  decided,  by  the  fact  that  the  owner  of  the  goods  informs 
the  person  making  the  levy  that  he  does  not  care  for  an  inventory, 
he  knowing  what  was  seized.^^^ 

c.  Appraisement.  The  English  statute  gives  the  tenant  or 
owner  of  the  goods  distrained  "five  days  next  after  such  distress 
taken,  and  notice  thereof,"  within  which  to  replevy  them,  after 
which  the  appraisement  and  sale  may  be  made,  and  substan- 
tially similar  provisions  are  to  be  found  in  several  state  stat- 
utes.<5^3  The  days  named  in  the  statute  are  to  be  computed  from 
the  day  on  which  the  notice  is  given,  and  five  clear  days  of 
twenty-four  hours  each  must  intervene  between  that  day  and 
the  day  of  appraisement.^'^'*  The  person  making  the  distress  has 
a  reasonable  time  after  the  expiration  of  the  five  days  in  which 
to  have  the  goods  appraised  and  to  make  the  sale,  and  further 
time  may  be  taken  for  this  purpose  with  the  consent  of  the  ten- 
ant.«"5 

The  person  making  the  distress  cannot  act  as  an  appraiser.^'^^ 
The  appraisers  must  be  reasonably  competent,  but  need  not  be 
professional  appraisers.^'^'^  In  two  states  the  statute  requires 
them  to  be  freeholders.^'''^ 

The  appraisers  should  be  sworn  by  the  sheriff  or  constable,^'''^ 

Kinney    v.    Reader,    6    Watts    (Pa.)  (N.  Y.)    164;   Robinson  v.  Wadding- 

34;  Keller  v.  Weber,  27  Md.  660.  ton,  13  Q.  B.  753;    Lynch  v.  Bickle, 

671  Briggs  V.  Large.  30  Pa.  287.  17  U.  C.  C.  P.  549. 

6T2  Shultz    T.    Reddick,    43    U.    C.  s-s  Pitt   v.    Shew,   4   Barn.    &   Aid. 

Q.  B.  155.     See,  as  to  waiver  by  ap-  208;    Fisher   v.   Algar,   2    Car.   &   P. 

pearance,    Wright   v.    Craig    (Miss.)  374;  Lynch  v.  Bickle,  17  U.  C.  C.  P. 

45   So.   835.  549. 

673  DeZaicare  Rev.  Code  1SD3,  p.  676  gee  Westv,-ood  v.  Cowne,  1 
869,  §  26;  Kentucky  St.  1903,  §  2309  Starkie,  172,  and  opinion  of  Best,  C. 
(ten  days) ;  New  Jersey,  1  Gen.  St.  J.,  in  Lyon  v.  Vveldon,  2  Bin?;  334. 
p.  1208,  §  6  (ten  days);  PennsyJ-  p77  Roden  v.  Eyton,  6  C.  B.  427; 
vania,  Pepner  &  Lewis'  Dig.  Laws,  Cahill  v.  Lee,  55  Md.  319. 
"Landl.  &  Ten."  §  11;  South  Carolina  678  Pennsylvania,  Pepper  &  Lewis' 
Civ.   Code  1902,  §  2435.  Dig.    Laws,    "Lnndl.    &   Ten."    §    11, 

674  McKinney  v.   Reader,    6  Watts  See  Snyder  v.  Boring,  4  Pa.  Super. 
(Pa.)   34;   Brisben  v.  Wil?on,  60  Pa     Ct.  196. 

452;   Davis  v.  Davis.  128  Pa.  100,  18        o-n  Kinney  v.   May,  1  l^^o'^dy  &  R. 
Atl.  514;  Butts  v.  Edwards,  2  Denio    50;    Curtis  v.  Bradley,  75   111.  180. 


2064  DISTRESS.  §  342 

and  this  shonld  be  done  before  the  appraisement.^^"  In  one  state 
the  statute  requires  the  appraisement  to  be  made  only  after  two 
days'  notice  to  the  tenant.^^^ 

The  tenant  may  waive  an  appraisement  of  his  own  goods,^^^ 
but  he  cannot  waive  either  the  notice  or  the  appraisement  as  re- 
gards the  goods  of  another,^^^  and  a  waiver  in  the  latter  case  is 
nugatory  even  though  the  landlord  is  ignorant  that  the  goods  do 
not  belong  to  the  tenant,  it  being  his  duty  to  determine  that  the 
tenant  owns  them  before  accepting  the  latter 's  waiver.684  That 
the  tenant  was  present  at  the  sale  and  requested  that  the  prop- 
erty be  all  sold  together  was  held  not  to  involve  a  waiver  of  the 
appraisement,  he  being  at  the  time  ignorant  that  none  had  been 
made.^^^ 

d.  Mode  of  sale.  The  English  statute,  by  which  the  right  to 
sell  the  goods  distrained  was  first  conferred,  does  not  contain  any 
specification  as  to  the  method  of  sale,  and  so  the  local  state  stat- 
utes, while  they  ordinarily  in  terms  authorize  a  sale,  do  not  specify 
the  mode  of  conducting  it.  In  some  states  the  person  levying  the 
distress  is  expressly  required  to  advertise  and  sell  as  in  case  of 
execution,^^^  and  in  another  it  has  been  held  that,  in  view  of  the 
fact  that  a  sale  is  compulsory,  it  is  to  be  treated  as  an  execution 
sale.^"^ 

In  a  few  states  the  statute  expressly  provides  for  public  notice, 
that  is,  an  advertisement  of  the  time  and  place  of  sale,*588  and  in 

esoKenney  v.  May,  1  Moody  &  R.  Mississippi  Code  1906,  §  2845;  SoutJi 

56.  Carolina  Civ.  Code  1902,  §  2435;  Vir- 

681  New  Jersey,  1  Gen.  St.  p.  1208,  ginia   Code   1904,    §    906;    West    Vir- 

§  6.     See  Brown  v.  Howell,  66  N.  J.  ginia  Code  1906,  §  1316. 

Law,   25,   48  Atl.  1020.  es?  Quinn    v.    Wallace,     6    Whart. 

6S2  Bishop  V.  Bryant,  6  Car.  &  P.  (Pa.)  452;  Richards  v.  McGrath,  100 

484;     Henkels    v.    Brown,    4    Phila.  Pa.    389. 

(Pa.)   299.  ess  Delaware    Rev.    Code    1893,    p. 

C83  Chestnut     St.     Nat.     Bank     v.  871,  §  32;  Geor(7ta  Code  1895,  §  4818; 

Crompton  Loom  Works,  19  C.  C.  A.  Kentucky  St.  1903,  §  2309;  Neto  Jer- 

609,  73  Fed.  614;  Briggs  v.  Large,  30  sey.   1   Gen.  St.  p.  1208,   §   6;    Prnn- 

Pa.  287.  sylvania.     Pepper     &     Lewis      Dig. 

fi84  Chestnut     St.     Nat.     Bank     v.  Laws,  "Landl.  &  Ten."  §  11;  Tirorijrm 

Crompton  Loom  Works,  19  C.  C.   k.  Code    1904,    §    906;     West    Virginia 

609,    73   Fed.    614;    Harris   v.   Shaw,  Code      190G,      §      1316.         In     3{is- 

17  Pa.  Super.   Ct.  1.  sissippi     (Code    1906.    §     2845)     the 

685  Curtis  V.  Brndley,  75  Til.  180.  ofHcer  m77?;(-  sell  "at  public  sale  to  the 

««« Georgia     Code     1895,     §     4818:  h5r.he:t    bidder." 


8  342  MODE  OF  SALS.  2065 

most  jurisdictions,  presumably,  a  public  notice,  as  in  case  of  exe- 
cution and  judicial  sales,  would  be  required.  No  such  require- 
ment appears  to  be  recognized  in  England. 

In  most  of  the  states  in  which  the  remedy  of  distress  is  still 
recognized  the  sale  must,  under  the  local  statute,  be  made  by  a 
sheriff  or  constable.^s9  Ti^e  goods  must  be  sold  in  such  a  way 
as  to  obtain  the  best  available  price^^'^  and  consequently  must, 
upon  occasion,  be  sold  separately  or  in  lots,  rather  than  en 
masse.^^^  A  sale  at  the  appraised  price  is,  it  has  been  said,  pre- 
sumably at  the  best  price.*5^-  The  landlord  cannot,  nor  can,  it 
would  seem,  an  officer  or  bailiff,  impose  conditions  upon  the  sale 
such  as  to  prevent  a  sale  at  the  best  price.''^^  Whether  the  sale 
has  been  so  conducted  as  to  obtain  the  best  price  depends,  it  has 
been  said,  upon  the  circumstances  of  each  case  and  the  character 
of  the  property  seized  and  sold.^^^  For  a  failure  to  obtain  the 
best  price    the  landlord  is  liable  in  damages.^^^ 

No  greater  amount  of  the  goods  should  be  sold  than  is  reason- 
ably necessary  to  satisfy  the  landlord's  claim  and  the  cost  of 
the  proceedings.^^^  But  the  distrainor  is  under  no  obligation, 
upon  demand,  to  sell  goods  belonging  to  the  tenant  before  those 
of  a  third  person.^^'^ 

In  England  it  appears  to  be  an  occasional  practice  for  the  ap- 
praisers to  take  the  goods,  if  of  small  value,  at  their  own  valua- 
tion.^^s  But  this  would  presumably  not  be  allowed  in  this  coun- 
try. It  has  in  England  been  decided  that  the  landlord  cannot 
himself  purchase  at  the  appraised  valuation,^^^  but,  presumably, 

eso  See  Delaware  Rev.  Code  1893,  eos  Hawkins   v.   Walrond,   1  C.   P. 

p.  871,  §  32;  Florida  Gen.  St.  §§  2241,  Div.    280;    Ridgway    v.    Stafford,    6 

2245;    Georgia    Code    1895,    §    4818;  Exch.  404. 

Kentncky   St.    1903,   §    23^9;    Missis-  694Cahill  t.  Lee,  55  Md.  319. 

sippi    Code    1906,    §    2845;    Virginia  ens  Ridgway   v.    Stafford,    6    Excli. 

Code    1904,    §    906;     West    Yirgiyiia  404;    Poynter  v.  Buckley,   5   Car.  & 

Code  1906,  §  1316.  P.  512;  Cahill  v.  Lee,  55  Md.  319. 

690  Poynter  v.  Buckley,  5  Car.  &  ese  Richards  v.  McGrath,  100  Pa. 
P.  512;  Cahill  v.  Lee,  55  Md.  319;  389;  Wilkinson  v.  Ibbet,  2  Fost  & 
Richards   v.   McGrath,   100   Pa.    389.  F.  300. 

691  Poynter  v.   Buckley,    5    Car.    &  697  Pegg  v.  Starr,  23  ont.  83. 

P.    512;    Cahill   v.  Lee,  55   Md.  319;  698  See  Bullen,   Distress    (2d   Ed.) 

Richards  v.  McGrath,  100  Pa.  389.  193;  Oldham  &  Foster,  Distress,  228. 

692  Walter  t.  Rumbal,  1  Ld.  Raym.  cno  King  v.  England,  4  Best  &  S. 
53.  782;  Moore  v.  Singer  Mfg.  Co.  [1904] 

L.  and  Ten.  130. 


2066  DISTRESS.  §  342 

where  the  sale  is  made  by  an  officer,  at  public  auction,  a  sale  to 
the  landlord  as  being  the  highest  bidder  would  be  validJ*^*' 

The  sale  must  be  made  after  the  five  days  or  other  period  named 
in  the  statute, '^'^^  and  a  failure  to  comply  with  the  statute  in  this 
respect  will  render  the  landlord  liable  for  any  damage  actually 
resulting,'^^2  unless  where  it  is  the  fault  of  the  officer  conducting 
the  sale,  and  such  officer  can  be  regarded  as  acting  in  his  official 
capacity J*^^  The  sale  should  be  made  within  a  reasonable  time 
after  the  expiration  of  the  statutory  period.'^^'*  It  may  be  post- 
poned for  a  reasonable  time  after  the  date  first  announcedJ"** 
And  v/ith  the  consent  of  the  tenant,  or  other  owner  of  the  goods, 
the  sale  may,  it  seems,  be  indefinitely  postponed,'^^^  provided  an 
innocent  third  party  is  not  thereby  misled. '^^'^ 

It  has  in  one  state  been  decided  that  the  officer,  in  making  the 
sale,  as  provided  by  the  statute,  does  so  in  his  official  capacity,  and 
that  he  consequently  is  the  person  entitled  to  sue  the  purchaser 
for  the  price  and  not  the  landlordJ<^s  g^t  in  another  state  it  was 
held  that  the  officer  so  selling,  though  he  is  required  by  the  stat- 
ute to  make  the  sale,  acts  merely  as  the  landlord's  agent,  and  not 
in  his  official  capacity.^o'^ 

If  the  distress  for  rent  is  illegal,  as  when  no  relation  of  tenancy 
exists,  no  rent  is  in  arrear,  or  the  goods  seized  are  not  subject 
to  distress, '^^'^  no  title  can  pass  to  a  purchaser  at  the  saleJ^^  If, 
on  the  other  hand,  there  are  merely  irregularities  in  conducting 
the  proceedings  or  in  making  the  sale,'^^^  h^q  purchaser  obtains 

1  K.  B.  820;  Williams  v.  Grey,  23  U.  705  Holland   y.   Townsend,   136   Pa. 

C.  P.   5G1.     See  Howell  v.  Listowell  392,   20   Atl.    794;    Brown  v.  Harris, 

Rink  &  Park  Co.,  13  Ont.  47G.     But  67  N.  J.  Law,  207,  50  Atl.  689. 

he   may  do   so  with  the   consent  of  tog  Fisher   v.    Algar,    2    Car.    &   P. 

the  owner  of  the  goods,  whether  the  374;    Bigelow   v.    Judson,    19    Wend. 

tenant   or  another.     Woods  v.   Ran-  (N.  Y.)   229. 

kin,    18    U.    C.    C.    P.    44.     Compare  tot  Lamotte  v.  Wisner,  51  Md.  543. 

Burnham    v.    Waddell,    3    Ont.    App.  tos  Lambson    v.    Matthew,    5    Har. 

288.  (Del.)    28. 

700  By  analogy  to  a  sale  to  an  ex-  toq  Murphy  v.  Chase,   103  Pa.  260. 
ecution    plaintiff.     See    2    Freeman,  tic  See  post,  §  346  d. 
Executions   (3rd  Ed.)    §  292.  7ii  Prescott  v.  DeForest,  16  Johns. 

701  See    ante,    §    342    a.  (N.    Y.)     159;    Smith    v.    Sheriff    of 

702  See  post,  §  340  d    (6).  Charleston  Dist.,  1  Bay  (S.  C.)   443. 
70.3  See  post,   at  note  608.  712  See  post,  §  348    (d)    8, 

704  See  ante,  at  note  575. 


§  343  AS  COMMENCEMENT  OF  ACTION.  2067 

a  good  title/13  except  in  jurisdictions  where  the  nile  still  exists 
that  such  irregularities  make  the  landlord  a  trespasser  ah  initio.'^^^ 

§  343,     Surplus  proceeds  and  unsold  goods. 

The  statute  2  W.  &  M.  sess.  1,  c.  5,  provided  that  the  chattels 
should  be  appraised  and  sold  "towards  satisfaction  of  the  rent 
for  which  the  said  goods  and  chattels  shall  be  distrained,  and 
of  the  charges  of  such  distress,  appraisement  and  sale,  leaving 
the  overplus  (if  any)  in  the  hands  of  the  sheriff,  under  sheriff 
or  constable,  for  the  owner's  use.''^^^  It  has  been  held  that  if  the 
overplus  be  not  left  with  an  officer  as  prescribed  by  the  statute, 
and  the  tenant  or  OAvner  of  the  goods  consequently  suffers  actual 
damage,  an  action  on  the  case  is  maintainable,'^^ ^  though  not  an 
action  for  money  had  and  received  to  recover  the  amount  of  such 
overplus.'^  1'^  In  such  an  action  for  damages  the  amount  of  the 
charges  may  be  questioned. '^^^  It  has  furthermore  been  decided 
that  the  fact  that  the  tenant  has  received  the  overplus  without 
objection  does  not  disentitle  him  to  recover  in  such  action,  it  be- 
ing a  question  of  fact  whether  he  received  it  in  full  satisfaction 
of  the  balance  due,  and  whether  it  was  sufficient  to  satisfy  such 
balance.'^i^ 

If  more  goods  were  seized  than  are  necessary  to  satisfy  the 
sum  claimed  and  the  costs,  it  is  proper  for  the  person  distraining 
to  return  them  to  the  premises  from  which  they  were  taken,  even 
though  he  has  notice  of  a  claim  to  them  made  by  a  third  party.'^^o 

§  344.     Statutory  distress  as  commencement  of  action. 

The  remedy  of  distress,  as  recognized  at  common  law,  is  not  an 
action,  it  being  exercisable  without  any  judicial  process  what- 

713  Lyon  V.  Weldon,  2  Bing.  334.  Tie  Lyon    v.    Tomkies,    1    Mees.    & 

714  Brisben  v.  Wilson,  60  Pa.  452.  W.   603. 

715  The  statute  of  Delaware  (Rev.  ti- Yates  v.  Eastwood,  6  Exch.  805; 
Code  1893,  p.  871,  §  33)  provides  Evans  v.  Wright,  2  Hurl.  &  N.  527. 
that  any  overplus  of  the  proceeds  of  7i8  Lyon  v.  Tomkies,  1  Mees.  &  W. 
sa,le,   after   satisfying   the    rent   and  603. 

costs,    shall,    without    delay,    be    re-  ti9  Lyon  v.  Tomkies,  1  Mees.  &  W. 

funded    to    the    owner   of   the    prop-  603. 

erty,    or    otherwise    applied    accord-  720  Evans  v.  Wright    2  Hurl.  &  N. 

Ing  to  law.  527. 


2068  DISTRESS.  §  344 

ever/21  and  it  cannot  be  regarded  as  such  even  by  reason  of  stat- 
utes requiring  as  a  preliminary  the  issue  of  a  warrant  by  a  jus- 
tice upon  affidavit  by  the  landlord,  and  requiring  the  seizure  and 
sale  to  be  made  by  a  sheriff  or  constable,  these  provisions  not 
involving  any  judicial  hearing  or  determinationJ22  jn  some 
states,  however,  the  character  of  the  remedy  has  been  entirely 
changed,  it  being  made  in  effect  the  commencement  of  a  proceed- 
ing in  court  to  obtain  a  sale  of  property  belonging  to  the  tenant 
to  satisfy  the  landlord's  claim,  and  also  a  personal  judgment 
therefor. 

In  Florida  the  statute  '^^s  provides  that,  upon  affidavit  by  the 
person  entitled  to  the  rent,  a  distress  warrant  shall  be  issued  by 
the  clerk  of  court  commanding  the  sheri'f  to  levy  on  property 
liable  to  distraint  and  collect  the  sum  claimed,  and  to  summon 
"the  defendant"  to  appear  before  the  court,  and  that,  if  the  de- 
fendant does  not  appear,  a  judgment  against  him  by  default  shall 
be  entered,  while,  if  the  defendant  appears  and  makes  affidavit 
that  the  sum  claimed,  or  a  part  thereof,  is  not  due,  this  issue 
shall  be  tried  by  the  court  or  a  jury  and  a  judgment  shall  be 
rendered  against  "the  defendant"  for  the  amount  found  to  be 
due,  and  that  the  property  distrained  shall  be  sold  and  the  pro- 
ceeds applied  on  the  judgment.  Under  this  statute,  it  has  been 
said,  the  affidavit  stands  in  lieu  of  and  performs  the  functions 
of  an  ordinary  declaration. '^24 

In  Georgia  the  statute  '^^^  provides  that,  on  affidavit,  a  justice 
of  the  peace  shall  issue  a  distress  warrant,  which  shall  be  levied 

721  See  3  Blackst.  Comm.  7;  Keller  set  off  against  the  claim  for  rent, 
V.  Weber,  27  Md.  660.  see  Fowler  v.  Eddy,  110  Pa.  117,  1 

722  Towns    V.    Boarman,    23    Miss.    Atl.   789. 

186;  Pate  v.  Shannon,  69  Miss.  372,  723  Gen.  St.  1906,  §§  2240-2245. 

13  So.  729.  "-*  Snioot  v.  Strauss,  21  Fla.   611. 

That  a  justice  authorized  to  issue  A  distress  warrant  under  this  stat- 

a  distress  warrant  has  not  therefore  ute   was   held  to   be   a  special   pro- 

any    judicial    power    to    determine  ceeding,  and  not  a  "process  by  which 

whether  rent  is  due,  see  Richardson  suit     is     commenced"     within     the 

V.  Vice,   4  Blackf.    (Ind.)    13;    Com-  meaning  of  the  practice  acts,  so  as 

raonwpalth  v.  Colgan,  44  Ky.    (5  B.  to    be    necessarily    returnable    to    a 

Mon.)    485.     And   that   he   has    not  rule     day.     Blanchard     v.     Raines' 

such  power  By   reason  of  a  statute  Ex'x,  20  Fla.  467. 

giving  him   authority  to  determine  725  Georgia    Code    1895,    §§    4818, 

the  amount  which   the  tenant  may  4819. 


AS  COMMENCEMENT  OF  ACTION.  2069 

§  ^44 

OB  property  of  the  debtor  by  the  sheriff  or  constable,  who  shall 
XJh  property,  but  that  "the  party  distrained"  may  make 
oath  that  the  sum  claimed,  or  some  part  thereof,  is  not  due    giv^ 
ing  bond  if  he  desires  a  return  of  the  property,  and  the  levying 
officer  shall  then  make  return  to  the  court.    It  has  been  decided 
that,  under  this  statute,  "a  distress  warrant  is  a  legal  process 
a  mode  of  claiming  a  right  by  a  proceeding  before  a  eourt,     to 
the  extent  that  the  court  cannot  appoint,  as  special  officer,  to  exe- 
cute the  warrant,  one  who,  as  the  landlord's  agent,  made  the 
affidavit  on  which  the  warrant  was  issued.^^«     In  other  ^cases, 
however,  it  is  said  that  it  is  by  reason  of  the  making  of  a     coun- 
ter affidavit"  by  "the  defendant,"  that  is,  the  statutory  oath  that 
the  sum  claimed,  or  a  part  thereof,  is  not  due,  that  the  proceeding 
is  converted  into  a  suit  for  rent,  the  warrant  then  becoming  mesne 
process,^^^  and  that  upon  the  dismissal  of  the  counter  affidavi 
for   any  cause   the   case  passes   out   of  the  jurisdiction   of  the 
court  ^28  so  that  it  cannot  thereafter  dismiss  the  warrant."^-      ihe 
counter  affidavit  is,  sufficient  if  it  alleges  that  the  sum  distrained 
for  or  some  part  thereof  is  not  due,  in  the  words  of  the  statute, 
thouo-h  it  may  aver  special  matters  showing  why  such  sum  is  not 
due  "1     In  either  case  the  defendant  may  introduce  evidence  m 
support  of  his  averments  ^32  and  the  verdict  is  for  the  amount 

T26Flury  V.  Grimes,  52  Ga.  341.       199;    Anders  v.  Blount.   67   Ga.   41; 

72TElam  V.  Hamilton.  69  Ga.  736;    Haines  v.  Chappell.  1  Ga.  App.  480. 
Brooke    v.    Augusta    Warehouse    &    58  S.  E.  220. 

Banking  Co..  119  Ga.  946.  47  S.  E.  -9  Habersham  v.  Eppmger.  61  Ga. 
241-     Swain    v.    Nasworthy,    2    Ga.    199.  ^,,:    no 

Ann  253.  58  S.  E.  492;  Hardy  v.  tso  Feagin  T.  McCowen.  115  Gd. 
Pos's.  20  Ga.  385.  47  S.  E.  947.  "A  325.  41  S.  E.  575;  I>-|?  ^  ^^^X' 
distress  warrant,  in  resistance  to  66  Ga.  174;  Anders  v.  Blount  67  Ga. 
which  no  written  defense  of  any  41;  Girtman  v.  Stanford.  68  Ga. 
M   has  been  interposed,   presents    178;     Hawkins    T.    Collier.    101    Ga. 

TT'Zlts    |T""°"'  ''^;.LnstlT-patterson.   86   Ga. 

^^X\h;  "in'g  o"  a'counter  afh-  725.  13  S.  E.  17.  Hawkins  v.  Collier, 

davit,  no  other  action  will  lie  for  the  101  Ga.  145.  28  S.  E.  632. 

rent,  unless   the  warrant  is   fatally  -.  See  McMahon  v.  Tyson    23  Ga. 

defective.     Chisholm  v.  Lewis  &  Co..  43;   Cranston  v.  Rogers,  83  Ga^  750 

:fGa.  729;  Elam  v.  Hamilton.  69  Ga.  -/^.^.f  ^.."13^^^  ^17;"^: 

''L  Habersham  v.  Eppinger,  61  Ga.  kins  v.  Collier,  101  Ga.  145.  28  S.  E. 


2070  DISTRESS.  I  344 

found  to  be  due.'^^s  ]3y  the  filing  of  the  counter  affidavit,  the 
burden  is  cast  upon  the  plaintiff  of  proving  the  existence  of  the 
relation  of  landlord  and  tenant/^^  and  that  the  sum  alleged  is 
dueJ35 

In  Illinois  the  statute  '^^e  provides  that  the  person  making  the 
distress  shall  file  a  copy  of  the  distress  warrant  under  which  he 
acted,  together  w^ith  an  inventory  of  the  property  levied  on,  with 
a  justice  of  the  peace  or  a  clerk  of  court,  upon  which  the  justice 
or  clerk  shall  issue  a  summons  against  the  party  against  whom  the 
warrant  was  issued,  that  "the  suit"  shall  thereafter  proceed  as 
in  ease  of  attachment,  except  that  the  warrant  shall  stand  for  a 
declaration,  that  if  the  plaintiff'  succeeds  in  his  suit  judgment 
shall  be  given  in  his  favor  for  the  amount  which  shall  appear  to 
be  due,  and  that  if  the  defendant  appears  or  is  personally  sum- 
moned, execution  may  issue  under  such  judgment  against  any 
property  belonging  to  the  defendant,  while  if  he  is  served  by 
publication  merely  and  does  not  appear,  a  special  execution 
shall  issue  against  the  property  distrained  only.  Under  these 
provisions,  a  proceeding  by  distress  warrant  is  regarded  as  a  suit 
for  the  collection  of  rent,'''^'''  and  the  defendant  may  consequently 
be  required  to  file  an  affidavit  of  merits  as  in  ordinary  cases-'^'^s 
Since  the  warrant  stands  as  a  declaration,  evidence  is  not  admis- 
sible unless  it  corresponds  with  the  averments  of  the  warrant,'^39 
and  the  landlord's  recovery  is  limited  to  the  amount  named  in 
the  warrant."^*'  The  judgment  rendered  in  such  a  proceeding  h 
final  and  conclusive  as  to  all  matters  which  should  have  been 
determined  therein.'^^^i 

632;    Feagin    v.    McCowen,    115    Ga.  Cranston  v.   Rogers,  83   Ga.  750,  10 

325,    41    S.    E.    575;     Hunnicutt    v.  S.    E.    364. 

Chambers,  111  Ga.  566,  36  S.  E.  853.  "r  Kurd's  Rev.  St.  1905,  c.  80,  §§ 

The  plaintiff  cannot  give  evidence  16-25. 

that     the     defendant     has     removed  737  Bartlett  v.  Sullivan,  87  111.  219. 

crops  or  other  things  from  the  prem-  t3s  Bartlett    t.     Sullivan,     87     111. 

ises,  if  the  distress  warrant  was  not  219. 

sued   out   on   such   ground.     Holt  v.  739  Vierling  v.  Owens,  64  111.  App. 

Licette,   111   Ga.   810,   35    S.   E.    703.  609;  Bainter  v.  Lawson,  24  111.  App. 

733  Hardy  v.  Boss,  120  Ga.  385,  47  634;  Hill  v.  Coats,  109  111.  App.  266. 
S.   E.  947.  740Kuhl    v.    Mowell,    72    111.    App. 

734  Hancock    v.    Boggus,    111    Ga.  461. 

884,  36  S.  E.  970.  74i  Clevenger  y.   Dunaway,   84   111. 

735Reid    V.    Brinson,    37    Ga.    63;    367. 


§  345  ABANDONMENT.  2071 

In  Texas  the  statute'^^-  provides  that,  on  the  making  of  an 
affidavit  and  the  giving  of  a  bond,  a  justice  of  the  peace  shall 
issue  a  warrant  for  the  seizure  of  defendant's  property,  such  war- 
rant to  be  returnable  to  the  justice  or  to  a  court,  according  to 
the  amount  claimed,  that  the  justice  shall  also  issue  a  citation  "to 
the  defendant,"  requiring  him  to  answer  before  the  justice  or 
before  the  court  to  which  the  warrant  is  made  returnable,  and 
that  the  case  shall  then  be  tried  as  in  ordinary  cases.  It  is 
further  provided  that  if  the  warrant  is  made  returnable  to  a 
court,  the  plaintiff  may  file  his  petition  either  before  suing  out 
the  warrant,  or  on  or  before  the  appearance  day  of  the  term  of 
court  to  which  the  warrant  is  returnable.'^'*^  If  no  petition  is 
filed  as  provided  by  the  statute,  the  proceeding  will,  it  has  been 
held,  be  dismissed."^-*  On  the  other  hand,  the  right  of  the  land- 
lord to  a  judgment  for  rent  is  independent  of  the  legality  of  the 
distress  warrant  and  of  the  truth  of  the  averment  thereof  .'''^^  No 
judgment  can  be  rendered  for  rent  not  due,  although  a  valid  dis- 
tress warrant  could  be  and  was  issued  therefor.^^^ 

§  345.     Abandonment  of  distress. 

The  question  whether  the  landlord  has  abandoned  a  distress 
made  by  him  is  said  to  be  a  question  for  the  juryJ^r  -phe  mere 
quitting  of  possession  of  tlie  goods  distrained  is  not  necessarily 
an  abandonment,''*'^  nor  is  a  delay,  not  unreasonable,  in  regaining 
possession  of  the  goods  after  loss  of  possession  by  forcible  ex- 
pulsion or  exclusion  from  the  premises.'^^^  And  the  fact  that  the 
person  distraining  permitted  the  goods  of  a  stranger,  who  had  no 
notice  of  the  distress,  to  be  removed  from  the  premises  for  a  mere- 

742  Rev.  St.  1895,  §§  3240-3248.  ware  Code   1893,   p.   872,    §    42,   pro- 

743  As  to  the  effect  of  delay  in  fil-  vides  that  no  distress  shall  remain 
ing  the  petition,  see  Bateman  v.  in  force  more  than  sixty  days  from 
Maddox,  86  Tex.  546,  26  S.  W.  51.  the  time  of  making  it,  and  that  the 

744  Jones   V.  Walker,   44   Tex.    203.  property  shall  be  discharged  if  not 

745  Pruitt   V.   Kelley    (Tex.)    15    S.  sold  within  such  time. 

W.  119.  74S  Bannister  v.  Hyde,  2  El.  &  El. 

746  Miller  v.  Lancaster  (Tex.  Civ.  627;  Swann  v.  Falmouth,  8  Barn.  & 
App.)  41  S.  W.  198.  C.    456. 

747  Eldridge  v.  Stacey,  15  C.  B.  749  Bannister  v.  Hyde,  2  El.  &  El. 
(N.  S.)  458.  See  Bagshawos,  Lim-  631;  Eldridge  v.  Stacey,  15  C.  B. 
ited  V.  Deacon  [1898]  2  Q.  B.  173;   2  (N.   S.)    458. 

Freeman,   Executions,   §   271.     Dela- 


2072  DISTRESS.  §  346 

\y  temporary  purpose,  they  being  involuntarily  returned,  was  held 
not  to  involve  an  abandonmentJ^° 

The  landlord  may,  it  seems,  in  effect  abandon  the  distress  as  to 
particular  goods  in  favor  of  a  particular  person,  by  conduct  cal- 
culated to  mislead  such  person,  as  when  he  permits  the  goods 
distrained  to  remain  on  the  demised  premises  an  unreasonable 
time,  and  they  are  purchased  bona  fide  by  another,  without  knowl- 
edge of  the  landlord's  claim J^^ 

§  346.    Wrongful  and  irregular    distresses — Semedies. 

a.  Rescue.  At  common  law,  if  a  distress  is  illegal,  and  not 
merely  excessive  or  irregular,  the  owner  of  the  chattels  wrongfully 
seized  may  rescue  them  at  any  time  before  the  impounding,'^^- 
but  he  cannot  do  this  after  the  impounding,  since  they  are  then 
in  the  custody  of  the  law.''^^^  If,  however,  the  distrainor  himself 
takes  the  chattels  out  of  the  pound  for  the  unlawful  purpose  of 
using  them,  the  owner  may  retake  possession  without  incurring 
any  liability.'^^^ 

b.  Replevin — (1)  Proceedings  at  common  law.  Replevin  is 
a  process  by  which  the  owner  of  goods  taken  by  another  obtains 
their  redelivery  to  him  upon  giving  security  to  try,  in  an  action 
subsequently  to  be  brought  by  him,  the  right  to  the  goods,  and  to 
restore  them  if  the  right  be  adjudged  against  him.  The  remedy 
is  not  confined  to  cases  of  taking  by  way  of  distress,  but  it  has 
been  most  frequently  utilized  in  that  connection. 

By  the  statute  of  Marlebridge  (52  Hen.  3,  c.  21),  the  sheriff  was 
given  jurisdiction  to  grant  replevin,  without  resort  to  chancery 
for  a  writ,  and  by  that  of  Westminister  the  second  (13  Edw.  1, 
e.  2)  it  was  provided  that  "sheriff's  shall  not  only  receive  of  the 
plaintiffs  pledges  for  the  pursuing  of  the  suit,  before  they  make 
deliverance  of  the  distress,  but  also  for  the  return  of  the  beasts, 
if  return  be  awarded."  By  St.  11  Geo.  2,  c.  19,  §  23,  the  sheriff 
was  required  to  take  in  his  own  name,  from  the  plaintiff  and  two 
responsible  persons  as  sureties,  "a  bond  in  double  the  value  of  the 

TBOKerby  V.  Harding,  6  Exch.  234.  753  Co.    Litt.    47    b;    Cotsworth    v. 

7fii  Lamotte  v.  Wisner,  51  Md.  543.  Betison,  1  Ld.  Raym.  104;    Cadmua 

T52  Co.   Litt.   47    b,    161   a;    Bevil's  v.  Barney,  42  N.  J.  Lav.',  346. 

Case,  4  Coke,  11  b;    Com.  Dig.  Dis-  754  Smith  v.  Wright,  6  Hurl.  &  N. 

tress   (D  5).  821. 


§  346  REMEDIES  FOR  WRONGFUL,  DISTRESS.  2073 

goods  distrained,  and  conditioned  for  prosecuting  the  suit  with 
effect  and  without  delay,  and  for  duly  returning  the  goods  and 
chattels  distrained  in  case  a  return  of  the  goods  shall  be  awarded," 
and  it  was  further  provided  that,  if  the  bond  was  forfeited,  the 
sheriff  should  assign  it  to  the  distrainor,  at  his  request,  that  the 
latter  might  sue  thereon  in  his  own  name. 

The  remedy  of  replevin  is,  at  common  law,  available  when  the 
distress  or  taking  is  absolutely  illegal  as  regards  all  of  the  goods 
or  part  of  them.  If  the  distress  is  illegal  as  to  part  of  the  goods 
only,  they  alone  are  a  proper  su])ject  for  the  replevin.  In  ae 
eordance  with  the  above  statement,  it  lies  when  there  is  no 
relation  of  landlord  and  tenaut,'^55  qj.  ^q  certain  rent  was  re- 
served,756  or  no  rent  is  due,"^"  or  none  due  to  the  person  distrain- 
ing,''58  oj.  thg  pgQi-  ^^g  tendered  before  the  impounding,'^59  q^ 
the  entry  was  illegal,'^^*^  or  things  not  subject  to  distress  were 
seized.'^^i  An  excessive  distress  is  not  absolutely  illegal,'^<52  a^^] 
it  is  consequently  not  ground  for  replevin.^cs  nor  does  a  distress 
become  so  illegal  by  reason  of  irregular  acts  in  the  course  of  the 
proceedings,  except  in  the  few  jurisdictions  where  such  irregular- 
ities render  it  a  trespass  ah  initioJ'^^ 

The  proceeding  is  available  to  the  owner  of  the  goods  seized, 
without  reference  to  whether  he  is  the  tenant. ^^5 

The  effect  of  the  giving  of  the  replevy  bond  is  to  relieve  the 
things  distrained  from  the  lien  created  by  their  seizure,  to  en- 
able their  owner  to  sell  or  incumber  them,  and  to  leave  them  free 
to  be  subjected  to  the  satisfaction  of  creditors  generally.'^ ^^ 

T55  Walker  v.  Giles,  6  C.  B.  662.  t63  oidham  &  Foster,  Distress   (M 

756Hegan    v.    Johnson,    2    Taunt.  Ed.)    346;    Woodfall,  Landl.   &  Ten. 

148;  Dunk  v.  Hunter,  5  Barn.  &  Aid.  (16th  Ed.)   539;  Whitcomb  v.  Brant 

322;   Regnart  v.  Porter,  7  Bing.  451.  (N.  J.  Law)    68  Atl.  1102;   Whitney 

757  Davis   V.    Gyde,    2    Adol.    &    E.  v.  Carle,  47  Ky.   (8  B.  Men.)    171. 
623;  Cooper  v.  Robinson,  10  Mees.  &       7«4  See  Jimison  v.  Reifsneider,  97 
W.  694.  Pa.  136. 

758  Downs  V.  Cooper,  2  Q.  B.  256.  765  Co.  Litt.  145  b;  OJdham  v.  Fos- 

759  Evans  v.  Elliott,  5  Adol.  &  B.  ter.  Distress  (2d  Ed.)  348;  Peacock 
142;   Hilson  v.  Blain,  2  Bailey  Liaw  v.  Purvis,  2  Brod.  &  B.  362. 

(S.  C.)   168.     See  ante,  §  329  b.  7Ge  Bradyll  v.  Ball,  1  Brown's  C.  C. 

7«o  Tunnicliffe   v.    Wilmot,    2    Car.  427:    Speer  v.   Skinner,   35   111.   282; 

^  ^-  ^26.  Woglam    v.    Cowperthwaito.    2    Dall. 

761  Raton  v.   Southby,  Willes,  131.  (Pa.)  68:  .Timipon  v.  Roif.sneidpr.  97 

782  See  post,  at  note  748.  Pa.   136.     But  in  Harris  v.  Clayton, 


2074  DISTRESS.  §  346 

At  common  law,  the  goods  having  been  delivered  to  the  tenant 
or  other  person  claiming  them,  upon  his  execution  of  the  replevy 
bond,  it  remains  for  him  to  bring  an  action  of  replevin  to  try 
the  legality  of  the  distress.  The  defendant  in  this  action,  the 
distrainor,  then  makes  "avowry"  or  "cognizance,"  the  former 
being  a  justification  by  the  distrainor  in  his  right,  as  landlord, 
of  the  seizure  of  the  goods,  the  latter  term  applying  to  a  justifica- 
tion by  the  defendant  as  bailiff  of  another.  The  avowrj'  or  cogniz- 
ance is  in  the  nature  of  a  declaration,  to  which  the  plaintiff  in  re- 
plevin must  plead  as  if  he  were  in  the  position  of  a  defendant.'^^'^ 
In  some  of  the  states,  no  doubt,  the  introduction  of  new  methods 
of  pleading  has  rendered  the  common-law  rules  in  reference  to 
avoweries  obsolete,  as  they  are  by  reason  of  modern  legislation 
in  England. 

(2)  Local  statutory  changes.  The  common-law  right  of  the 
tenant,  or  other  owner  of  the  things  distrained,  to  "replevy" 
them,  that  is,  to  obtain  their  redelivery  to  him  by  giving  a  bond 
to  try,  in  an  action  subsequently  to  be  brought  by  him,  the  right 
of  distress,  and  to  restore  them  if  such  right  be  adjudged  against 
]]im,  is  recognized  by  statute  in  several  of  the  states  in  which  the 
right  of  distress  still  exists,'^^^  in  some,  however,  subject  to  restric- 
tions which  did  not  exist  at  common  law.  In  three  states  the 
right  to  replevy  is  apparently  confined  to  the  tenant  himself,  a 
third  person  claiming  the  goods  being  remitted  to  proceedings  of 
another  character  i'^'^^  and  in  one  state  the  right  exists  only  in 
case  the  tenant  makes  oath  that  the  sum  claimed,  or  a  part  there- 

1   McMul.    (S.   C.)    194,  it  was   held  §    2310;    New  Jersey,   1   Gen.   St.    p. 

that  the  lien  of  the  distress  on  the  1208,    §    6;    Pennsylvania,   Pepper   & 

goods  replevied  is  prior  to  the  gen-  Lewis'   Dig.   Laws,  "Landl.  &  Ten." 

eral  lien  of  an  execution  issued  but  §§  11,  24;   South  Carolina  Civ.  Code 

not  levied.  1902,  §   2435.     In  several  states  the 

The    statutory   lien   for   rent   was  statutes  contain  more  or  l«8s  elabor- 

held  not  to  be  released  by  the  giv-  ate  provisions  as  to  the  practice  in 

ing  of  the  statutory  bond  to  pay  the  replevin.     See   Delaware   Rev.    Code 

judgment   for   rent  which  might  be  1893,  p.  872,  §§  46-51;  Illinois.  Kurd's 

recovered  in  a  proceeding  begun  by  Rev.    St.    1905,    c.    119;    Mississippi 

distress.     McEvoy  v.  Niece,  20  Tex.  Code   1906,    §§    2845-2847.    2856-28/1; 

Civ.  App.  686,  50  S.  W.  424.  New    Jersey,    3    Gen.    St.    pp.    2770- 

767  3  Blackst.  Coram.  149;  Woodfall,  2778. 

Landl.  &  Ten.  (10th  Ed.)  c.  21.  i<i^  Florida  Gen.  St.  1906,   §   2246; 

768  See    Illinois,    Kurd's    Rev.    St.    Gcorqin    Code    1895,    §§    4819,    4820; 
1905,  c.  80,  §  21;  Kentucky  St.  1903,    Texas  Rev.  St.  1895,  §  3244. 


§  346  REMEDIES  FOR  WRONGFUL  DISTRESS.  2075 

of,  is  not  dTie."o  The  replevy  proceeding  in  this  latter  state  is 
ordinarily  referred  to  in  the  eases  as  one  by  "counter  affi- 
davit, "^zi  Tj^^  counter  affidavit  is  sufficient  if  it  alleges,  as  pro- 
vided by  the  statute,  that  the  sum  distrained  for,  or  some  part 
thereof,  is  not  due.^72  if  jj^o^e  specific  allegations  are  made,  as 
to  the  existence  of  particular  counterclaims,  evidence  as  to  other 
counterclaims  has  been  held  to  be  inadmissible.'^a 

In  two  states  the  statute  provides,  in  lieu  of  the  common-law 
right,  that  the  officer  levying  a  distress  may  release  the  goods 
on  obtaining  a  "forthcoming  bond"  from  the  debtor ;"4  and  in 
others  the  statute,  without  undertaking  to  abolish  the  remedy  of 
replevin  as  it  existed  at  common  law,  provides  for  the  giving 
of  a  bond  conditioned,  not  to  try  the  right  to  the  property  dis- 
trained, but  to  pay  the  value  of  such  property,  or  to  pay  the  sum 
ascertained  to  be  due  by  the  tenant  J^s 

At  common  law  a  third  person  has,  to  the  same  extent  as  a 
tenant,  a  right  to  assert  by  replevin  that  goods  belonging  to  him 
have  been  illegally  seized  under  distressJ^e  i^  several  states 
the  statute  provides  in  addition  to  or  in  substitution  for  the  com- 
mon law  remedy  in  favor  of  such  person  a  proceeding  of  "claim 
and  delivery,"  or  some  other  proceeding  framed  for  the  pur- 
pose of  enabling  a  third  person  to  intervene  in  case  of  the  seizure 
of  his  property  under  execution  or  other  proces^JT? 

c.  Injunction.  An  illegal  distess  is  a  trespass,  and  an  injunc- 
tion to  prevent  a  distress  would  ordinarily  issue,  it  seems  only 
under  circumstances  which  might  justify  such  remedy  to  prevent 

TTo  Georgia  Code  1905,  §  4819.    See       tts  See  ante,  at  note  665 
Huckaby  y.  Brooks,  75  Ga.  678.  .i.  Florida  Gen.   St.   IOOg'  ?  2^46- 

771  See  ante,  at  note  627.  ^         .    ^  '  ^  ' 

TT2  Anders   v.    Blount,   67    Ga.    41;  ^^^'"^^^  Code  1895,  §  4820;  Kentucky 

White  V.  Mandeville,  72  Ga.  705.  ^^^'    ^°^®'    ^    ^^^'     ^^^^    ^ev.    St. 

773Hunnicutt     v.     Chambers,     111  ^^^5-  ^^^s.  5286-5312  ("trial  of  right 

Ga.  566,  36  S.  E.  853.  ^^  property");    Yirginia  Code   1904, 

■TT^  Virginia    Code    1904,    §    3617;  5?;  2998-3005;  We.sf  Firortwta  Code,  §§ 

West  Vircfinia  Code.  §  4188.  3573-3579.     In   Georgia  a   third    per- 

■'■'^  Florida  Gen.  St.  1906,  §   2242;  ^on  cannot  claim  the  goods  upon  the 

Georgia  Code  1895,   §  4819;    Illinois  ground    that      the   distress   warrant 

Rev.  St.  1905,  c.  80,  §  26;  Kentucky  was    sued    out    on    false    averments. 

Civ.   Code,    §    653:    Mi'^fiatippi    Code  Home  v.   Powell,  S8  Ga.   637,  15   S 

1906,    §§    2845-2S47;    Texas   Rev.    St.  E.    688. 
1895,  §   3244. 


2076  DISTRESS.  §  346 

an  ordinary  trespass.  There  are  a  number  of  cases  in  which 
such  relief  has  been  refused.^s  An  injunction  has  issued,  how- 
ever, upon  the  application  of  a  lessee,  to  prevent  a  distress  upon 
his  numerous  subtenants  for  rent  alleged  to  have  been  paid;^^® 
and  an  injunction  has  likewise  issued,  apparently,  when  the  lease 
was  accepted  by  reason  of  fraudulent  representations  by  the 
lessorjso 

d.  Action  for  damages— (1)  Distress  when  no  tenancy  exists. 
Since  the  right  of  distress  exists  only  when  the  relation  of  ten- 
ancy exists,'^^!  a  distress  made  when  such  is  not  the  case  is  a 
naked  trespass,  giving  the  person  whose  rights  of  property  are 
thus  invaded  a  right  to  recover  damages  as  in  any  other  case  of 
trespass.  The  common-law  remedy  would  be  an  action  of  tres- 
pass,'^82  but  trover  will  also  lie,  it  seems.'^^s 

(2)  Distress  when  no  rent  due.  Even  though  the  other  pre- 
requisites of  a  distress  exist,  the  distress  is,  in  the  absence  of  a 
statutory  provision  to  the  contrary,  illegal  unless  the  rent  dis- 
trained for  is  duej^S'*  and  the  person  making  a  distress  for  rent 
when  no  rent  is  due  is  liable  at  common  law  in  an  action  of  tres- 
pass,^85  or,  it  seems,  in  an  action  of  case  ^^^  or  trover.'^^y     xhat 

778  Hughs   V.    Ring,   1   Jac.    &   W.  had  induced  the  plaintiff  in  the  re- 

S92;    Carter   v.   Salmon,   43  Law  T.  plevin  suit  to  pasture  on  the  demised 

(N.  S.)  490;  Crow  v.  Wood,  13  Beav.  premises  for  one  night  on  their  way 

271;    Homan  v.   Moore,   4   Price,   5;  to  market. 

Leopold  V.  Judson,  75  111.  53(5 ;  Banks  tsi  See  ante,  §  326  a. 

V.    Busey,    34    Md.    437;    Davis    v.  782  Yates  v.  Tearle,   6   Q.   B.    282; 

Payne's  Adm'r,  4   Rand.    (Va.)    332.  Staneley  v.  Allcock,  IG  Q.  B.  636. 

770  Colt  V.  Horn,  1  Sandf.  Ch.  (N.  783  Shipwick  v.  Blanchard,  6  Term 

y.)    1.     But  that  an  injunction  will  R.  298. 

not   issue   on   the    application    of   a  784  See  ante,  §  333  a. 

landlord   to   restrain   a   distress   on  785  Ireland  v.  Johnson,  1  Bing.  N. 

his  tenant  by  a  third  person  wrong-  C.  162;  Lockier  v.  Paterson,  1  Car.  & 

fully  asserting  the  rights  of  a  land-  K.  721;  Rees  v.  Emerick,  6  Serg.  & 

lord    as    against    such    tenant,    see  R.  (Pa.)  286;  Fretton  v.  Karcher,  77 

Best  v.  Drake,  11  Hare,  369;   Aldis  Pa.    423;    dinger   v.    McChesney,    7 

V.  Eraser,  15  Beav.  215.  Leigh  (Va.)  660. 

780  0gden  v.  Duffy,  59  111.  APP-  120.  In  Virginia  (Code  1904,  §  2898) 
In  Fowkes  v.  Joyce,  2  Vern.  129,  an  and  West  Virgin!^.  (Code  1906,  § 
injunction  was  issued,  on  the  3486)  it  is  provided  that  if  prop- 
ground  of  fraud,  to  restrain  the  en-  erty  be  distrained  for  any  rent  not 
forcement  of  a  judgment  for  the  due,  the  ovmer  may.  in  an  action 
landlord  in  replevin  for  cattle  dis-  nrrn lust  the  party  suing  out  the  war- 
trained,    which    cattle   the   landlord  rant    of    distress,    recover    damages 


^  346  REMEDIES  FOR  WRONGFUl,  DISTRESS.  207? 

rent  falls  due  between  the  time  of  the  distress  and  the  sale  is  no 
defense  to  such  actionJ^s 

A  distress  to  recover  sums  due  other  than  rent  is  invalid,  in 
the  absence  of  statutory  authority  or  express  stipulations  to 
the  contraryjso  Consequently,  the  person  making  a  seizure  for 
such  a  purpose  is  liable  in  damages  to  the  same  extent  as  any 
other  person  who  wrongfully  enters  on  another's  property  and 
seizes  goods  thereon. 

It  was  provided  by  the  English  statute  2  "W.  &  M.  sess.  1,  c.  5, 
that  in  case  a  distress  and  sale  be  made  for  rent  pretended  to  be 
in  arrear  when  no  rent  is  in  arrear  or  due,  the  owner  of  the  chat- 
tels distrained  may  recover  double  their  v^''ie,  with  the  costs  of 
suit.  This  statute  has  been  substantially  re-enacted  in  a  few 
states.'^^^^  The  English  statute  imposes  the  liability  upon  the 
person  distraining,  as  does  that  of  two  of  the  states,'^^!  while  in 
one  state  the  statute  imposes  it  upon  the  person  "suing  out"  the 
distress,'''^^  ^nd  in  one  upon  the  person  "in  whose  name  or  right 
the  property  is  taken.  ""^33  j^  jj^s  been  held  that  where  the  stat- 
ute imposed  the  liability  on  "the  person  distraining,"  a  constable 
could  not  relieve  himself  from  liability  thereunder  by  showing 
that  he  acted  under  warrant  from  the  landlord.''''^* 

Such  a  statute  obviously  does  not  apply  in  favor  of  a  stranger 
merely  because  his  property  was  levied  on  though  exempt  ;'^^^  and 

for  the  wrongful   seizure,  and  also,  damages) ;   Mississij/pi  Code  1906,   § 

if  the  property  be  sold,  for  the  sale  2855   (double  value  of  property  tak- 

thereof.  en) ;  HJew  Jersey,  1  Gen.  St.  p.  12(ja, 

786  Olinger  v.  McChesney,  7  Leigh  §  11 ;  Pennsylvania,  Pepper  &  Lewis' 
(Va.)     660;     Smith    v.    Goodwin,    4  Dig.  Laws,  "Landl.  &  Ten."  §  13. 
Barn.   &  Adol.   413;    Lear   v.   Calde-  79i  See  the  statutes- of  New  Jersey 
cott,  4  Q.  B.  123.     See  bKidmore  v.  and   Pennsylvania. 

Ensign,  29  Ky.  (6  J.  J.  Marsh.)  577.  Toa  See  the  Kentucky  statute. 

787  Hugill  V.  Reed,  49  N.  J.  Law,  Tea  gee  the  Mississippi  statute, 
300,  8  Atl.  287.  See  Lear  v.  Calde-  The  Delaware  statute  imposes  the 
cott,  4   Q.  B.   123.  liability     upon    the    person     "upon 

788  Evans  t.  Herring,  27  N.  J.  Law,  whose  demand  the  distress  is  made." 
243.  Aliter  when  the  action  is  un-  794  Wells  v.  Hornish,  3  Pen.  &  W. 
der  the  statute.  See  post,  at  notes  (Pa.)  30;  Fretton  v.  Karcher,  77  Pa. 
697-698.  423.     But  see   Mitchell  v.   Franklin, 

789  See  ante,   §  327.  26  Ky.    (3  J.  J.  Marsh.)   477. 

too  Delaware  Rev.  Code  189,?,  p.  795  Y7ard  v.  Beatty,  41  Ky.  (2  B. 
871,  §  37;  Kentucky  St.  1903,  §  2^72  Mon.)  260;  T-Iartsbome  v.  Kierman, 
(or    if    property    not    sold,    double   7  N.  J.  Law   (7  Halst.)   29. 


2078  DISTRESS.  §  346 

so  far  as  it  may  in  terms  apply  only  when  the  rent  is  "pretended" 
to  be  in  arrear,  it  is  not  applicable  when  the  distress  is  based  on 
allegations  that  the  tenant  is  removing  his  property  in  order  to 
avoid  payment  of  rent  subsequently  to  become  dueJ°^  That  a 
proper  affidavit  was  made  for  a  distress  warrant  did  not  render 
the  statute  applicable,  it  has  been  held,  when  the  justice  issued 
an  ordinary  attachment  thereon  and  the  parties  so  treated  the 
proceedings^''' 

By  the  ordinary  language  of  these  statutes,  double  value  is 
recoverable  only  if  the  sale  as  well  as  the  seizure  is  made  when  no 
rent  is  due. 

Such  a  statute  has  been  held  not  to  apply  if  any  rent  is  due, 
although  there  is  no  right  to  distrain  for  such  rent,''^^  or  when 
there  is  no  rent  due  because  none  was  reserved.'^^^  And  it  has 
been  decided,  by  reason  of  the  specific  reference  in  the  statute  to 
the  sale  of  the  goods,  not  to  apply  when  rent  fell  due  between  the 
time  of  the  distress  and  that  of  the  salc^^*^ 

In  order  to  support  a  recovery  under  the  statute,  the  declara- 
tion or  complaint  must  declare  thereunder^'^i  The  tenant  is  not 
confined  to  a  proceeding  under  this  statute  but  may  bring  an  ac- 
tion at  common  law,^'^^  and  by  so  doing  he  may  possibly  recover 
more  than  he  could  under  the  statute.^^^  He  cannot,  it  has  been 
decided,  recover  in  one  action  double  the  value  of  the  chattels  dis- 
trained, and  also  damages  for  injury  to  his  business.^*'^ 

In  case  a  distress  proceeding  is  instituted  for  rent  not  due,  on 
false  allegations  that  the  tenant  is  removing  or  about  to  remove 

796Kyzer    v.    Middleton,    61    Miss,  cher,  77  Pa.  423;   Royse  v.  May,  93 

360.  Pa.  454. 

T97  Hawkins  v.  James,  69  Miss.  361,  so2  Hugill  v.   Reed,  49  N.   J.  Law, 

11  So.  6.54.  300,  8  Atl.  287;   Rees  v.  Emerick,  6 

798  Peters  v.  Newkirk,  6  Cow.   (N.  Serg.  &  R.  (Pa.)  286;  Thomas  v.  Gib- 

Y.)    103.  ^ons,  21  Pa.  Super.  Ct.  635.  In  the  first 

T99  McCaskill  v.  Rodd,  14  Ont.  2S2.  cited  case  it  was  held  that  the  claim 

Contra,  Mitchell  v.  McDuffy,  31  U.  C.  for  double  damages  was  not  waived 

C.  P.  2fi'j,  649.  because  a  count  at  common  law  was 

800  Fry  v.  Breckinridge,  46  Ky.   (7  added,  though  there  could  not  be  a 
B.    Men.)    31;    Weber   v.    Loper,    16  recovery  under  both. 
MontnroTnpry  Co.  Rep.  (Pa.)   70.  sos  See   Rees  v.    Emerick,    6   Serg. 

801  Bell  V.  Norris,  79  Ky.  48;   Car-  &  R.    (Pa.)   286. 

nett  V.    .Jennings,  19  Ky.  Law  Rep.        f^"*  HuitIII  v.   Reed,   49   N.  J.   Law, 
1712,  44  S.  W.  382;   Fretton  v.  Kar-    300,  8  Atl.  287. 


§  346  REMEDIES  FOR  WRONGFUL  DISTRESS.  2079 

his  goods,  the  tenant  would  have,  in  some  jurisdictions,  it  seems, 
a  right  to  recover  actual  damages  without  reference  to  whether 
the  averments  in  this  regard  were  made  maliciously  and  without 
probable  cause,805  while  in  some  there  would  be  no  right  of  re- 
covery except  on  a  showing  of  malice  and  Mant  of  probable 
cause.^*'^ 

(3)  Seizure  or  sale  after  tender.  As  before  stated,«07  the  levy 
of  a  distress  after  tender  of  the  rent  due  is  illegal,  as  is  the  de- 
tention or  removal  of  the  goods  after  tender  of  the  rent  and  costs 
of  distress,  when  the  tender  is  made  after  the  levy  or  seizure. 
The  tenant  is  entitled  to  recover  damages  for  such  illegal  acts^os 
in  an  action  of  trespass  or  trespass  on  the  case.^o^  That  the 
amount  of  the  rent  and  costs  were  tendered  after  levy,  while  it 
renders  the  subsequent  detention  or  removal  of  the  goods  illegal, 
does  not  affect  the  validity  of  the  original  levy.^io  If  a  tender 
of  the  rent  and  costs  be  made  after  the  impounding,  the  landlord 
is  not,  at  common  law,  under  any  obligation  to  accept  it,8ii  but  he 
is,  it  has  been  decided,  by  reason  of  St.  2  W.  &  11.  sess.  1  c.  5 
liable  in  damages  if  after  such  tender  he  proceeds  to  sell  the  goods 
di.strained.8i2  That  the  landlord  accepts  a  tender  after  the  im- 
pounding, but  refuses  to  return  the  goods,  does  not  make  him 
liable  as  a  trespasser,  though  he  may  be  liable  in  trover. si^ 

(4)  Distress  on  property  not  subject.  If  a  distress  is  made 
on  chattels  which  are  not  subject  to  distress,  the  person  distrain- 
ing is  liable  as  a  trespasser,  as  regards  such  chattels,^!^  or  he  may 

805  See  post,  §  351,  as  to  the  analo-       soo  Branscomb  v.  Bridges,  1  Barn 

gous  case  of  a  wrongful  attachment,  &  C.  145;   Holland  v.  Bird,' 10  Bin- 

and  also  4  Cyclopedia  Law  &  Proc.  15;    Richards    v.    McGrath',    100    Pa 

832,    with    reference    to    the    same  S89. 

^"^^'^^^'  ^    .  '"Six    Carpenters'   Case    8    Coke 

800  Such    is    the   rule   in    Georgia,  -.^r  „.  xr^n^^        ^.  ,       '                ' 

„,       .          „  -146  a,  Holland  v.  Bird    10  Bine-   if; 

Sturgis  V.  Frost,  56  Ga.  188;  Wilcox  '           "^^-  ^°- 

V.  McKenzie,  75  Ga.  73.  "^  ^^'^   Carpenters'   Case,   8    Coke, 

807  See  ante,  §  329  b.  ^^^  ^'   ^^^^  ^-  Thomas,  12  Adol.  & 

808  Six   Carpenters'    Case,    8   Coke,    ^-  ■^■^^• 

146    a;'    Branscomb    v.    Bridges,     1  ^^^  Johnson  v.  Upham,  2  EI.  &  El. 

Barn.  &  C.  145;  Holland  v.  Bird,  10  250,    overruling    Ellis    v.    Taylor,    8 

Bing.  15;    Evans   v.  Elliott,   5  Adol.  Mees.    &   W.    415;    Richards    v.    Mc- 

&  E.  142;   Loring  v.  Warburton,  El.  Grath,  100  Pa.  389. 

Bl.  &  El.  507;   Vertue  v.  Bep.sley,  1  sis  West  v.  Nil)bs,  4  C.  B.  772. 

Moody  &  R.  21;   Newell  v.  Clark,  46  si*  Pitt   v.    Shew,    4    Barn.    &    Aid. 

N.  J.  Law,  363,  377;  Davis  v.  Henry,  206;  Nargett  v.  Nias,  1  El.  &  El.  439; 
63   Miss.   110. 


2080 


DISTRESS.  §  346 


be  made  liable  in  an  action  of  trover,^!^  or  of  case.8i«  That  he 
thus  distrains  chattels  which  are  not  liable  obviously  does  not 
make  the  distress  illegal  as  to  chattels  distrained  which  are  lia- 
ble.817 

So  far  as  concerns  goods  which  are  exempt  from  distress  be- 
cause not  belonging  to  the  tenant,  it  has  been  decided  in  the  state 
of  Mississippi,  on  a  construction  of  the  local  statute,  that  the 
owner  must  assert  his  claim  before  sale  by  the  giving  of  a  replevy 
bond,  and  that  if  he  fails  so  to  do  he  has  thereafter  no  right  of 
action  for  damages  ;8i8  and  in  Pennsylvania  also  it  has  been 
held  that  if  the  landlord  levies  upon  goods  which  are  exempt  as 
having  been  merely  consigned  to  or  stored  with  the  tenant,  the 
owner  of  the  goods  should  interpose  his  claim  by  replevin  before 
sale,  if  he  has  notice  of  the  seizure  and  this  was  made  by  the 
landlord  in  ignorance  of  the  true  ownership  of  the  goods,^!^ 
though  the  landlord  is  there  liable  in  trespass  if  he  knows  who 
owns  the  goods  and  proceeds  with  the  sale  without  giving  the 
owner  an  opportunity  to  replevy.^^o 

(5)  Irregularities  in  entry  or  seizure.  Although  circumstances 
exist  which  justify  a  distress,  if  an  entry  or  seizure  is  made  at  an 
illegal  hour,82i  or  oif  the  premises,  when  this  is  not  allowable,8=2 
or  if  the  entry  or  seizure  is  improperly  made  by  reason  of  the 
breaking  of  doors  or  other  employment  of  force,823  the  person 

Harvey   v.   Pocock,    11   Mees.   &  W.  Paine  v.  Hall  Safe  &  Lock  Co.,   64 

740_                             '  Miss.  175,  1  So.  56. 

815  Dalton  V.  Whittem,  3  Q.  B.  961;  Ris  Coldcleugh  v.  Hollingsworth,  8 

Gisbourn    v.    Hurst,    1    Salk.    249;  Watts  &  S.  (Pa.)  302;  Esterly  Mach. 

Simpson    v.    Hartopp,    Willes,    512;  Co.  v.  Spencer,  147  Pa.  466,  23  Atl. 

Swire  V.  Leach,  18  C.  B.  (N.  S.)  479;  774;    Lengert  Co.   v.  x^ellevue  Bldg. 

Huskinson  v.  Lawrence.  26  U.  C.  Q.  &  Loan  Ass'n,  15  Pa.  Super.  Ct.  380. 

B.  570;  Hall  v.  Amos,  21  Ky.   (5  T.  ^^^  Brown   v.   Stackhouse,   155  Pa. 

B.  Mon.)    89.  17  Am.  Dec.  42;    Con-  ^82.    26    AU.    669,    35    Am^    St    Rep. 

nah  V.  Hale,  2Z  Wend.   (N.  Y.)    462.  ^08;     Toledo    Tmware    Mfg.    Co.    v. 

.,  T^i    o  T^i    ^OQ.  I^uff.  15  Pa.  Super.  Ct.  383. 

8X6  Nargett  v.  Nias,  1  El.  &  El  439  ^^^  ^^^^^^^  ^    ^^^^^  ^  ^^^^    ^  ^, 

Connah  v.  Hale,   23  Wend.    (N.  Y.)  g^^.   gherman  v.  Dutch.  16  111.  283. 
462;     Parkerson     v.     Wightman,    4       822  Tharpe  v.  Stallwood,  5  Man.  & 

Strob  Law  (S.  C.)    363.  q    760 

817  Nargett  v.  Nias,  1  El.  &  El.  S23  Brown  v.  Glenn,  16  Q.  B.  254; 
439;  Harvey  v.  Pocock,  11  Mees.  &  Moore  v.  Drlnkwater,  1  Fost.  &  F. 
W.  740.  134;   Attack  v.  Bramwell,  3  Best    & 

818  Gibson   v.  Lock,  58  Miss.   298;  S.  520. 


g  346  REMEDIES  FOR  WRONGFUL  DISTRESS.  2081 

taking  the  distress  is  liable  as  a  trespasser  ah  initio.  And  so  if  he 
seizes  goods  exempt  from  distress  he  is  a  trespasser  as  regards 
those  goods,  though  not  as  regards  goods  seized  therewith  which 
are  not  exempt.^24 

(6)  Second  distress.  The  levy  of  a  second  distress  for  the 
same  rent,  when  enough  might  have  been  taken  on  the  first  dis- 
tress to  satisfy  the  landlord's  demand,  is  ordinarily  wrongfuF--'^ 
and  constitutes  a  trespass.^^e  Instead  of  suing  in  trespass  the 
tenant  may,  if  he  choose,  bring  trover,^^'^  or  case.^^s 

(7)  Excessive  distress.  It  was  provided  by  the  statute  of 
Marlebridge^29  ^^at  distresses  shall  be  reasonable  and  not  too 
great,  and  that  "he  that  taketh  great  and  unreasonable  dis- 
tresses shall  be  grievously  amerced  for  the  excess  of  such  dis- 
tress." This  statute  is  in  force  in  some  states,83o  and  there  are 
in  others  statutes  of  a  somewhat  similar  nature,  imposing  lia- 
bility upon  person  making  an  excessive  distress  for  all  damage 
caused  by  its  excessive  character.^^i 

It  is  only  necessary,  in  order  to  avoid  any  liability  as  for  an 
excessive  distress,  that  the  person  distraining  exercise  a  reason- 
able and  honest  discretion,832  and  it  has  been  said  that  no  liabil- 
ity exists  if  the  excessive  character  of  the  distress  results  from  a 
mere  mistake  of  judgment  or  a  lack  of  knowledge  of  the  amount 
of  rent  due. ^2* 

824  Harvey  v.  Pocock,  11  Mees.  &  ^^i  Delaware  Rev.  Code  1893,  p. 
W.  740;  Nargett  v.  Nias,  1  El.  &  El.  869,  §  24  (liable  in  action  on  the 
439.  case);     Mississippi     Code     1906,     § 

825  See  ante,  §  330.  2853    (officer  liable   in  double   dam- 
820  Smith  V.   Goodwin,   4   Barn.   &    ages);   New  Jersey,   1     Gen.   St.  p. 

A^°^-   "^l^.  1207,  §  1;  South  Carolina  Civ.  Code, 

827  Smith  V.   Goodwin,   4  Barn.   &    g  3434      j^   Virginia    (Code  1904,   ^ 

Adol.   413. 


1315)  and  West  Virginia  (Code  1906, 
§  905)  it  is  merely  provided  that  the 
officer  shall  in  no  case  make  an  un- 


82RLear  v.  Caldecott,  4  Q.  B.  123; 
Dawson  v.  Cropp,  1  C.  B.  961. 

829  52  Hen.  3,  c.  4   (anno  1267). 

Bzo  Maryland       (see      Alexander's   reasonable  distress  or  levy. 
British    Statutes    In   force   in    Mary-        «32  Roden  v.   Eyton.  6   C.   B.   427; 
l;ind);    Pennsylvania     (see    McKin-   Weber  t.  Vernon,  2  Pen.  (Del.)  359. 
ney  v.  Reader,   6  Watts   [Pa.]    84);     45    Atl.    537.       See    Willoughby    v. 
and  semble  in  Illinois  (see  Hare  v.    Backhouse,  2  Barn.  £  C.  823. 
Stegall,  60  111.  380;  Lindley  v.  Mil-       833  Harms  v.  Solem,  79  111,  460. 
ler,  67  111.  244). 

Tj.  and  Ten.  131. 


2082  DISTRESS.  §  34G 

In  determining  whether  a  distress  is  excessive,  the  value  of 
the  goods  seized,  it  is  said,  is  prima  facie  what  they  would  realize 
at  auction,834  ^nd  not  their  value  to  the  tenant  or  the  amount 
which  an  incoming  tenant  would  pay  for  them.^35  g^t  it  has 
been  held  that  the  price  actually  obtained  for  them  at  the  sale 
under  the  distress  is  not  conclusive  as  to  their  value,  and  conse- 
quently the  tenant  may  sue  for  an  excessive  distress  though  the 
sale  of  the  goods  distrained  (less  the  expense)  did  not  realize  the 
amount  due.^^e  if  o^ly  a  single  chattel  subject  to  distress  is> 
found,  the  person  distraining  it  will  not  be  liable  as  for  an  ex- 
cessive distress,  though  its  value  considerably  exceeds  the  amount 
due.^3'^ 

The  fact  that  no  sale  takes  place,  either  because  the  tenant 
pays  the  amount  due,^^^  or  because  the  parties  so  arrange,^^'* 
does  not  affect  the  right  of  action,  even  though  the  goods  have 
not  been  withdrawn  from  the  tenant's  control.^-*"  A  recovery  in 
an  action  of  replevin  has,  however,  been  regarded  as  a  bar  to  the 
action,  this  involving  an  election  by  the  tenant  to  treat  the  dis- 
tress as  illegal.S'*^ 

An  action  for  an  excessive  distress  may  be  brought  not  only 
by  the  tenant,  but  as  well  by  a  third  person  whose  goods  have 
been  seized.^^^  A  person  who  has  the  mere  enjoyment  of  the 
use  of  the  chattels,  without  any  property  in  them  either  legal  or 
equitable,  may,  it  has  been  held,  sue  on  this  ground.^^s 

In  one  state  it  has  been  held  that  a  landlord  may,  in  distrain- 
ing, seize  sufficient  goods  to  satisfy  not  only  the  rent  but  also  a 
lien  on  the  goods  of  a  character  which  by  statute  takes  precedence 

?34Rapley    v.    Taylor,    Cab.    &    E.    Willoughby   v.   Backhouse,    2    Barn. 
150;  Wells  v.  Moody,  7  Car.  &  P.  59;    &  C.   821. 
Weber  v.  Vernon,  2  Pen.  (Dei.)  359,        s4o  Baylis  v.  Usher,  4  Moore  &  P. 

45  Atl.  537.  '^^'^• 

835  wells  V.  Moody.  7  Car.  &  P.  59.        ^"^  Phillips  v.   Berryman,   3  Doug. 

836  Smith    V.    Ashforth     29    L.    J.    286.     See  Grace  v.  Morgan,  2  Bing. 

Exch    "59  ^-  ^-  ^^^■ 

■  ,,.,  V.  „     ^    -c         r--,  8*2  Fisher    v.    Algar,    2    Car.    &   P. 

837  Field    V.    Mitchell.    6    Esp     '^1;  %    '   ..    o  t.     .    a. 

,    „     374;   Wilkinson  v.  Ibbett,  2  Fost.  & 
Avenell  v.  Croker,  Moody  &  M.  172.    ^    ^^^ 

838  Chandler  v.  Doulton,  3  Hurl.  &  843  Fell  y.  Whitaker,  L.  R.  7  Q. 
C.  553.  B.   120. 

sss  Sells    V.    Hoare,    1    Bing.    401; 


R  346  REMEDIES  FOR  WRONGFUL  DISTRESS.  2083 

of  rent;844  and  in  another  the  statute  provides  that  if  the  fronds 
are  subject  to  a  mortgage  made  before  the  lease,  the  landlord 
may  pay  it,  and  distrain  for  the  amount  thereof  as  well  as  for 
the  rent.8^5 

In  any  jurisdiction  in  which  there  is  a  statutory  lien  for  the 
rent,  and  distress  is  named  as  a  proper  mode  of  asserting  the  lien, 
that  all  the  property  subject  to  the  lien  is  distrained,  though  much 
greater  in  value  than  the  amount  due,  is  not,  it  seems,  a  ground 
of  liability .846 

The  proper  form  of  action  for  an  excessive  distress  is  an  action 
on  the  case.84'^ 

While  an  action  ordinarily  lies  for  the  taking  of  an  excessive 
distress,  the  distress  is  not  on  that  account  void,  and  the  goods 
seized  may  be  detained  for  the  amount  actually  due.S'is 

In  some  states  there  is  a  right  of  action  against  a  landlord  if 
he  undertakes  to  distrain  for  an  amount  in  excess  of  the  rent  ac- 
tually due,  without  reference  to  the  amount  or  value  of  the 
property  which  may  be  seized  under  the  distress. ^^^ 

(8)  Irregularities  after  seizure.  At  common  law  any  irregu- 
larity committed  in  the  course  of  a  distress  rendered  the  person 
distraining  a  trespasser  ah  iniiio.^^^  But  by  St.  11  Geo.  2,  c.  19, 
§  19,  it  was  provided  that  when  any  distress  shall  be  made  for 
any  rent  justly  due,  and  any  irregularity  or  unlawful  act  shall  be 
afterwards  done  by  the  party  distraining  or  his  agent,  the  distress 
itself  shall  not  be  deemed  unlawful,  nor  the  distrainer  a  tres- 
passer ah  initio,  but  the  party  or  parties  aggrieved  may  recover 
the  special  damage  sustained,  in  an  action  of  trespass  or  on  the 

844  Smith  V.  Hoopes,  1  Pen.  (Del.)  Watts  (Pa.)  34  (and  not  trespass); 
177    39  Atl.  990.  Jimison    v.   Reifsneider,   97    Pa.   136 

R45  South    Carolina    Civ.    Code,    §    (and  not  replevin). 
243Q  848  See    Lindley    v.    Miller,    67    111. 

S4f,  It  is  so  decided  in  McKee  v.  1244;  Harms  v.  Solem,  79  111.  460; 
Sims    92    Tex.    51,   45    S.   W.    564.        McKinney  v.  Reader,  6  Watts   (Pa.) 

847'Hutchins  V.   Chambers,   1  Bur-    34;    Richards    v.    McGrath,    100    Pa. 
row,      586;      Lynne     v.      Moody,      2    389,  and  cases  cited  in  next  preced- 
Strange,  851;   Kendrick  v.  Lee,  6  U.    Ing  note. 
C.  Q.  B.  (0.  S.)  27;  Hare  v.    Stegal,        849  See  ante,  §  331. 
60    111.    380;    Lindley    v.    Miller,    67       sso  six  Carpenters'   Case,  8   Coke, 
111.    244;     McKinney    v.    Reader,    6    146    a. 


2084  DISTRESS.  §  346 

case  at  his  election.  An  approximately  similar  statute  is  in  force 
in  several  of  the  states.^^^ 

Such  a  statute  applies  only  to  irregularities  subsequent  to  the 
seizure,  as  where  a  sale  is  made  without  giving  the  proper  no- 
tice,s^2  or  without  appraisement,^^^  or  before  the  proper  time,^^^ 
or  without  obtaining  the  best  price  ;8^^  and  any  irregularity  in 
the  entry  or  seizure  still  renders  the  person  distraining  a  tres- 
passer ah  initio.^^^  By  force  of  the  statute  the  tenant  can  recover 
for  any  irregularity  subsequent  to  the  seizure  only  if  he  shows 
special  damage  by  reason  thereof.^^'^ 

Whether  an  action  on  account  of  a  wrong  committed  subse- 
quently to  the  seizure  shall  be  in  trespass  or  in  case  depends  on 
the  character  of  the  wrong.  For  a  mere  omission  to  have  an  ap- 
praisement made,  or  the  like,  an  action  of  case  is  proper,^^^  while 
for  an  active  wrong,  such  as  turning  the  tenant's  family  out  of 
possession,^^^  or  for  continuing  in  possession  an  unreasonable 
time,^^*'  he  may  sue  in  trespass.  Since  by  the  English  statute 
the  distrainor  is  not  a  trespasser  ab  initio,  and  an  action  on  the 
case  is  expressly  given  him,  he  cannot,  it  has  been  held,  bring 
trover  on  account  of  an  irregularity  within  the  statute.^^^ 

In  Pennsylvania  St.  11  Geo,  2,  c.  19,  §  19,  is  not  in  force,  and 

S51  Delaware    Rev.    Code    1893,    p.  N.  116;   Brown  v.  Howell,  68  N.  J. 

871,  §  38;  Kentucky  St.  1903,  §  2398;  Law,  292,  53  Atl.  459. 
Mississippi  Code  1906,  §  2854;   New       sss  Messing    v.    Kemble,    2    Camp. 

Jersey,  1  Gen.  St.  p.  1210,  §  12;  West  115;    Knight    v.    Egerton,    7    Exch. 

Virginia    Code    190ff,    §    3407;    Vir-  407;  Robinson  v.  Wadaington,  13  Q. 

ginia  Code  1904,  §  2794.  B.  753;   Biggins  v.  Goode,  2  Cromp. 

8"52Kerby  v.  Harding,  6  Exch.  234.  &  J.  364;  Lucas  v.  Tarleton,  3  Hurl. 

See  ante,  §  342  b.  &  N.  116. 

853  Biggins  V.  Goode,  2  Cromp.  &  859  Etherton  v.  Popplewell,  1  East, 
J.  364;  Knotts  v.  Curtis,  5  Car.  &  P.  139. 

322;  Knight  V.  Egerton,  7  Exch.  407.  J^eo  Winterbourne     v.     Morgan,    11 

854  Lucas  V.  Tarleton,  3  Hurl.  &  N.  East,  395;  Thompson  v.  Marsh,  2  U. 
116;  Rodgers  v.  Parker,  18  C.  B.  C.  Q.  B.  (0.  S.)  389;  Lynch  v. 
112;  Wallace  v.  King,  1  H.  Bl.  13.  Bickle,  17  U.  C.  C.  P.  549. 

855  Poynter  v.  Buckley,  5  Car.  &  sgi  Wallace  v.  King,  1  H.  Bl.  13. 
P.  512;  Ridgway  v.  Stafford,  6  Exch.  In  Illinois  it  was  assumed  that  the 
404;   Cahill  v.  Lee,  55  Md.  319.  English    statute    was    not    in    force 

»66  Attac'k  V.  Bramwell,   3  Best  &  there,  and    that  consequently  trover 

g.  520.  would  lie  in  the  case  of  a  sale  with- 

857  Rodgers    v.    Parker,    18    C.    B.  out  appraisement.     Tripp  v.  Groun- 

112;    Lucas  v.   Tarleton,   3   Hurl.   &  er,  60  111.  474. 


§346 


REMEDIES  FOR  WRONGFUL  DISTRESS.      '  20S5 


accordingly  a  landlord  has  there  been  held  liable  as  a  trespasser 
ah  initio  when  he  sold  without  first  having  an  appraisement,^^^ 
and  when  he  sold  after  an  appraisement  which  was  made  less  than 
the  statutory  time  after  the  seizure.s^s  An  omission  by  the 
landlord  of  a  prerequisite  of  the  sale,  such  as  notice  to  the  teu- 
ant,864  Qj.  presumably  an  appraisement,  does  not  even  there  ren- 
der him  liable  as  a  trespasser  ah  initio  if  no  sale  is  made.  In  that 
jurisdiction,  in  the  case  of  a  sale  made  without  a  proper  appraise- 
ment,  or  other  required  preliminary,  the  landlord  may,  as  being 
a  trespasser  ah  initio,  be  sued  in  trover  instead  of -in  trespass,s65 
and  likewise  the  purchaser  at  the  invalid  sale  may  be  sued  in 
trover,  as  no  title  can  grow  out  of  a  trespass.s*^^^ 

(9)  Measure  of  damages.  In  case  a  distress  is  absolutely  iL 
legal  and  so  constitutes  a  trespass  ah  initio,  by  reason  of  the  fact 
that  there  is  no  right  of  distress,  or  that  the  entry  or  seizure  is 
wrongful,  or,  in  some  jurisdictions,  by  reason  of  irregularities 
subsequent  to  the  seizure,^^?  the  person  whose  goods  are  taken, 
whether  the  tenant  or  another,  may,  if  the  goods  are  subsequently 
sold  under  the  distress,  ordinarily  recover  as  damages  the  value  of 
the  goods  wrongfully  taken,  without  deducting  the  amount  of  rent 
due,s68  and  also,  according  to  some  cases,  interest  on  such  amount 
until  the  time  of  trial.^^^  It  has  been  held,  however,  that  if,  be- 
fore the  goods  are  removed  from  the  premises,  the  distress  is 
withdrawn  by  reason  of  the  payment  of  the  rent,  only  the  amount 
of  the  actual  damage  sustained  by  the  wrongful  levy  can  be  re- 
covered.^'^^ 

862  Kerr  v.   Sharp,   14  Serg.   &  R.  S.  520;   Howell  v.  Listowell  Rink  & 

(Pa.)    399;   Briggs  v.  Large,  30  Pa.  Park  Co.,  13  Ont.  476;  Huskinson  v. 

287;  Wyke  v.  Wilson,  173  Pa.  12,  33  Lawrence,  26  U.  C.  Q.  B.  570;  Gate  v. 

Atl.   701;    Hazlett  v.    Mangel,  9   Pa.  Schaum,  51  Md.  299;  Briscoe  v.  Mc- 

Super.  Ct.  139.  Elween,  43  Miss.  556  Perrin  v.  Wells, 

863Brisben  v.  Wilson,  60  Pa.  452;  155   Pa.   299,  26  Atl.  543;    Majors  v. 

Davis  V.  Davis,  128  Pa.  100,  18  Atl.  Goodrich   (Tex.  Civ.  App.)    54  S.  W. 

514.  919- 

804McKinney  v.     Reader,  6  Watts  sco  Cate   v.    Schaum,   51   Md.   299; 

(Pa.)  34.  Briscoe  v.  McElween,  43  Miss.  556; 
865  Briggs  V.  Large,  30  Pa.  287.  Bohm  v.  Dunphy,  1  Mont.  333;  Fern- 
sen  Brisben  v.  Wilson,  60  Pa.   452.  wood  Masonic  Hall  Ass'n  v.  Jones, 

867  See   ante,    §    346    d    (8).  102  Pa.  307. 

868  Keen   v.   Priest,    4   Hnrl.   &   N.  sto  Harvey  v.  Pocock,  11  Mees.   & 
236;    Attack  v.  Bramwell,  3  Best  &  W.  740;  Hogarth  v.  Jennings  [1892] 


2086  DISTRESS.  §  346 

In  a  number  of  cases  the  person  injured  has  been  allowed  to  re- 
cover consequential  damages  resulting  from  the  seizure,^''^^  such 
as  injury  to  his  business^'^^  or  reputation  for  solvency ,^'^3  lo^gg 
of  time,^"^^  and  even  for  injury  to  his  feelings.^'^^  lie  can  obvi- 
ously not  recover  for  loss  and  injury  for  which  he  is  himself  re- 
sponsible.^'^'^  Exemplary  damages  may  also  be  recovered  when 
the  illegal  seizure  is  made  under  such  circumstances  of  malice, 
willfulness,  or  oppression,  as  would  justify  recovery  of  such  dam- 
ages in  the  case  of  any  other  illegal  taking.^'^^ 

As  before  stated,^^^  by  statute,  in  several  jurisdictions,  there 
may  be  a  recovery  of  double  the  value  of  the  goods  taken  if  no 
rent  is  due. 

In  the  case  of  an  excessive  distress,  the  measure  of  recovery  is, 
it  has  been  said,  the  inconvenience  and  expense  which  the  ten- 
ant sustains  in  being  deprived  of  the  use  and  control  of  the  ex- 
cess of  goods  taken,  or,  in  case  he  has  replevied  the  goods,  the 
additional  expense  and  inconvenience  of  replevying  to  a  larger 
amount,^'''^  and  he  may,  in  any  case  of  excessive  distress,  recover 
nominal  damages   at  least.^so     In  case  the  goods  are   sold  the 

1  Q.  B.  907;  Lamb  v.  Wall,  1  Fost.  &  v.  Jones,  11  Tex.  Civ.  App.  18,  31  S. 

F.     503.     In     Scott    v.     McEwen,     2  W.   306. 

PMla.    (Pa.)    176,  the  court  refused  sts  Morris  v.  Duncan,  126  Ga.  467, 

to  allow  any  damages,  ttie  wrongful  54  S.  E.  1045,  115  Am.  St.  Rep.  105. 

seizure    of    exempt    goods    being   by  s-e  See  Andrews  v.  Jones,  36  Tex. 

mistake,    they    having    been    replev-  149;     Thomas    v.    Judy     (Tex.    Civ. 

ied,    and    no    actual    damage    being  App.)  44  S.  W.  890. 

P™v6n.  877  Dye    v.    Denham,    54    Ga.    224; 

snsee     Fernwood     Masonic     Hall  gherman  v.  Dutch,  16  111.  283;   Clev- 

Ass'n  V.  Jones,  102  Pa.     '        Mickle's  enger     v.     Dunaway,     84     111.     367; 

Adm'r  v.  Miles,  1  Grant's  Cas.  (Pa.)  gohm  v.  Dunphy,  1  Mont.  333;  Rees 

320.  V.  Bmerick,  6  Serg.  &  R.   (Pa.)   286; 

s72See    Sturgis    v.    Frost,    56    Ga.  Hatchell   v.   Chandler,  62  S.    C.  380, 

188;    Dailey  v.  Grimes,  27   Md.  440;  ^^    g_    ^_    ^^^     Compare    Mackin    v. 


Shermian  v.  Dutch,  10  111.  283;  Fish- 
burne  v.  Engledove,  91  Va.  548,  22 
S.  E.  354.  Compare  Hugill  v.  Reed, 
49  N.  J.  Law,  300,  8  Atl.  287;  Burger 
V.  Rhiney  (Tex.  Civ.  App.)  42  S.  W. 
590. 


Blythe,  35  111.  App.  216;  Burger  v. 
Phiney  (Tex.  Civ.  App.)  42  S.  W. 
590;  Fishburne  v.  Engledove,  91  Va. 
548,  22  S.  E.  354. 

87S  See  ante,  §    346  d    (2). 


S73  Marquissee      v.      Ormston,      15  «"  Piggott   v.    Birtles,    1    Mees.    & 

Wend.   (N.  Y.)    368.  W.   441. 

874  See  Watson  v   Boswell,  25  Tex.  ''^o  Chandler    v.    Doulton,    3    Hurl. 

Civ.  App.  379,  61  S.  W.  407;   Smith  &  C.  553;  Piggott  v.  Birtles,  1  Mees 


§  346  REMEDIES  FOR  WRONGFUL  DISTRESS.  2bt>7 

tenant  may,  it  seems,  allege  such  sale  as  special  damage.^^^ 

In  the  case  of  an  irregularity  subsequent  to  the  seizure,  which 
irregularity  does  not,  by  statute,^^^  render  the  distrainor  a  tres- 
passer ah  initio,  the  recovery  is  ordinarily,  by  the  language  of 
the  statute,  limited  to  the  "special  damage"  sustained  by  reason 
of  such  irregularity.  Consequently,  in  the  absence  of  proof  of 
actual  damage,  there  is  no  right  to  a  verdict  for  nominal 
damages.^^3  The  ordinary  measure  of  damages  in  such  a  case 
is  the  value  to  the  owner^^*  of  the  goods  distrained  less  the 
amount  of  the  rent  due.^^^  In  a  jurisdiction  where  such  an  irreg- 
ularity does  make  the  distrainor  a  trespasser  nh  initio,  the  value  of 
the  goods  seized  and  sold,  without  any  reduction  for  rent,  may 
be  recovered.^^^ 

(10)  Persons  liable.  When,  as  is  ordinarily  the  case,  the  seiz- 
ure and  sale  are  not  made  by  the  person  asserting  the  claim  for 
rent,  usually  the  landlord,  but  another  makes  the  distress  for  him 
as  bailiff  or  constable,  a  question  may  arise  as  to  the  liabilitj^  of 
the  employee.  If  a  distress  is  made  under  circumstances  not  war- 
ranting a  resort  to  such  a  remedy,  as  when  no  relation  of  tenancy 
exists,  or  when  no  rent  is  due,  the  person  who  directed  the  dis- 
tress to  be  made  is  obviously  liable  as  a  joint  trespasser.^s"  It 
has  even  been  decided  that  the  landlord  is  liable  for  the  act  of 
the  bailiff  in  distraining  after  a  tender  made  to  the  latter  on  the 
land,  although  the  landlord  did  not  know  of  the  tender.^ss 

As  to  whether,  when  the  circumstances  justify  a  distress,  the 

&  W.  441;   Black  v.  Coleman,  29  U.       sss  Biggins  v.  Goode,  2  Cromp.  & 

C.  C.  P.  507.  J.   364;    Knight  v.  Egerton,  7  Exch. 

881  Thompson  v.  Wood,  4  Q.  B.  493.  407;  Whitworth  v.  Maden,  2  Car.  & 
As  to  damages  for  distraining  for  K.  517;  Shnltz  v.  Reddlck,  43  U.  C. 
more  rent  than  is  due  (ante,  §  346  Q.  B.  155;  Tripp  v.  Grouner,  60  111. 
d    [7]),   see   Watson   v.    Boswell,   25  474;  Cahlll  v.  Lee,  55  Md.  319. 

Tex.   Civ.   App.   379,   69    S.   W.    407;  sse  Davis  v.  Davis,  128  Pa.  100,  18 

Fernwood    Masonic    Hall    Ass'n    v.  Atl.  514.     But  see  Tripp  v.  Grouner, 

Jones,  102  Pa.  307.  60   III.  474. 

882  See  ante,  §  346  d  (8).  jsst  Richardson   v.    Vice,    4    Blackf. 
88.-?Rodgers    v.    Parker,    18    C.    B.  (Ind.)   13;  Ashbell  v.  Tipton,  40  Ky. 

112;    Lucas   v.   Tarleton,   3   Hurl.    &  (1  B.  Mon.)   300. 

N.  116.     Contra,  Maguire  v.  Post,  5  sss  Hatch    v.    Hale,    15    Q.    B.    10; 

U.  C.  Q.  B.  (0.  S.)  1.  Howell  v.  Listowell  Rink  &  Park  Co.. 

884  See  Knotts  v.  Curtis,  5  Car.  &  13     Ont.    476;     Hilson    v.    Blain,    2 

P.  322;  Rocke  v.  Hills,  3  Times  Law  Bailey  Law  (S.  C.)   168. 
R.  298. 


2088 


DISTRESS. 


§346 


landlord  is  liable  for  the  wrongful  acts  of  his  representative  com- 
mitted in  making  the  distress  and  sale,  as  being  within  the  scope 
of  the  authority  given,  the  cases  are  by  no  means  in  accord.^^^  It 
has  been  decided  that  the  landlord  is  liable  on  account  of  the  act 
of  his  bailiff  in  making  an  excessive  distress,^^^  and  also  for* 
other  irregularities  committed  by  the  bailiff  in  conducting  the 
distress,  such  as  a  failure  to  give  notice  or  have  an  appraisement 
made  previous  to  sale.^^^  The  landlord  is  obviously  liable  for  all 
acts  specifically  authorized^^^  or  ratified  by  him.*^^3 

There  are  two  decisions  that  the  landlord  is  liable  for  the  act 
of  his  bailiff  in  entering  in  an  illegal  manner  in  order  to  dis- 
train,^^*  and  there  is  also  a  decision  to  the  contrary .^^^  And 
while  in  England  and  in  one  state  it  has  been  decided  that  the 
landlord  is  not  liable  for  the  act  of  the  bailiff,  not  specifically  au- 
thorized or  ratified  by  him,  in  seizing  articles  which  are  not  a 
proper  subject  of  seizure,^^®  a  different  view  has  been  adopted  in 


889  In  Manchester  Home  Bldg.  & 
Ix)an  Ass'n  v.  Porter,  106  Va.  528,  56 
S.  E.  337,  it  was  said  that  since  the 
evidence  did  not  tend  to  prove  that 
tho  landlords  directed  or  approved 
of  the  manner  in  which  the  con- 
stable executed  the  warrant,  or  that 
they  knew  how  it  had  been  executed, 
the  question  of  their  liability  for  the 
officer's  acts  ought  not  to  have  been 
submitted  to  the  jury.  The  char- 
acter of  the  officer's  misconduct 
does  not  appear. 

800  Megson  v.  Mapleton,  49  Law  T. 
(N.  S.)  744;  Riggin  v.  Becker,  9  Pa. 
Dist.  R.  439.  See  Weboer  v.  Vernon, 
2  Pen.   (Del.)  359,  45  Atl.  537. 

891  Haseler  v.  Lemoyne,  5  C.  B. 
(N.  S.)  530.  But  in  Butts  v.  Ed- 
■^\ards,  2  Denio  (N.  Y.)  184,  it  was 
lield  that  the  landlord  was  not  lia- 
ble for  a  premature  appraisement, 
he  not  knowing  thereof. 

892  Hall  v.  Amos,  21  Ky.  (5  T.  B. 
Mon.)  89,  17  Am.  Dec.  42;  Riggin  v. 
Becker,  9  Pa.  Dist.  R.  439. 

•=^93  Moore  v.  Drinkwater,  1  Fost.  & 
F.  134;  Becker  v.  Dupree,  75  111.  167; 


Connah  v.  Hale,  23  Wend.  (N.  Y.) 
462.  Compare  Grund  v.  VanVleck, 
69  III.  478.  That  the  landlord  re- 
ceived the  proceeds  of  a  distress  has 
been  held  not  of  itself  sufficient 
to  make  him  liable  for  the  seizure 
of  goods  not  subject.  Lewis  v. 
Read,  13  Mees.  &  W.  834;  Freeman 
v.  Rosher,  13  Q.  B.  780.  Contra, 
where  he  retains  possession  of 
things  which  he  must  know  to  have 
been  wrongfully  distrained.  Gaunt- 
lett  V.  King,  3  C.  B.   (N.  S.)   59. 

89*Anglehart  v.  Rathier,  27  U.  C. 
C.  P.  97;  Gate  v.  Schaum,  51  Md. 
299.  This  later  case  is  to  a  con- 
siderable extent  based  on  Attack  t. 
Bramwell,  3  Best  &  S.  520,  in  which 
case,  hov/ever,  the  question  whether 
the  landlord  was  liable  for  his  bail- 
iff's act  is  not  referred  to  by  court 
or  counsel  and  it  would  seem  that 
the  landlord  either  authorized  or 
adopted  the  illegal  act. 

"95  Ellis  V.  Lamb,  9  Pa.  Dist.  R. 
491. 

896  Lewis  V.  Read,  13  Mees.  &  W. 
834;    Freeman  v.  Rosher,  13  Q.  B. 


s  34g  REMEDIES  FOR  WRONGFUL  DISTRESS.  2089 

another  state.«»'^  An  assault  by  the  person  employed  to  make  tlie 
distress,  though  made  while  engaged  in  levying  the  distress,  has 
been  regarded  as  entirely  outside  of  his  authority .s^s 

The  person  employed  by  the  landlord  to  make  the  distress,  even 
though  he  is  a  person  having  an  official  character,  such  as  a  sher- 
iff or  constable,  is  liable  in  case  there  is  no  legal  justification  for 
the  distress,  as  well  as  on  account  of  his  illegal  mode  of  making 
the  levy  or  sale.^^^  But  he  is  not,  it  seems,  liable  for  acting 
under  a  warrant  improperly  issued,  if  the  law  requires  him,  as  an 
official,  to  levy  a  distress  on  the  issue  of  a  warrant  therefor.^'*'^ 
(11)'  Matters  excluding  right  of  action.  It  has  been  decided 
in  one  case  that  a  provision  of  the  lease,  excluding  any  right  to 
recover  damages  by  reason  of  a  distress,  is  invalid.^oi 

The  owner  of  goods  illegally  distrained,  it  has  been  decided, 
does  not  waive  his  right  of  action  by  his  failure  to  claim  the  goods 
at  the  time  of  the  distress.^o^ 

In  Pennsylvania  it  has  been  decided  that  if  a  notice  of  the 
distress  is  given  to  the  owner  of  the  goods  distrained  and  an  ap- 
praisement is  made,  his  only  remedy  thereafter  is  by  replevin, 
and  he  cannot,  after  the  sale,  bring  trespass  or  trover.^o^  This 
view  is  based  on  the  ground  that  the  statute  names  replevin  as 
the  remedy  in  such  case.  In  no  other  jurisdiction  does  such  a 
view  appear  to  have  obtained. 

780-   Haseler  v.  Le  Moyne.  5  C.  B.    (6  B.  Mon.)  420;  Roberts  v.  Tennell. 

rNS)    530;    Becker  v.  Dupree,  75    14   Ky.    (4  Litt.)    286. 

I    ■  ^^  901  Watson  V.  Boswell,  25  Tex.  Civ. 

'     J'l  ,      wiP-htman       4    App.  379,  61  S.  W.  407.     In  Watson 

897  Parkerson     v.     Wigntman,     *   ^yv-  « '^.  ^.       .         -.>«    /.h 
qt     b     (S    C  )    363                                    ^-  Mirike,  25  Tex.  Civ.  App.  527,  6. 

so°8Ricbards     v      West     Middlesex    S.  W.   538,  such  a  clause  was   held 

898  Richards    V.     we  ^^  ^^  ^^^.^  ^^  ^^^^.^^  ^^  ^  ^.^^^^^^ 

waterworks  Co..  15  Q.  B.  Div.  660      ^^^^^  circumstances  "which  author- 
Ellis  V.   Lamb.   9    P^;^  ^^^-^f /^^-    ized  a  legal  distraint." 
See  Kinsella  v.  Hamilton,  Zb  l.  ±v,        ^^^  ^^^^^  ^  Herring,  27  N.  J.  Law. 
Ir.  671.  243. 

809  Lord  V.  Brown,  5  Denio  (N.  Y.)  ^^^  Caldcleugh  v.  Hollingsworth.  8 
345;  Moulton  v.  Norton,  5  Barb.  (N.  .^^^ts  &  S.  (Pa.)  303;  Esterly  Mach. 
Y.)  286;  Wells  v.  Hornish,  3  Pen.  &  ^^  ^  Spencer,  147  Pa.  466.  23  Atl. 
W.  (Pa.)  30;  McBlroy  v.  Dice,  17  Pa.  ^^4.  gassman  v.  Brisbane,  7  Phila. 
163;  Oliver  v.  Wheeler,  26  Pa.  Super,  (pa.)  159.  See  Briggs  v.  I^rge.  30 
Ct  '5-  Gauntlett  v.  King,  3  C  B.  (N.  Pa.  287;  Brown  v.  Stackhouse,  155 
g  ^    59  Pa.  582.  26  Atl.  669,  35  Am.  St.  Rep. 

oeoSee  Powell  v.  Triplett,  45  Ky.    908. 


2090  ATTACHMENT.  §  34'j 

The  tenant's  right  of  action  against  one  who  makes  a  distress 
under  a  warrant  which  is  invalid  by  reason  of  the  landlord's 
death  after  its  issuance  is  not  affected,  it  has  been  decided,  by 
the  fact  that  he  acquiesced  in  the  seizure  by  reason  of  the  pre- 
tended authority  .^^^  * 

The  right  of  action  for  a  wrongful  distress  has  been  held  not 
to  be  affected  by  the  fact  that  the  parties  enter  into  an  arrange- 
ment for  the  sale  of  the  goods  distrained  i^*^^  and  a  like  view  has 
been  adopted  in  the  same  jurisdiction  as  to  the  effect  of  the  re- 
ceipt by  the  tenant  of  the  balance  in  the  sheriff's  hands  above 
the  rent  claimed  and  costs.*^^  In  another  jurisdiction  such  re- 
ceipt of  the  balance  has  been  held  to  prevent  recovery  of  dam- 

aggg_90T 

It  has  been  decided,  in  jurisdictions  where  a  distress  has,  or 
may  have,  the  effect  of  commencing  an  action  for  the  rent,^^^  that 
the  fact  that  such  action  has  not  been  brought  to  a  final  con- 
clusion does  not  preclude  an  action  for  the  wrongful  distress.*^^ 

B.    ATTACHMEirr. 

§  347.     When  anthorized. 

The  statutes  of  several  states  authorize  an  attachment  to  se- 
cure the  payment  of  rent  or  of  the  cost  of  supplies  furnished,  or 
the  repayment  of  advances,  when  such  payment  or  repayment 
is  endangered  by  reason  of  the  removal  or  prospective  removal 
of  the  crops  or  of  chattels  on  the  premises,  against  which  the 
landlord  has  the  right  of  recourse,  for  the  purpose  of  distress 
or  enforcement  of  a  lien.^i^  Ordinarily,  the  right  of  attachment 
under  these  statutes  is  expressly  made  independent  of  whether 
the  rent  or  advances  have  become  actually  due.^^^     An  attach- 

904  Bagwell  v.  Jamison,  Cheves  (S.  oi>>A  statute  authorizing  an  at- 
Q\   249.  tachment  to  enforce  a  lien  for  rent 

905  McElroy  v.  Dice,  17  Pa.  163.  not  due  on  an  affidavit  that  the  ten- 

906  Ingram  v.  Hartz,  48  Pa.  380.  ant  is  about  to  remove  or  sell  some  of 

907  Manchester  Home  Bldg.  &  Loan  his  chattels  was  held  not  to  author- 
Ass'n  V.  Porter,  106  Va.  528,  56  S.  ize  an  attachment  as  against  goods 
B    337.  already  removed,  though  they  were 

908  See   ante,  §   344.  still  subject  to  the  lien.     Wallach  v. 

909  Sturgis  V.  Frost,  56  Ga.  188;  Chesley,  13  D.  C.  (2  Mackey)  209. 
Kingsley  v.  Schmicker  (Tex.  Civ.  on  in  two  jurisdictions  a  statute 
App.)    60  S.  W.  331.  giving  a  right  of  attachment,  upon 


§347 


WHEN  AUTHORIZED. 


2091 


ment  under  such  a  statute  is  practically  equivalent  to  the  dis- 
tress authorized  by  some  statutes  under  similar  circumstances.^ i* 
The  right  to  an  attachment  by  reason  of  an  actual  removal  is 
ordinarily  independent  of  the  question  whether  the  tenant  intend- 
ed thereby  to  avoid  payment  of  the  landlord's  claim," ••*  and  so  it 
has  been  held  that  the  fact  that  the  removal  was  to  nearby  land 
belonging  to  the  landlord  did  not  affect  the  right.^^^  The  stat- 
ute sometimes  makes  the  removal  of  any  part  of  the  crop  from 
the  premises  ground  for  attachment  ;^i5  but  in  Missouri  the  stat- 
ute has  been  construed  as  allowing  removal  of  part  of  the  crops 
or  chattels  provided  the  part  left  is  sufficient  to  secure  the  rent,^!^ 
the  important  question  being  whether  the  removal  endangered  the 
collection  of  rent.^^^  And  in  Virginia  and  West  Virginia  the 
statute  expressly  makes  the  removal  of  the  tenant's  property 


the  intended  removal  of  the  ten- 
ant's goods,  for  rent  not  yet  due,  has 
been  construed  to  give  such  right 
only  as  to  the  installment  next  fall- 
ing due.  Redford  v.  Winston,  3 
Rand.  (Va.)  148;  Joyce  v.  Wilken- 
ning,  8  D.  C.  (1  McArthur)  567. 
That  there  is  no  right  of  attachment 
previous  to  the  term  for  rent  to  be- 
come due  during  tlie  term,  see  John- 
son V.  Garland,  9  Leigh  (Va.)  149. 

912  See  ante,  §  333  b.  The  Missis- 
sippi statute  uses  the  expressions 
"distress"  and  "attachment"  inter- 
changeably. See  Code,  §§  2838  et 
seq. 

oi3Kleun  v.  Vinyard,  38  Mo.  447; 
Masterson  v.  Bentley,  60  Ala.  520; 
Randolph  v.  McCain,  34  Ark.  696. 
But  see  Alabama  Code  1907,  §  4748, 
giving  a  right  of  attachment  upon  a 
"fraudulent  disposal  of  goods." 

So  the  fact  that  the  property  wap, 
being  removed  by  the  tenant  in  the 
regular  course  of  business  was  re- 
garded as  immaterial.  Offterdinger 
V.  Ford,   92  Va.   636,   24  S.  E.   246. 

914  Masterson  v.  Bentley,  60  Ala. 
520.  So  when  the  removal  was  to 
other  land  leased  to  the  same  ten- 


ant by  the  same  landlord.  Patton 
V.  Garrett,  37  Ark.  605. 

^^^  Alabama  Code  1907,  §  4739; 
Arkansas,  Kirby's  Dig.  1904,  §  5040; 
Kansas  Gen.  St.  1905,  §  4077  (prop- 
erty or  crops).  See  Randolph  v. 
McCain,  34  Ark.  696;  Harmon  y. 
Payton,  68  Kan.  67,  74  Pac.  618. 

016  Haseltine  v.  Aushermann,  87 
Mo.  410;  Hubbard  v.  Quisenberry,  32 
Mo.  App.  459;  Kinear  v.  Shands,  36 
Mo.  379.  But  when  the  rent  was 
one-third  of  the  crop,  which  consist- 
ed of  corn,  oats  and  and  beans,  since 
the  landlord  is  entitled  to  one-third 
of  each,  a  disposal  of  tne  beans  was 
held  to  endanger  the  collection  of 
the  rent,  though  the  corn  and  oats 
left  were  worth  more  than  the  whole 
rent.  Ford  v.  Wycoff,  73  Mo.  App. 
144.  And  the  fact  that  the  tenant 
has  property  elsewhere  out  of  which 
the  rent  could  be  paid  cannot  be  con- 
sidered. Haseltine  v.  Ansherman, 
87  Mo.  410;  Hubbard  v.  Quisenberry, 
32  Mo.  App.  459;  Dawson  v.  Quillen, 
43  Mo.  App.  118. 

917  Morris  v.  Hammerle,  40  Mo. 
489;  Haseltine  v.  Ausherman,  87  Mo. 
410. 


^J092  ATTACHMENT.  §  347 

ground  for  attachment  only  if  sufficient  to  satisfy  a  distress  does 
not  remain.^^s 

Some  statutes  allow  an  attachment  upon  the  ground  not  only 
that  the  tenant  has  removed,  but  also  that  he  intends  to  remove, 
his  crops  ^^^  or  chattels  ^^^  from  the  premises.  It  has  been  held 
that  a  threat  by  the  tenant  to  dispose  of^his  crop  is  not  an  in- 
tention so  to  do  within  such  a  statute.^^i  j^  statute  which  in 
terms  authorized  an  attachment  for  rent  not  due  in  case  of  a  pros- 
pective removal  endangering  the  right  of  distress  has  been  re- 
garded as  applicable  only  when  the  rent  was  of  a  character  for 
which  distress  could  be  made.^22 

In  Kentucky  the  landlord's  right  to  an  attachment  is  de- 
pendent on  whether  the  landlord  has  reasonable  grounds  to  be- 
lieve that  he  will  lose  his  rent  unless  an  attachment  is  issued.^-^ 

Although  the  statute  refers  to  a  removal  or  anticipated  re- 
moval by  the  tenant  or  person  liable  for  the  rent  as  the  justifi- 
cation for  the  attachment,  a  removal  by  one  to  whom  he  has 
mortgaged  chattels  on  the  premises,924  ^s  well  as  a  removal  by 
a  subtenant  of  crops  sul)ject  to  the  landlord's  lien,925  j^as  been 
regarded  as  sufficient  for  this  purpose. 

In  several  states  the  statute  in  express  terms  provides  for 
the  enforcement  of  the  lien  for  rent,  or  for  supplies  or  advances, 
by  the  process  of  attachment,  without  reference  to  any  special 
circumstances  of  the  case,  such  as  removal  of  the  chattels  sub- 
ject or  possibility  of  loss.^^e 

91S  Virginia    Code    1904,    §    2962;  922  Poer  v.  Peebles,  40  Ky.    (1  B. 

West  Yirginia  Code  1906,  §  3538.  Mon.)    1. 

9t^  Alabama    Code    lau7,    §    4739;  923  See  Kentucky  St.  1903,  §  2302: 

Arlcansas,  Kirby's  Dig.  1904,  §  5040;  Porter  v.  Sparks,  19  Ky.  Law  Rep. 

Tennessee,    Shannon's   Code  1896,   §  1211,  43  S.  W.  220;  Kassel  v.  Snead, 

5301.  21  Ky.  Law  Rep.  777,  52  S.  W.  1058; 

^^  Delaware    Rev.    Code    1893,    p.  O'Bryan  v.  Shipp,  21  Ky.  Law  Rep. 

873,  §  52   (intends  to  remove  effects  1068,  53  S.  W.  1034;   Ward  v.  Grigs- 

from  county) ;   District  of  GohimMa  by,  21  Ky.  Law   Rep.  1406,  55  S.  W. 

Code  1901,  §  1229;  Mississippi  Code  436. 

1906,  §  2848;  Missouri  Rev.  St.  1899,  924  Offterdinger    v.    Ford,    92    Va. 

§    4123;    Utah   Comp.    Laws    1907,    §  636,  24  S.  E.  246.     But     see  Abing- 

1409;  Virginia  Code  1904,  §  2962  (so  ton  v.  Steinberg,  86  Mo.  App.  639. 

that  sufficient  property  liable  to  dis-  925  Garrontte  v.  White,  92  Mo.  237, 

tress   will   not   remain) ;    West    Vir-  4  S.  W.  681. 

ginia   Code   1906,   §    3538    (ditto).  ^20  Alabama    Code    1907,    §    4739; 

»2i  Ford  v.  Wycoff,  73  Mo.  App.  144.  Arkansas,  Kirby's  Dig.  1904,  §  5033; 


§  348  AFFIDAVIT.  2093 

Apart  from  a  statute,  such  as  those  we  have  above  referred  to, 
specifically  applicable  to  the  case  of  landlord  and  tenant  or  to 
rent  in  arrear,  the  landlord  or  person  entitled  to  the  rent  may,  it 
seems,  procure  an  attachment  under  the  general  law  in  order  to 
obtain  payment  of  his  claim,  as  may  any  other  creditor,  provided 
the  circumstances  are  otherwise  such  as  to  bring  the  case  within 
the  law.^27  guch  an  attachment  cannot  be  sustained  when  the 
circumstances  are  such  as  merely  to  give  an  attachment  under 
the  special  law  authorizing  it  for  the  enforcement  of  the  land- 
lord's lien.928 

§  348.    Affidavit  for  attachment. 

The  statute  almost  invariably  provides  that  the  attachment 
shall  issue  upon  the  making  of  an  al'iidavit  by  the  landlord  or  per- 
son entitled,  showing  the  existence  of  circumstances  which,  by  the 
terms  of  the  statute,  justify  its  issuance."-^  Such  a  provision 
quite  usually  states  specifically  the  averments  which  the  affidavit 
should  contain.  When  the  asserted  right  of  attachment  is  based 
on  the  existence  of  a  lien,  the  affidavit  should  ordinarily,  no  doubt, 
state  the  facts  by  reason  of  which  the  lien  exists.  The  affidavit 
must,  it  has  been  said,  show  the  existence  of  the  relation  of  land- 
lord and  tenant,93o  and  it  should  show  that  the  claim  asserted  is 
due,  unless  the  case  is  within  a  provision  of  the  statute  allowing 
an  attachment  even  before  the  claim  is  due.^si     If  for  advances 

District   of   Columbia   Code   1901,   §  ^"^  Alabama    Code    1907,    §    4740; 

1229;  Iowa  Code  1897,  §  2993;  Kan-  Arkansas,   Kirby's   Dig.    St.   1904,   § 

sas  Gen.  St.  1905,  §§  4074,  4078;  Ken-  5041;    Delaioare  Rev.  Code  1893,  p. 

tucky   St.    1903,   §   2324;    Mississippi  873;    Kansas  Gen.  St.   1905,  §  4077; 

Code    1906,    §1    2832-2838;    Missouri  Kentucky  St.  1903,  §  2303;  Mississip- 

Rev.  St.  1899,  §  4115;  Oklahoma  Rev.  pi  Code  1906,  §§  2842,  2848;  Missouri 

St.   1903,   §   3343;    Tennessee,   Shan-  Rev.  St.  1899,  §  4123;  Oklahoma  Rev. 

non's  Code  1896,  §  5301;  Utah  Comp.  St.   1903,    §   3346;    Tennessee,   Shan- 

St.  1907,  §  1409.  non's  Code  1896,  §  5301;  Utah  Comp. 

027  See  Baxley  v.   Segrest,  85  Ala.  St.  1907,  §  1410;  Virginia  Code  1904, 

183,  4  So.  865;  Tignor  v.  Bradley,  32  §  2962;   West  Virginia  Code  1906,  § 

Ark.  781:  Brown  v.  Cairns,  107  Iowa,  3541. 

727,  77  N.  W.  478;  Rowell  v.  Felker,  sso  Fitzsimmons     v.     Howard,     69 

54  Vt.  526.  Ala.  590;  Bell  v.  Allen,  76  Ala.  450; 

928  Baxley  v.  Segrest,  85  Ala.  183,  Yarnall  v.  Haddaway,  4  Har.  (Del.) 

4  So.  865;  Tignor  v.  Bradley,  32  Ark.  437. 

781.     See  Greeley  v.  Greeley,  12  Okl.  03i  Fitzsimmons     v.     Howard,     69 

659,  73  Pac.  295.  Ala.  S&O. 


2094  ATTACHMENT.  §  349 

or  supplies  it  must  show  that  they  were  furnished  to  enable  the 
tenant  to  make  a  crop,  when  the  right  to  a  lien  therefor  is  by 
the  statute  conditioned  on  this  fact.^^^  n  ^^g  been  held,  how- 
ever, that  the  particular  articles  supplied,  or  the  values  of  the 
separate  items,  need  not  be  alleged.^^s  if  j^  jg  sought  to  en- 
force  a  lien  for  rent,  and  the  statute  authorizes  a  lien  for  the 
rent  of  the  current  year  only,  the  affidavit  must  show  the  year 
during  which  the  rent  accrued.^^^  It  is,  it  has  been  held,  suf- 
ficient to  state  as  due  a  gross  sum  covering  both  rent  and  ad- 
vances.^^^  An  affidavit  has  been  sustained  as  regards  the  rent 
claimed,  though  insufficient  as  regards  a  claim  also  asserted  there- 
in for  advances.^2^ 

When  the  claim  of  a  right  of  attachment  is  based  on  the  re- 
moval of  the  crop  from  the  leased  premises  without  the  land- 
lord's assent,  as  stated  in  the  statute,  the  affidavit  must,  it  has 
been  held,  allege  that  the  removal  was  from  such  premises,^^'^  and 
that  it  was  without  the  landlord's  assent.^^*  When  the  statute 
authorized  an  attachment  if  the  tenant  is  about  to  remove  his 
property,  is  doing  so,  or  has  done  so,  an  affidavit  alleging  all 
these  grounds  in  the  alternative  was  held  insufficient.'^^* 

§  349.     Bond. 

The  statute  frequently  requires  that  a  bond  be  given  for  the 
payment  of  damages  in  case  the  attachment  is  wrongfully  sued 

If  the  statute  gives  a  right  to  an  time  of  the  year  at  which  the  rent 

attachment  to  enforce  the  lien  after  became  due  is  not  averred,  it  will  be 

demand  and  refusal,  demand  and  re-  presumed  to  fall  due  at  the  end  of 

fusal    after    the    claim    became    due  the   year.       Dozier  v.   Robinson,    82 

must  be  averred.     Dozier  v.   Robin-  Ala.  408,  3  So.  45. 

son,  82  Ala.  408,  3  So.  45;   Fitzsim-  oss  Giddens  v.  Boiling,  93  Ala.  92,  9 

mons  V.  Howard,  69  Ala.   590;    Bell  So.    427;    Ragsdale    v.    Kinney,    119 

v.  Allen,  76  Ala.  450.  Ala.  454,  24  So.  443. 

832  Ballard    v.     Stephens,    92    Ala.  ose  Ballard    v.    Stephens,    92    Ala. 

616,  8  So.  416.  616,  8  So.  416. 

933Cockburn   v.   Watkins,   76   Ala.  S37  Knowles  v.  Steed,  79  Ala.  427; 

486;    Ragsdale   v.    Kinney,   119    Ala.  Baxley  v.  Segrest,  85  Ala.  183,  4  So. 

454,  24  So.  443.     Contra,  Dougherty  865.     See  Bell  v.  Allen,  76  Ala.  450. 

V.   Kellum,    71    Tenn.    (3    Lea)    643.  »38  Busbin   v.   Ware,    69   Ala.   279; 

That  the  year  in  which  the  advances  Robinson  v.  Holt,  85  Ala.  596,  5  So. 

were  made  need   not  be  stated,   see  350;  De  Bardleben  v.  Crosby,  53  Ala. 

Gunter  v.  Du  Bose,  77  Ala.  326.  363. 

934  De  Bardleben  v.  Crosby,  53  Ala.  939  Kleun  v.  Vinyard,  38  Mo.  447. 
363.     It  has  been   held  that  if  the 


§  350  WRIT  AND  LEVY.  2095 

ont,9*o  and,  in  the  absence  of  a  specific  requirement  to  this  effect 
in  connection  with  a  landlord's  attachment,  any  such  requirement 
in  this  regard  in  the  general  attachment  law  would  presumably 
be  effective.  It  has  been  held  that  a  bond  conditioned  as  required 
by  the  general  attachment  law  will  not  sustain  an  attachment 
sought  for  the  purpose  of  enforcing  the  landlord's  lien.^^i 

§  350.    Writ  and  levy  thereunder. 

When,  as  is  ordinarily  the  case,  the  right  of  attachment  exists 
only  against  the  crops  grown  on  the  premises,  or  against  tiie 
chattels  thereon,  the  writ  of  attachment  should  specify  these  as 
the  subject  of  the  levy .9^2  it  has  been  held,  however,  that  a  writ 
issued  in  general  terms  against  the  tenant's  property,  will,  if 
not  abated,  sustain  a  levy  on  the  crops  which  are  alone  subject.^*^ 
And  a  writ  directed  against  the  crops  of  the  tenant  has  been 
regarded  as  sustaining  a  levy  on  the  crops  of  a  subtenant  sub- 
ject to  the  lien  which  is  sought  to  be  enforced.944  Occasionally 
the  statute  authorizes  an  attachment,  under  particular  circum- 
stances, against  the  tenant's  property  generally,  or  against  his 
personal  property ,9*^  and  in  such  a  case  the  writ  would  prop- 
erly direct  a  levy  accordingly. 

In  several  states  the  statute  provides  that  the  procedure  shall 
be  as  in  other  proceedings  by  attachment,946  and  this  presum- 
ably is  the  case  even  apart  from  such  a  provision. 


6*0  See  Alabama  Code  1907,  §  4740 
Arkansas,  Klrby's  Dig.  1904,  §  5041 
Kansas  Gen.  St.  1905,  §§  4077,  4078 
Mississippi  Code  1906.  §§  2848,  2849 


liable,  may  Intervene,  it  was  held, 
to  show  that  the  tenant's  crop  was 
sufficient  to  satisfy  the  lien.  Leh- 
man Bros.  V.  Howze,  73  Ala.  302. 


il/issoun  Rev.  St.  1899,  §  4123;  OfcZa-  ois  Delatvare    Rev.    Code    1893,    p. 

homa   Rev.    St.    1903,    §    3346;    Utah  873;    Kansas   Gen.    St.    1905,   §   4077 

Comp.  St.  1907,  §  1410.  (semble)  ;  Kentucky  St.  1903,  §  2302; 

»^i  Edwards    v.    Cooper,    28    Ark.  Mississippi  Code  1906,  §  2844;   Mis- 

466.  sotiri  Rev.  St.  1899,  §  4123;   Virginia 

842  Ellis    V.    Martin.    60    Ala.    394;  Code    1904,    §    2962;    West    Virginia 

Greeley  v.  Greeley,  12  Okla.  659,  73  Code  1906,  §  3541. 

Pac.  295.  946  AZafcfT??)^    Code    1907,    §    4741; 

943  Ellis  V.  Martin,  60  Ala.  394.  Iowa  Code  1897,  §  2993;  Kansas  Gen. 

944Agee    V.   Mayer   Bros.,    71    Ala.  St.  1905,  §  4078;  Kentucky  St.  1903, 

88.     The  subtenant,   whose   crop   is,  §  2303;  Missouri  Rev.  St.  §  4124. 
under  the  statute,  only  secondarily 


2096  ATTACHMENT.  §  351 

§  351.    Damages  for  wrongful  attachment. 

A  landlord  who  procures  the  issue  of  a  writ  of  attachTnent  on 
the  ground  that  rent  is  due  is  liable  in  damages,  it  seems,  if 
no  rent  is  due,^'^'^  as  he  is  if  he  procures  its  issue  on  false  alle- 
gations that  the  tenant  has  removed  or  is  about  to  remove  his 
property,  unless  he  had  probable  cause  for  belief  in  such  allega- 
tions.^^s  That  the  tenant  might  have  obtained  a  discharge  of 
the  attachment  by  giving  a  bond  is  immaterial.^^^  That  the 
landlord  acted  maliciously  in  procuring  the  writ  justifies  the 
award  of  exemplary  damages,^^*^  and  malice  may,  it  has  been 
said,  be  inferred  from  lack  of  probable  cause  ;^^i  but  not  from 
the  fact  that  the  tenant  has  valid  claims  against  the  landlord 
for  more  than  the  amount  of  the  claim  for  which  the  attach- 
ment was  issued,^''^  or  that  the  landlord,  being  entitled  to  dis- 
train, by  mistake  procured  a  writ  of  attachment  instead  of  a  dis- 
tress warrant.^  ^' 

In  an  action  on  account  of  an  attachment  based  on  the  tenant's 
intention  to  remove  his  crop  without  paying  rent,  the  tenant  may, 
it  has  been  held,  show  that  he  merely  contemplated  a  sale  sub- 
ject to  a  condition  that  the  purchaser  should  pay  the  rent  be- 
fore removing  the  erop.^^^ 

MTPatton  V.  Garrett,  37  Ark.  605;  sso  Weber  v.  Vernon,  2  Pen.  (Del.) 

Harger  v.  Spofford,  46  Iowa,  11;  Sig-  359,  45  Atl.  537. 

ler  V.  Murphy,  107  Iowa  128,  77  N.  951  Weber  v.  Vernon,  2  Pen.  (Del.) 

W.   577.     But  as   to  the  two   latter  359^  45  ^|.|   53-7 

cases,  see  Smeaton  v.  Cole,  120  Iowa,  ,;,  gn,eaion  y.  Cole.  120  Iowa.  368. 

368.  94  N.  W.  909.  g^  ^  ^   g^g 

»48  Weber  v.  Vernon.  2  Pen.  (Del.) 

359,  45  Atl.    537;    Briscoe   v.   McEl-  «"  Lawson  v.  Goodwin  (Tex.  Civ. 

ween,  43  Miss.  556;  Dillon  v.  Porier,  -^PP-^   ^^  ^-  ^-  279. 

34  La.  Ann.  1100.  954  Masterson   v.   Phinizy,   56  Ala. 

949  Weber  v.  Vernon.  2  Pen.  (Del.)  336. 
S59,  45  Aa.  537. 


CHAPTER  XXXni. 

RIGHTS  OF  ACTION  AGAINST  THIRD  PERSONS. 

§  352.    Physical  injuries  to  premises. 

a.  Action  by  landlord. 

b.  Action  by  tenant. 

353.     Interference  with  rights  of  enjoyment. 

a.  Action  by  landlord. 

(1)  Rule  ordinarily  asserted. 

(2)  Theory  of  recovery, 

(3)  Form  of  action. 

(4)  Averments  of  injury. 

(5)  Measure  of  damages. 

(6)  Loss  or  reduction  of  rent. 

b.  Action  by  tenant. 

(1)  Right  of  action. 

(2)  Interference  existing  prior  to  lease. 

(3)  Form  of  action. 

(4)  Measure  of  damages. 

(5)  Effect  of  contract  by  landlord. 

354.  Taking  for  public  use. 

355.  Interference  with  relation  of  tenancy. 

356.  Action  of  ejectment. 

§  352.    Physical  injuries  to  premises. 

a.  Action  by  landlord.  In  case  a  third  person  wrongfully 
causes  a  direct  physical  injury  to  the  premises  leased,  affecting 
the  corporeal  substance  thereof,  so  that  the  premises  may  or  will 
revert  to  the  landlord  in  a  deteriorated  condition,  the  landlord 
may  recover  on  account  of  such  injury.^     Accordingly,  the  land- 

1  Bedingfield  v.  Onslow,  3  Lev.  209;  New  York  El.  R.  Co.,  128  N.  Y.  559,  29 

George  v.  Flsk,  32  N.  H.  32;   Gour-  N.   B.   65;    Strohlburg  v.   Jones,   7S 

dier  V.  Cormack,  2  E.  D.  Smith   (N.  Cal.   381,    20    Pac.   705;    Tinsman    v. 

Y.)   200;   McConnel  v.  Kibbe,  33  111.  Belvidere  Delaware  R.  Co.,  25  N.  J. 

175,  85  Am.  Dec.  265;  Kernochan  v.  Law  (1  Dutch.)  255,  64  Am.  Dec.  415; 

L.  and  Ten.  132. 


2098 


ACTIONS  AGAINST  THIRD  PERSONS. 


§352 


lord  has  a  right  of  action  against  one  who  injures  or  removes  a 
building  or  part  of  a  building  on  the  lands  leased,^  or  a  fence 
thereon.3  And  likewise,  since  trees  and  perennial  plants  are  a 
part  of  the  land,  which  belong  to  the  landlord  and  not  to  the  ten- 
ant, the  former  has  a  right  of  action  against  one  by  whom  they 
are  injured  or  removed.*  And  while  the  landlord  cannot  recover 
for  an  injury  to  the  growing  grass,  which  may  be  cut  or  other- 
wise utilized  by  the  tenant,^  he  may  recover  for  permanent  injury 
to  the  sod  or  growth  of  the  grass.^  He  may  also  recover  against 
one  removing,'^  undermining,^  or  injuring,^  the  soil. 


Bly  V.  Edison  Elec.  Illuminat'iag 
Co.,  172  N.  Y.  1,  64  N.  E.  745,  58 
L.  R.  A.  500;  Nashville,  C.  &  St.  L. 
R.  Co.  V.  Heikens,  112  Tenn.  378,  79 
S.  W.  1038,  65  L.  R.  A.  298. 

2Ho:king  v.  Phillips,  3  Exch.  168; 
Ott  V.  Grice,  15  N.  C.  (4  Dev.  Law) 
477;  Lienow  v.  Ritchie,  25  Mass.  (8 
Pick.)  235  (removing  part  of  house) ; 
Gushing  v.  Kenfield,  87  Mass.  (5  Al- 
len) 307;  Ridge  v.  Railroad  Trans- 
fer Co.,  56  Mo.  App.  133  (brenking 
window) ;  Green  v.  Sun  Co.,  32  Pa. 
Super.  Ct.  521  (corrosion  of  roof  by 
noxious  fumes) ;  Railway  v.  Rags- 
dale   (Tex.  Civ.  App.)    60  S.  W.  317. 

3  Brown  v.  Bridges,  31  Iowa,  138; 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Smith,  3 
Tex.  Civ.  App.  483,  23  S.  W.  89; 
Taylor  v.  Wright,  51  App.  Div.  97, 
64  N.  Y.  Supp.  344.  In  Dills  v. 
Hampton,  92  N.  C.  565,  the  landlord 
v/as  regarded  as  entitled  to  recover 
against  one  who  tore  down  a  fence 
and  moved  it  back  on  the  land,  so 
as  to  leave  unprotected  fruit  trees 
excepted   from  the  lease. 

4Bedingfield  v.  Onslow,  3  Lev. 
209;  Bulkley  v.  Dolbeare,  7  Conn. 
232;  Fitch  v.  Gosser,  54  Mo.  267; 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Settegast, 
79  Tex.  256,  15  S.  W.  228;  Aycock  v. 
Raleigh  &  A.  Air-Line  R.  Co.,  89  N.  C. 
321;  Parker  v.  Shackelford,  61  Mo. 
68   (destruction  of  hedges). 


The  landlord  may  sue  a  purchaser 
of  timber  wrongfully  severed  by  the 
tenant  or  another.  Dorsey  v.  Moore, 
100  K.  C.  41,  6  S.  E.  270.  An.-'.  S3e 
cases  cited  2^8  Am.  &  Eng.  Encyc. 
Law   (2d  Ed.)    538. 

5  See  post,  notes  14,  128. 

6  Noyes  v.  Stillman,  24  Conn.  15; 
Potts  V.  Clarke,  20  N.  J.  Law  (Spen- 
cer) 537;  Missouri,  K  &  T.  R.  Co.  v. 
Fulmore  (Tex.  Civ.  App.)  26  S.  W. 
238. 

"  Mayfair  Property  Co.  v.  Johnston 
[1894]  1  Ch.  508;  Lachman  v. 
Deisch,  71  111.  59  (semble);  City  of 
Cartersville  v.  Lyon,  69  Ga.  577 
(taking  of  gravel). 

8  Alston  V.  Scales,  9  Bing.  3.  In 
Freer  v.  Stotenbur,  2  Abb.  Dec.  (N. 
Y.)  189,  it  is  decided  that  a  lessor 
can  recover  for  the  taking  of  stone 
by  a  third  person,  if  the  lessee  had 
no  right  thereto  by  the  terms  of  the 
lease.  It  would  seem  that  even  if 
the  lessee  had  a  ri-^ht  to  take  stone, 
the  reversionary  interest  in  the  land- 
lord should  entitle  him  to  sue  a  third 
person  taking  it,  unless  the  lessee 
was  to  be  regarded  as  being  given  a 
fee  simple  estate  in  the  stone  in 
place. 

0  Potts  V.  Clarke,  20  N.  J.  Law 
(Spencer)  537  (overflowing  the  land 
and  so  making  it  "rotten,  boggy  and 
miry"). 


§  352  INJURIES  TO  PREMISES.  2099 

Upon  what  may  be  regarded  as  an  analoc^ons  theory,  the  land- 
lord has  been  allowed  to  recover  on  account  of  a  diminution  in 
the  value  and  utility  of  the  building  on  the  premises  as  a  result 
of  the  unauthorized  action  of  the  local  authorities  in  taldng  it  for 
the  purpose  of  a  smallpox  hospital,  with  the  result  that  the  land- 
lord could  not  thereafter  induce  persons  to  occupy  it.i'^ 

If  the  injury  is  merely  temporary  in  character,  the  landlord 
has  no  right  of  action,  the  tenant  being  alone  entitled  to  sue, 
as  being  the  sole  sufferer  therefrom.^i  Accordingly  it  has  been 
decided  that  the  landlord  cannot  sue  for  a  mere  entry  on  the 
land  by  walking  or  riding  thereon,i2  for  injuries  to  the  ten- 
ant's erops^^  or  growing  gras.s,^4  or  even  for  the  erection  on  the 
land  of  a  board,  screen  or  "hoarding,"  not  intended  to  remain 
and  removable  in  five  minutes.i^  Likewise  it  has  been  decided 
that  the  landlord  has  no  right  of  action  when  the  injury  is  ta 
a  structure  which  is  properly  to  be  regarded  as  the  property  of 
the  tenant  and  not  of  the  landlord.^*^  The  landlord  under  a 
building  lease  has  been  held  to  have  no  right  of  action,  on  ac- 
count of  a  temporary  flooding  of  the  premises,  on  the  theory 
that  the  selling  value  of  the  reversion  and  of  the  "ground  rent" 
incident  thereto  is  thereby  diminish ed.^''^ 

10  Hersey  V.  Chapin,  162  Mass.  176,  Kretschmar,  24  Wis.  283;  Drake  v. 
38  N.  E.  442.  Chicago,  R.  I.  &  P.  R.  Co.,  70  Iowa, 

11  Coney  v.  Brunswick  &  F.  Steam-  59,  29  N.  W.  804;  Gulf,  C.  &  S.  F.  R. 
boat  Co.,  116  Ga.  222,  42  S.  B.  498;  Co.  v.  Smith,  3  Tex.  Civ.  App.  483, 
Hastings  v.  Livermore,  73  Mass.  (7  23  S.  W.  89.  But  he  may  sue  for  in- 
Gray)    194.  jury  to  such  part  of  the  crop  as  be- 

12  Baxter  v.  Taylor,  4  Barn.  &  Adol.  longs  to  him,  as  when  it  was  stipu- 
72;  Peck  v.  Cain,  27  Tex.  Civ.  App.  lated  that  he  should  have  all  the 
38,  63  S.  W.  177.  But  if  there  is  a  cornstalks.  Babley  v.  Vyse,  48  Iowa, 
demise  of  the  surface  only,  the  land-  481,  and  see  post,  at  note  119. 

lord   may   recover   damages   against  i-t  Little    v.    Palister,     3    Me.     (3 

one  making  holes  so  as  to  injure  the  Greenl.)  6;  Potts  v.  Clarke,  20  N.  J. 

subsoil.     Cox  V.  Glue,  5  C.  B.  533.  Law   (Spencer)    536.     Compare  post. 

That  the  tenancy  has  come  to  an  at  note  128. 

end  does  not  enable  the  landlord  to  is  Cooper  v.  Crabtree,  20  Ch.  Div. 

sue  for  a  trespass  on  the  tenant.  Pil-  589,  afg.  19  Ch.  Div.  193. 

grim  V.   Southampton  &  Dorchester  le  Little    v.     Palister,     3     Me.     (3 

R.  Co.,  18  L.  J.  C.  P.  330.  Greenl.)  6. 

13  St.  Louis,  A.  &  T.  R.  Co.  v.  Trigg,  i^  Rust  v.  Victoria  Graving  Dock 
63  Ark.  536,  40  S.  W.  579;   Stoltz  v.  Co.,  36  Ch.  Div.  113. 


2100  ACTIONS  AGAINST  THIRD  PERSONS.  §  35^ 

The  fact  that  the  landlord  has  a  right  of  action  against  the  ten- 
ant for  permitting  an  injury  to  the  premises/^  or  in  case  the 
latter  fails  to  repair  the  injury/^  should  not,  it  is  conceived,  affect 
the  landlord's  right  of  action  against  the  person  who  actually 
commits  the  injury .20  And  that  it  does  not  have  such  an  effect 
appears  to  be  necessarily  involved  in  the  decisions  above  cited, 
recognizing  a  right  of  action  in  the  landlord  against  a  third  person, 
since  it  is  generally  conceded  that,  in  the  case  of  direct  physical 
injury  to  the  premises  by  a  third  person,  the  tenant  is  liable  to 
the  landlord  as  for  waste. 21  That  one  injured  by  another  has  a 
means  of  obtaining  indemnity  from  a  third  person  is  no  reason 
for  excluding  an  action  against  the  wrongdoer  on  account  of  such 
injury.22  If  J  however,  the  landlord's  claim  against  the  tenant 
has  actually  been  satisfied,  such  satisfaction  may  properly,  it 
would  seem,  be  asserted  in  defense  to  an  action  by  the  landlord 
against  the  original  wrongdoer,  or  in  mitigation  of  damages, 
since  the  latter  is  presumably  liable  to  the  tenant  for  the  amount 
which  the  latter  has  thus  been  compelled  to  pay  to  the  landlord.^^ 

There  are  decisions  to  the  effect  that  the  landlord  has  no 
right  of  action  against  a  third  person  erecting  a  fence  on  the 
land  and  thus  debarring  the  tenant  from  the  possession  and  use 

18  See  ante,  §  110.  the  tenant  for  any  injury   done  to 

19  See  ante,  §§  115-118.  the  inheritance,   that   action   is   the 

20  The  view  stated  in  the  text  is  only  remedy  the  reversioner  has,  and 
apparently  supported  by  Bannon  v.  he  can  maintain  no  action  against 
Mitchell,  6  111.  App.  (6  Bradw.)  17;  the  stranger,  who  in  fact  commits  the 
Vance  v.  San  Antonio  (Tex.  Civ.  waste;  but  I  take  the  law  to  be  clear- 
App.)  60  S.  W.  317.  There  are  sug-  ly  settled  otherwise;  and  that  the 
gestions  of  a  contrary  view  in  Hay-  reversioner  may  in  all  cases  main- 
den  V.  Consolidated  Mining  &  Dredg-  tain  an  action  on  the  case  against 
ing  Co.,  3  Cal.  App.  136,  84  Pac.  422;  such  stranger." 

Taylor  v.  Wright,  51  App.  Div.  97,  64  21  See  ante,  §  110. 

N.  Y.   Supp.  344;   Johnson  v.  Chap-  22  One  may,  for  instance,  sue  the 

man,  43  W.  Va.  639,  28  S.  B.  744,  and  person    injuring   him    in    person    or 

see  post,  at  notes  32-42.  property  though  he  is  in  a  position 

In  Attersoll  v.   Stevens,  1  Taunt,  to  obtain  indemnity   for  the  injury 

183,  it  is  said  by  Chambre,   J.,  "It  from  an  insurer.     And  so  a  creditor 

has  been  supposed,  in  the  course  of  may    recover    from    the    debtor    al- 

the  decision  in  the  present  case,  that  though    there    is   a   guaranty   by   a 

wbere  there  is  an  existing  tenancy  third    person    against    loss    by    the 

for  life  or  years,  so  that  an   action  creditor  on  account  of  the  debt, 

of   waste    may    be   brought    against  23  See  post,  at  notes  32-42, 


352 


INJURIES  TO  PREMISES. 


2101 


of  part  of  the  property,  this  being  considered  a  merely  temporary 
injury .24  In  other  cases,  however,  a  contrary  view  is  adopted.^^ 
As  has  been  remarked,  there  is  in  principle  but  little  difference 
between  an  injury  from  taking  something  off  the  land  and  from 
putting  something  on  it,^^  and  the  question  of  injury  to  the  re- 
version in  such  a  case  might,  it  seems,  be  left  to  the  jury  for  de- 
cision. 

In  an  action  by  the  landlord  on  account  of  a  direct  injury  to 
the  premises,  the  measure  of  damage  was,  in  an  English  case,".28 
stated  to  be  determinable  *'by  how  much  less  the  premises  would 
sell  (for)  in  consequence  of  the  wrongful  act  of  the  defendant," 
by  which  is  meant,  it  would  appear  from  the  context,  the  diminu- 
tion in  the  value  of  the  reversion.  This  accords  with  the  rule 
as  to  the  measure  of  damages  for  an  injury  to  land.  Occasion- 
ally, perhaps,  the  cost  of  repairing  the  injury  might  be  adopted 

24  Tobias  V.  Cohn.  36  N.  Y.  363;  26  Arneson  v.  Spawn,  2  S.  D.  269, 
Walden  v.  Conn,  84  Ky.  312,  1  S.  W.  49  N.  W.  1066,  39  Am.  St.  Rep.  783 
537  4  Am  St.  Rep.  204.  In  the  lat-  In  this  case  the  landlord  was  held 
Q6i,  4  Aui.  ^^     ^^^  ^  ^         ^^  ^^^.^^  ^^  account 

ter  case,  however,  the  -onvts^YS^  of  defendant's  act  in  erecting  a  fence 
"NO  loss  of  rent  or  injury  to  the  re-  ^^  ^^^  ^^^^^^  ^^^^.^^^^  ^^  ^^  ^^  ^^_ 
version  being  averred.  In  Kansas  ^^^^  ^^^^  ^^^^^^^  ^^  defendant's  farm 
City,  Ft.  Scott  &  M.  R.  Co.  v.  King,  ^^^^^  ^  ^^^.^  ^^  ^.^^^^^  principally 
63  Ark.  251,  38  S.  W.  13,  it  was  de-  ^^^  ^^^  ^^^^^^  ^j^^^.  ^^^.^  initiated  a 
cided  that  the  landlord  had  no  right  possession  adverse  to  the  landlord, 
of  action  for  the  erection  of  a  fence  g^^  generally  the  statute  is  not  re- 
which  cut  off  the  tenant  from  the  use  garded  as  running  against  the  rever- 
of  a  spring.  In  Cooper  v.  Crabtree,  gioner  or  remainderman  during  the 
20  Ch.  Div.  589,  it  was  decided  that  continuance  of  an  outstanding  partic- 
the  landlord  was  not  entitled  to  relief  ular  estate  which  existed  at  the  time 
against  the  erection  of  a  small  of  the  disseisin,  that  Is,  it  will 
"hoarding"  on  poles  on  the  leased  not  run  against  one  who  by  reason 
premises,  the  structure  being  not  of  of  lack  of  right  to  the  possesion  can- 
a  "permanent"  character,  but  "re-  not  sue  for  the  interference  with  the 
movable   in  five  minutes,"   and   not   possession.  See  Angell,  Limitations, 


Intended  to  remain  over  a  year.    The 
decision  was  on  a  bill  for  an  injunc- 


371,  372;  Buswell,  Limitations.  §§ 
271-273.       The  theory  of  the  above 


tion,  but  there  was  a  dictum  to  the   case    was    apparently    approved    in 


effect   that   an   action   for   damages 
would  not  lie 


Southern  R.  Co.  v.  State,  116  Ga.  276, 
42  S.  E.  508,  but  was  regarded  as  in- 


25  Barbee  v.  Shannon.  1  Ind.  T.  199,    applicable  because  the  lessor  was  the 
40  S.  W.  584;   Arneson  v.   Spawn.  2    state. 


S.  D.  269,  49  N.  W.  1066,  39  Am.  St. 
Rep.  783. 


27,  28  Hosking  v.  Phillips.  3  Exch. 


168. 


2102  ACTIONS  AGAINST  THIRD  PERSONS.  §  352 

as  the  measure  of  damages,^^  and  if  by  reason  of  the  injury  the 
tenant  has  a  right  to  refuse  payment  of  rent,  the  consequent  loss 
of  rent  to  the  landlord  might  possibly  be  considered.^*^  That 
the  tenant  lias  an  option  to  purchase  the  reversion  is  obviously 
no  reason  for  reducing  the  damages  otherwise  recoverable  by 
the  landlord.^^ 

b.  Action  by  tenant.  Not  only  has  the  landlord  a  right  of 
action  for  direct  injuries  to  the  land  leased,  or  to  structures  there- 
on, but  the  tenant  may  also  have  a  right  of  action  therefor  by 
reason  of  the  consequent  diminution  in  the  value  of  his  estate, 
such  injury,  if  of  a  substantial  character,  being  vi^ell  calculated 
to  affect  the  value  of  the  rights  of  present  possession  and  enjoy^ 
ment.  His  right  of  action  for  such  injury  to  his  rights  of  pos- 
session and  enjoyment  will  be  considered  in  the  next  section. 

In  several  cases  a  right  of  action  in  the  tenant  is  asserted,  not 
only  on  account  of  the  injury  to  his  rights  of  possession  and  en- 
joyment, but  also  on  account  of  the  injury  to  the  reversion 
caused  by  the  wrongful  act,  on  the  theory  that  the  tenant,  being 
himself  liable  to  the  landlord  on  account  of  such  injury ,^2  or 
under  an  express  obligation  to  repair  it,^^  should  be  allowed  to 
recover  from  the  wrongdoer  the  amount  for  which  he  may  thus 
be  made  liable.^^     The  language  of  these  cases  is  ordinarily  suffi- 

20  Austin  V.  Hudson  River  R.  Co.,  C.  J.,  in  Attersol  v.  Stevens,  1  Taunt. 

25  N.  Y.  334.  183,  in  Pantam  v.  Isham,  1  Salk.  19, 

30  Austin  V.  Hudson  River  R.  Co.,  and    in    West   v.    Treude,    Cro.    Car. 

25  N.  Y.  334.  187,  Sir  Wm.  Jones,  224.     In  Anth- 

aiHayden    v.     Consolidated     Min-  ony  v.  New  York,  P.  &  B.  R.  Co.,  162 

ing  &  Dredging  Co.,  3  Cal.  App.  136,  Mass.  60,  37  N.  E.  780,  it  was  held 

84  Pac.  422.  that  where  the  lease  provided  that 

32  See   ante,    §   110.  tfie    lessees   should   keep  the   build- 

33  See  ante,  §§  115-118.  ings  in  repair  and  fully  insured,  and 

34  Cook  V.  Champlain  Transp.  Co.,  should  rebuild  or  repair  in  case  of 
1  Denio  (N.  Y.)  91;  Austin  v.  Hudson  injury  or  destruction  by  fire,  and 
River  R.  Co.,  25  N.  Y.  334;  Ulrich  v.  that  they  might  alter  or  remove  the 
McCahe,  1  Hilt.  (N.  Y.)  251;  Moeckel  buildings  provided  this  did  not  di- 
V.  Cross  &  Co.,  190  Mass.  280,  76  N.  E.  minish  the  value  of  the  premises,  the 
447  (semble);  Le  Salg  v.  Dougher-  lessees  could  recover  the  full  value 
ty,  oO  Misc.  455,  62  N.  Y.  Supp.  510  of  a  building  from  a  railroad  com- 

( tenant   bound    by    covenant    to   re-  pany  which  negligently  set  fire  to  it. 

pair) ;  Weston  v.  Gravlin,  49  Vt.  507  It  was  said  that  the  lessees  were  en- 

( dictum).     The    same    view   is   sug-  titled   "to   recover  full   damages  for 

geste'd  in  the  opinion  of  Mansfield,  the  destruction  of  the  buildings,  as 


§  352  INJURIES  TO  PREMISES.  21'J3 

ciently  broad  to  uphold  a  recovery  by  the  tenant  for  the  injury  to 
the  reversion  even  though  he  has  not  actually  satisfied  his  liability 
to  the  landlord,  and  there  is  one  decision^^  in  which  this  view 
is  expressly  asserted,  at  very  considerable  length,  chiefly  on  the 
ground  that  otherwise  the  tenant  might  be  subjected  to  loss.^° 
There  are  on  the  other  hand  two  decisions  which  forcibly  oppose 
the  view  that  the  tenant  may  recover  for  the  injury  to  the  re- 
version when  he  has  not  previously  satisfied  the  landlord  on  ac- 
count of  such  injury ,2^  for  the  reason  that  to  allow  a  recovery 

if  they  were  the  bailees  of  the  build-  mainderman  for  the  purpose  of  per- 
ings,  as  personal  property,  and  that  fecting  his  right  of  action,  even 
their  obligation  to  rebuild  the  build-  were  the  remainderman  ascertain- 
ings,  and  their  right  to  remove  able.  The  court  also  reasons  that 
them  and  erect  other  buildings,  gave  the  particular  tenant  could  not  safe- 
to  the  lessees  an  interest  in  the  ly  pay  to  the  remainderman  any  par- 
buildings,  apart  from  their  interest  ticular  sum,  since  he  could  not  know 
in  the  land,  sufficient  to  enable  them  the  amount  of  the  injury  until  this 
to  recover  such  damages.  It  does  was  judicially  ascertained,  and  con- 
not  appear  that  the  lessors  are  not  sequently  v/ouIJ  _ave  to  defer  his 
content  that  entire  damages  shoula  action  against  the  third  person  un- 
be  recovered  by  and  paid  to  the  til  he  had  been  sued  by  the  remain- 
plaintilTs  in  this  action.  If  the  les-  derman  or  reversioner.  Purther- 
sors  have  any  interest  in  the  dam-  more  it  is  asserted  that  the  tenant 
ages  they  can,  before  they  are  paid,  should  be  allowed  to  recover  the  en- 
■  intervene  by  proper  proceedings."  tire  damages  in  order  that  he  might 
In  Coale  v.  Hannibal  &  St.  J.  R.  Co.,  repair  the  injury  for  the  purpose  of 
60  Mo.  227,  it  was  held  that  a  tenant  his  own  enjoyment, 
at  will  could  not  recover  against  a  37  Wood  v.  Griffin,  46  N.  H.  230; 
railway  company  for  setting  fire  to  California  Dry-Dock  Co.  v.  Arm- 
a  fence,  for  the  reason  that  such  a  strong,  8  Sawy.  523,  17  Fed.  216.  In 
tenant  Is  not  liable  to  the  landlord  apparent  accordance  with  these 
for  permissive  waste.  As  to  wheth-  cases  are  those  deciding  that  the 
er  allowing  a  third  person  to  injure  tenant  has  no  right  of  action  except 
the  premises  is  permissive  rather  on  account  of  the  injury  to  his  pos- 
than  voluntary  waste,  see  ante,  §  sessory  interest,  no  reference  being 
110.  made  to  a  possible  right  of  recovery 
35  Dix  V.  Jaquay,  94  App.  Div.  554,  by  reason  of  his  liability  to'  the  land- 
88  N.  Y.  Supp.  228.  lord.  Grand  Rapids  Booming  Co.  v. 
86  This  case  involved  an  action  by  Jarvis,  30  Mich.  308;  Ridge  v.  Rail- 
a  life  tenant,  and  the  reasoning  of  road  Transfer  Co.,  56  Mo.  App.  133. 
the  court  was  in  part  based  upon  The  doctrine  of  the  cases  above 
the  fact  that  the  tenant  might,  in  cited  is  referi-ed  to  with  approval  in 
case  the  remainder  were  contingent,  Nashville,  C.  &  St.  L.  R.  Co.  v.  Heik- 
be  unable  with  safety  to  pay  over  ens,  112  Tenn.  378,  79  S.  W.  1038,  65 
the  amount  of  the  injury  to  the  re-  L.  R.  A.  298. 


2104 


ACTIONS  AGAINST  THIRD  PERSONS. 


§352 


by  him  before  he  has  made  such  satisfaction  might  cause  a  loss 
to  the  landlord.^s  Since  the  law,  in  imposing  an  absolute  liabil- 
ity upon  the  tenant  for  injuries  to  the  premises  caused  by  a  third 
person,  evidently  regards  the  tenant  as  a  wrongdoer  for  allow- 
ing such  injuries,  it  would  seem  that,  as  between  the  two  views 
asserted,  that  which  enures  to  the  protection  of  the  landlord, 
who  has  not  been  at  fault,  should  be  preferred  to  that  which, 
though  protecting  the  tenant,  a  wrongdoer,  may  possibly  cause 
a  loss  to  the  landlord.  It  has  been  suggested  that  the  tenant 
should  have  the  right  to  recover  for  damage  to  the  reversion, 
by  analogy  to  the  rule  that  the  bailee  of  chattels  may  recover  the 


38  In  Wood  V.  Griffin,  46  N.  H.  230, 
it  is  said  by  Bellows,  J.,  that  "it  ia 
clear  from  the  adjudged  cases,  that 
the  claims  of  the  tenant  and  rever- 
sioner can  be  separated,  that  they 
are  in  fact  distinct,  and  that  each 
may  maintain  a  suit  for  the  injury 
done  to  him,  and  that  both  may  be 
pending  at  the  same  time.  How, 
then,  can  the  tenant  include  in  his 
damages  the  injury  to  the  reversion? 
If  he  can  in  any  case,  how  is  the  de- 
fendant to  avail  himself  of  the  fact 
that  another  action  is  pending  by 
him  in  remainder  or  reversion? 
Again,  there  is  no  necessity  for 
arming  the  tenant  with  such  power. 
If  he  is  entitled  to  recover  for  the 
injury  to  the  inheritance,  whether 
he  has  satisfied  the  reversion  or  not, 
his  recovery  must  be  a  bar  to  a  suit 
by  the  landlord,  and  still  the  tres- 
passer might  avail  himself,  by  way 
of  defense,  of  a  license,  or  admis- 
sion, by  the  tenant  which  might  in 
effect  defeat  the  landlord's  claim 
against  such  trespasser,  and  besides 
the  landlord  might  find  his  claim 
against  the  trespasser  defeated  by 
the  resuiL  of  a  suit  prosecuted  with- 
out his  assent,  in  a  manner  opposed 
to  his  wishes,  or  by  his  inability  to 
obtain  from  the  tenant  himself  the 


fruits  of  the  suit  against  such  third 
person."  In  California  Dry  Dock 
Co.  V.  Armstrong,  17  Fed.  216,  Saw- 
yer, J.,  after  quoting  at  length  from 
the  case  previously  cited,  says  that 
"the  tenant  cannot  recover  before 
repairing,  or  satisfying  the  landlord, 
■for  the  reason  that,  till  then,  his 
cause  of  action  on  this  ground  has 
not  matured.  He  has  sustained  no 
injury  till  he  has  done  something  by 
way  of  repairs,  or  towards  satisfy- 
ing the  landlord  for  the  injury  to 
the  inheritance.  He  may  never  do 
either,  and  he  certainly  ought  not 
to  recover  unless  he  does  one  or 
the  other.  A  recovery  by  an  irre- 
sponsible tenant  may  wholly  defeat 
the  remedy  of  the  landlord.  The 
tenant  ought  not  to  recover  any 
more  than  he  pays  in  satisfaction, 
or  necessarily  expends  in  repairs; 
and  if  he  has  in  fact  repaired,  or 
made  satisfaction,  he  cannot  recover 
more.  Should  he  be  unnecessarily 
extravagant  in  either,  he  might  re- 
cover less.  He  may  compromise  at 
one-half  or  one-fourth  the  amount 
claimed.  The  extent  of  the  liability 
should,  in  some  mode,  be  fixed  be- 
fore he  is  permitted  to  maintain  a 
suit." 


§  352  INJURIES  TO  PREMISES.  2105 

entire  amount  of  the  damage  to  the  property  as  against  the 
person  causing  the  damage.^^  And  it  may  be  admitted  that  the 
argument  in  opposition  to  a  right  of  recovery  of  the  whole  dam- 
age by  the  tenant  would,  so  far  as  it  is  based  on  the  possible  loss 
to  the  landlord,  apply  as  well  to  recovery  by  a  bailee,  conceding 
this  to  be  based  on  the  possible  loss  to  the  bailor.  But  the  right 
of  recovery  in  the  bailee  finds  its  origin,  it  seems,  in  the  exclusive 
importance  imputed  in  early  times  to  the  right  of  possession.^" 
and  is  independent  of  any  liability  on  the  part  of  the  bailee  to 
the  bailor,4i  while  the  asserted  right  of  recovery  in  a  tenant 
is  in  terms  based  exclusively  on  the  existence  of  a  liability 
on  his  part  to  the  landlord.^2 

A  tenant  under  a  lease  has  obviously  no  right  of  action  on  ac- 
count of  a  direct  physical  injury  to  land,  or  to  structures  or 
growths  thereon,  if  the  injury  occurred  before  the  making  of  the 
lease.43  The  case  is  similar  to  that  of  a  sale  of  property  previously 
injured.  The  wrong  is  to  the  person  or  persons  interested  in  the 
land  at  the  time  of  the  doing  of  the  injury,  and  not  to  persons 
who  may  acquire  interests  in  the  land  thereafter,  nor  does  the  con- 
veyance of  an  interest  in  the  premises,  whether  in  fee  simple, 
for  life,  or  for  years,  transfer  a  right  of  action  for  the  wrong 
previously  committed.  It  is  only  when  the  circumstances  show 
a  continuance  or  repetition  of  the  previous  wrong  that  the  grantee 
or  lessee  has  any  right  of  action. 

39  Dix  V.  Jaquay,  94  App.  Div.  554.  landlord  are  distinctly  marked  and 
88  N.  Y.  Supp.  228.  easily  separated;  and  for  injuries  to 

40  See  Holmes  on  The  Common  either  there  are  appropriate  and  dis- 
Law,  c.  5,  "Bailments."  tinct  remedies;   while  in  respect  to 

41  The  Winkfield  [1902]  Prob.  Div.  goods  there  is,  in  general,  no  such 
42;  The  Jersey  City,  2  C.  C.  A.  365,  distinction;  and  such  is  the  effect 
51  Fed.  527,  1  U.  S.  App.  244;  Kel-  given  by  the  law  to  the  fact  of  pos- 
logg  V.  Sweeney,  1  Lans.  (N.  Y.)  397,  session  that  either  trespass  or  trover 
46  N.  Y.  291,  7  Am.  Rep.  333.  Con-  may  be  maintained  against  one  who 
tra,  Buddin  v.  Fortunato,  16  Daly,  wrongfully  deprives  another  of  such 
195,  10  N.  Y.  Supp.  115.  possession       without      any      injury 

42  In  Wood  V.  GrifHn,  46  N.  H.  230,  (quaere,  inquiry)  as  to  the  ultimate 
pnpra,  it  is  said  that  "in  the  case  of  title." 

lands  in  the  possession  of  a  tenant,  43  See  McConnel  v.  Kibbe,  33  111. 
his  interest  and  the  interest  of  the    175,  85  Am.  Dec.  265. 


2106  ACTIONS  AGAINST  THIRD  PERSONS.  §  ;;53 

§  353.    Interference  with  rights  of  enjoyment. 

a.  Action  by  lajidlord — (1)  Rule  ordinarily  asserted.  Of 
cases  involving  the  question  of  the  landlord's  right  to  sue  for  in- 
juries caused  by  the  act  of  a  third  person  during  the  existence 
of  the  tenancy,  the  most  difficult  are  those  involving,  not  a  physi- 
cal injury  to  the  land  or  structures,  but  a  wrongful  interference 
by  such  third  person  with  a  "natural  right"  or  easement  appur- 
tenant to  the  leased  premises,^^  or  a  wrongful  assertion  by  him 
of  a  nonexistent  easement  upon  the  land  leased.  As  regards  the 
right  of  the  landlord  to  recover  in  such  a  case,  the  great  majority 
of  the  cases  support  the  view  that  if  the  interference  with  the 
exercise  of  the  rights  appertaining  to  the  leased  premises,  as 
being  the  result  of  the  erection  of  a  structure,  or  of  the  placing 
of  some  other  obstruction  in  a  particular  place,  will,  in  the  ordi- 
nary course  of  events,  continue  until  the  structure  or  article  is 
removed  by  an  exertion  of  force,  there  is  such  a  degree  of  per- 
manence in  the  condition  as  to  give  a  right  of  action  to  the  rever- 
sioner, provided,  it  seems,  the  jury  find  that  the  continuance  of 
the  condition  will  result  in  injury  to  the  landlord  ;^^'4'5  while  there 
is,  on  the  other  hand,  no  right  of  action  in  the  landlord  if  the 
injurious  interference  is  the  result  of  repeated  acts,  so  that  it  will 
cease  upon  the  mere  cessation  of  a  particular  course  of  action. 
As  supporting  the  distinction  above  stated,  reference  may  be 
made  to  the  following  eases :  It  has  been  decided  that  the  rever- 
sioner may  have  a  right  of  action  on  account  of  the  construction 
of  a  neighboring  house  in  such  a  way  as  to  pour  water  on  the 
leased  premises  from  its  eaves  and  spouts  ;^'^  on  account  of  the 

44  As    to    the    distinction    between  (Pa.)   9,  42  Am.  Dec.  214;   Hastings 

natural    rights    and    easements,    see  v.  Livermore,  73  Mass.  (7  Gray)  194; 

Goddard,  Easements   (9th  Ed.)    3;   1  Kankakee  &  S.  R.  Co.  v.  Horan,  131 

Tiffany,  Real  Prop.  §  304.  111.    288,    23    N.    E.    621;    Brown    v. 

45,46  Metropolitan  Ass'n  v.  Petch,  5  Bowen,  30  N.  Y.  519,  86  Am.  Dec.  406 

C.  B.    (N.  S.)    504;    Tucker  v.  New-  (dictum).     In   Baker  v.    Sanderson, 

man,   11   Adol.   &  E.   43;    Kidgill   v.  20  Mass.   (3  Pick.)   348,  and  Sumner 

Moor,  9  C.  B.  364;  Hastings  v.  Liver-  v.  Tileston,  24  Mass.    (7  Pick.)    198, 

more,  73  Mass.   (7  Gray)    194.  such  recovery  is  based  on  the  ground 

*7  Tucker  v.  Newman,  11  Adol.   &  that  the   landlord  reduced   the  rent 

E.  43.                     .  in  consequence  of  the  obstruction  of 

48  Ripka  V.  Sergeant,  7  Watts  &  S.  flow.     See  post,   note   80. 


§  353  INTERFERENCE  WITH  ENJOYMENT.  2107 

obstruction  of  the  flow  of  a  stream  by  the  erection  of  a  dam, 
to  the  injury  of  the  leased  premises  ;4^  the  obstruction  of  an  ease- 
menti  of  light  by  the  erection  of  a  wall  or  other  structure  j'^^  and 
the  obstruction  of  the  access  for  boats  and  rafts  to  the  leased 
premises  by  the  construction  of  a  railroad  embankment.-'^'^  In 
each  of  these  cases  the  condition  wrongfully  created  was  such 
as  to  continue  until  it  was  put  an  end  to  by  some  positive  act. 
On  the  other  hand,  a  right  of  action  has  been  denied  to  the  land- 
lord on  account  of  constant  noise  on  adjoining  premises  caused 
by  the  use  thereof  for  a  workshop,  such  use  being  liable  to  cease 
before  the  end  of  the  tenancy ,^oa  a,nd  it  has  been  decided  that 
there  is  no  actionable  injury  to  the  reversion  as  a  result  of  smoke 
issuing  from  the  defendant's  factory  chimney,  since  there  is  no 
certainty  that  the  defendant  will  continue  to  make  fires  and  to 
create  smoke.^i  The  reversioner  has  also  been  denied  any  recov- 
ery on  account  of  the  action  of  a  neighboring  property  owner 
in  using  a  dam  and  sluiceways  in  such  a  manner  as  to  "pen 
back"  the  water  by  day  and  discharge  it  by  night,  thereby  inter- 
fering with  the  working  of  the  mill  on  the  leased  premises,52  as 
well  as  on  account  of  the  use  of  a  neighboring  highway  as  a  sta- 
ble yard.53  There  are,  however,  one  or  two  cases  in  this  country 
apparently  opposed  to  the  view  that  the  landlord  has  a  right  of 
action  when  the  interference  is  the  result  of  a  structure  or  other 
condition  of  a  quasi  permanent  nature  •,^'*  and  conversely  in  Eng- 

49jesser    v.     Gifford,     4    Burrow,  landlord    no    right   of   action.     Mott 

2141;       Shadwell      v.      Hutchinson,  v.  Shoolbred,  L.  R.  20  Bq.  22. 

Moody  &  M.   350,   3   Car.   &  P.   615;  52  Beavers    v.    Trimmer,    25    N.    J. 

Metropolitan    Ass'n    v.    Fetch,    5    C.  Law  (1  Dutch.)  97. 

B.  (N.  S.)  504.  53  Mott  V.  Shoolbred,  L.  R.  20  Eq. 

so  Tinsman  v.  Belvidere  Delaware  22. 

R.  Co.,  25  N.  J.  Law  (1  Dutch.)  255,  e4  in  Kaspar  v.  Dawson,  71  Conn. 

C4  Am.  Dec.  415.  405,  42  Atl.  78,  it  was  decided  that  a 

Goa  Mumford   v.    Oxford,  W.   &  W.  reversioner   is   entitled  to  maintain 

R.   Co.,   1   Hurl.   &   N.   34;    Jones   v.  a  bill  for  an  injunction  to  restrain 

Chappcll,  L.  R.  20  Eq.  539.  the  owners  of  neighboring  property 

51  Simpson  v.  Savage,  1  C.  B.   (N.  from     continuing    to     pile     manure 

S.)   347.     Similarly  it  was  held  that  thereon,    on    the    ground    that    "the 

the  practice  of  defendants  in  using  fact  that  the  odors  rendered  living 

the  street  in  front  of  the  premises  in    the    plaintiff's    dwelling      houses 

as  a  place   in  which  to  leave   their  uncomfortable    and    disagreeable    to 

wagons   when  not   in   use  gave  the  his  tenants  was  itself  an  injury  to 


2108  ACTIONS  AGAINST  THIRD  PERSONS.  §  353 

land  there  is  a  decision  giving  a  right  of  action  to  the  landlord, 
on  account  of  the  noise  and  vibration  caused  by  the  operation 
of  a  factory  on  neighboring  land,^^  although,  it  seems  clear,  such 
noise  and  vibration  ^vould  cease  upon  a  cessation  of  the  actual 
operation  of  the  factory.  In  the  latter  case  the  court  regarded 
the  nuisance  as  in  effect  permanent  by  reason  of  the  fact  that,  in 
view  of  the  costly  character  of  the  factory,  and  that  it  was  ca- 
pable of  use  only  in  this  particular  way,  a  cessation  of  this  use 
was  not  to  be  anticipated. 

Applying  the  diatinetion  above  indicated,  the  obstruction  of  a 
right  of  way  appurtenant  to  the  leased  premises  would  give  a 
right  of  action  to  the  landlord  if  the  obstruction  were  such  as, 
in  the  ordinary  course  of  events,  to  remain  indefinitely,  unless 
removed  by  an  exertion  of  force,  and  only  then.  In  accordance 
with  this  view  are  decisions  to  the  effect  that  the  reversioner 
may  recover  on  account  of  the  obstruction  of  a  right  of  way  by 
the  digging  of  a  canal  across  it,'^'^  by  the  erection  of  a  fence  across 

plaintiff  in  his  property  rights."  It  ss  Meux's  Brewery  Co.  v.  City  of 
might  perhaps  have  been  considered,  London  Electric  Lighting  Co.  [1895] 
had  the  analogy  of  the  above  cited    1  Ch.  287,  317. 

English  cases  been  followed,  that  ee  Richardson  v.  Bigelow,  81  Mass. 
the  landlord  did  not  suffer  any  in-    (15  Gray)  154. 

jury  of  which  he  could  complain,  In  Van  Siclen  v.  New  York,  64 
since  the  neighboring  owners  might  App.  Div.  437,  72  N.  Y.  Supp.  209, 
cease  to  pile  the  manure  on  their  where  the  action  was  for  damages  for 
property  before  the  time  for  him  to  the  obstruction  of  a  street  in  front 
resume  possession.  of   the   leased  premises  by  the  dig- 

Also  apparently  opposed  to  the  ging  of  a  trench  and  for  an  injunc- 
view  usually  asserted  is  Cooper  v.  tion  against  the  further  mainte- 
Randall,  59  ^1.  317,  where  the  land-  nance  of  the  obstruction,  the  court 
lord  was  regarded  as  entitled  to  re-  said  that  "it  may  be  assumed,  in 
cover  damages  for  injury  caused  by  view  of  all  the  facts,  that  the  nuis- 
the  operation  of  a  flour  mill  on  ance  was  of  a  temporary  nature,"  and 
neighboring  land,  whereby  chaff,  so  decided  that  the  landlord  could' 
dust  and  dirt  were  thrown  upon  the  not  recover.  But  the  court  also  as- 
leased  premises.  It  does  not  clearly  sumed  that,  since  there  was  no  ap- 
appear,  however,  whether  the  action  peal  from  the  grant  of  an  injunc- 
was  for  injury  to  the  house  on  the  tion,  the  nuisance  had  been  abated, 
premises,  or  merely  for  injury  aris-  and  this  may  have  affected  its  view 
ing  from  the  interference  with  its  of  the  obstruction  as  being  tempor- 
comfortable  occupation.  ary  merely. 


§  353 


INTERFERENCE  WITH  ENJOYMENT, 


2  icy 


it,^^  by  the  fastening  of  a  gate  across  it,^^  and  even  by  the  placing 
thereon  of  articles  of  a  movable  character.^^ 

In  case  of  the  diversion  of  water  which  the  occupant  of  the 
premises  has  the  right  to  use,  the  landlord  has,  applying  the  same 
rule,  the  right  to  sue  if  the  diversion  is  effected  by  structures  or 
works  of  a  permanent  or  quasi  permanent  characterj^o  while  he 
would  not  have  such  right  if  the  diversion  is  caused  by  acts 
of  a  repeated  character,  or  by  a  condition  which  may  cease  of 
itself  before  the  end  of  the  tenancy.  Occasionally  the  landlord 
has,  by  the  terms  of  the  lease,  a  direct  interest  in  the  amount  of 
water  obtainable  during  the  tenancy,  and  such  interest  would  or- 
dinarily support  a  right  of  action  in  his  favor.ei    And  in  one  case 


57  Taylor  v.  Wright,  51  App.  Div. 
97,  64  N.  Y.  Supp.  344;  Okeson  v. 
Patterson,  29  Pa.  22.  In  neither  of 
these  eases  is  anything  said  as  to 
the  permanent  character  of  the  ob- 
struction. 

BSKidgill  V.  Moor,  9  C.  B.  364. 
But  in  Wallver  v.  Clifford,  128  Ala. 
672,  29  So.  588,  86  Am.  St.  Rep.  74, 
it  was  in  effect  decided  that  the  les- 
sor of  a  saloon  adjoining  a  hotel 
could  not  maintain  a  bill  for  an  in- 
junction to  restrain  the  hotel  keeper 
from  fastening  the  door  leading 
from  the  hotel  to  the  saloon,  the  in- 
jury not  being  of  a  permanent 
nature. 

59  Bell  V.  Midland  R.  Co.,  10  C.  B. 
(N.  S.)  287  (placing  coal  cars  across 
way  with  intention  of  keeping  them 
there)  ;  Gushing  v.  Adams,  35  Mass. 
(18  Pick.)  110  (depositing  building 
materials). 

In  McDonnell  v.  Cambridge  R.  Co., 
151  Mass.  159,  23  N.  E.  841,  it  was 
decided  that  an  obstruction  to  a 
right  of  way  by  the  placing  of  snow 
and  ice  thereon  gave  the  landlord 
no  right  to  re'^over  substantial  dam- 
ages, since  it  caused  him  no  substan- 
tial injury.  The  decision  was  in 
part  at  least  based  on  the  averments 


of  the  declaration,  which  were  that 
the  plaintiff,  his  servants  and  ten- 
ants, were  hindered  and  deprived  of 
the  fi-ee  use  and  enjoyment  of  the 
way  by  the  obstructions,  it  being 
said  in  the  opinion  that  "no  injury 
to  property  is  alleged,  and  if  any 
was  caused,  it  was  to  the  leasehold 
and  not  to  the  reversion." 

60  See  Halsey  v.  Lehigh  Valley  R. 
Co.,  45  N.  J.  Law,  26;  Rogers  v. 
Dickson,  10  U.  C.  C.  P.  481.  In 
Moody  V.  King,  74  Me.  497,  it  was 
decided  that  the  lessor  had  no  right 
of  action  on  account  of  the  diversion 
of  the  water.  The  mode  of  diver- 
sion does  not  appear. 

In  Louisville  &  N.  R.  Co.  v.  Moore, 
31  Ky.  Law  Rep.  141,  101  S.  W.  934, 
it  was  decided  that  changing  the 
natural  flow  of  surface  water  was  an 
injury  to  the  possession  only  and 
consequently  not  cause  for  action 
by  the  landlord.  That  the  diver- 
sion was  by  means  of  a  pipe  or  cul- 
vert is  not  referred  to. 

61  In  Cress  v.  Varney,  17  Pa.  497, 
the  landlord's  right  to  recover  f  • 
diversion  of  water  was  based  on  the 
fact  that  by  the  terms  of  the  lease 
he  wns  entitled  to  part  of  the  water, 
and,  in  Woodbury  v.  Willis,  50  Ma. 


2110  ACTIONS  AGAINST  THIRD  PERSONS.  §  353 

the  deprivation  of  water  used  for  purposes  of  irrigation  seems 
to  have  been  regarded  as  so  permanently  affecting  the  character 
of  the  soil  and  the  availability  of  the  land  for  pasturage  purposes 
as  to  justify  an  action  by  the  landlord  on  account  thereof.^^ 

(2)  Theory  of  recovery.  In  regard  to  the  theory  upon  which 
a  landlord  is  allowed  to  recover  on  account  of  a  wrong  of  this 
character,  which  is  primarily,  it  would  seem,  a  wrong  to  the  actual 
enjoyment  of  the  property,  the  right  to  which  enjoyment  is  in 
another,  the  cases  are  not  entirely  explicit. 

In  several  decisions  in  this  country  it  is  stated  that  the  land- 
lord has  a  right  of  recovery  on  account  of  a  permanent  or  quasi 
permanent  condition  thus  interfering  with  the  enjoyment  of  the 
premises,  bj^  reason  of  the  fact  that  this  reduces  the  selling  value 
of  the  reversion. •'^  The  same  view  is  perhaps  suggested  by  the 
report  of  an  English  case  decided  in  the  eighteenth  century,^* 
where  recovery  was  allowed  in  favor  of  a  reversioner  on  account 
of  the  obstruction  of  lights,  it  being  said  that  he  could  recover 
"in  respect  of  his  inheritance,  for  the  injury  done  to  the  value 
of  it."  No  other  decisions  in  that  jurisdiction  specify  this  as 
the  ground  for  a  recovery  by  the  landlord,  but  from  the  fact 
that  the  courts  there  require  a  finding  by  the  jury  of  injury  to 
the  reversion,  in  order  to  support  recovery  by  the  landlord,^^ 
and  since  such  diminution  in  selling  value  is,  perhaps,  the  class 
of  injury  which  would  present  itself  most  prominently  to  the 
mind  of  the  average  juryman,  it  may  not  unreasonably  be  infer- 
red that  this  is  regarded  as  a  reason  for  allowing,  such  recovery. 
Regarding  this  as  a  reason  for  allowing  recovery  by  the  landlord, 
it  might  be  questioned  why  such  recovery  should  be  restricted, 
as  it  ordinarily  is,®^  to  cases  in  which  the  disturbance  of  enjoy- 
ment is  by  reason  of  a  condition  of  things  which  will  continue 
until  it  is  actually  removed.     The  selling  value  of  the  reversion 

403,  on  the  fact  that  the  diversion  v.  Belvidere  Delaware  R.  Co.,  25  N. 

affected   the   amount   of  logs   sawed  .T.    Law    (1    Dutch.)    255;    Ripka    v. 

in    the    leased    mill    and    that    the  Sergeant,  7  Watts  &  S.    (Pa.)    9,  42 

amount   of   rent  was    based    on   the  Am.  Dec.  214;  Seely  v.  Alden,  61  Pa. 

amount  sawed.  302,   100  Am.   Dec.   642. 

62  Heilbron  v.  Last  Chance  Water  "*  Jesser    v.     Gifford,     4     Burrow, 

Ditch  Co.,  75  Cal.  117,  17  Pac.  565.  2141. 

OS  K3n^^<1l■:ep  &  S.  R.  Co.  v.  Horan,  es  See  ante,  at  note  45,  46. 

131  111.  288,  23  N.  E.  621;   Tinsman  C6  See   ante,   at  notes  50a-53. 


I  353  INTERFERENCE  WITH  ENJOYMENT.  2111 

might  well  be  affected,  it  seems,  by  the  fact  that  a  constant  noise 
is  caused  by  the  use  of  adjoining  premises  as  a  workshop,^'^  or 
that  smoke  constantly  issues  from  a  neighboring  chimney.^^ 
But  that  such  a  diminution  in  the  selling  value  of  the  reversion 
cannot  be  asserted  as  a  ground  for  recovery  by  the  landlord  in 
a  ease  of  an  interference  with  enjoyment  of  a  "temporary"  char- 
acter is  not  only  indicated  by  the  decisions  denying  any  recovery 
in  such  case,  but  is  also  clearly  stated  in  at  least  two  English 
cases,  in  one  of  whieh^^  it  is  said  that  to  allow  damages  on  ac- 
count of  diminution  in  selling  value  in  such  cases  would  be  to 
allow  them  on  account  not  of  what  has  been  done,  but  of  the 
apprehension  that  something  will  be  done  at  a  future  time,  while 
in  the  other"*'  it  is  said  that  this  is  not  a  ground  of  recovery, 
since  a  purchaser  would  have  a  right  to  stop  the  nuisance.  The 
latter  reason  for  refusing  a  recovery  in  the  case  of  an  interfer- 
ence of  a  so-called  temporary  nature  would  however,  it  might 
seem,  apply  as  well  in  the  case  of  an  interference  caused  by  an 
o])struction  or  structure  of  a  permanent  or  ([uasi  permanent  char- 
acter. If,  for  instance,  the  landlord,  whether  the  original  lessor 
or  one  who  purchases  the  reversion,  has  a  right  to  stop  a  nuisance 
of  smoke  caused  by  kindling  fires,  he  would  also,  it  seems,  have  a 
right  to  stop  an  overflow  caused  by  the  erection  of  a  dam.  The 
former  of  the  reasons  stated  is,  it  is  conceived,  more  satisfactory, 
and  it  appears  to  suggest  a  basis  for  the  distinction  made  by  the 
courts  between  an  interference  or  obstruction  of  a  "temporary" 
and  one  of  a  "permanent"  nature,  they  in  effect  refusing  to  give 
damages  on  the  theory  that  certain  acts  will  be  done  in  the 
future  as  they  have  been  done  in  the  past,  and  on  account  of  the 
possible  future  repetition  of  such  acts,  although,  in  giving  dam- 
ages on  account  of  a  past  act,  they  consider  the  possible  future 
consequences  thereof,  as  affecting  the  value  of  an  interest  in 
land,  the  possession  under  which  is  postponed,  without  consider- 
ing the  fact  that  such  act  may,  before  the  time  for  possession 
under  such  interest,  be  rendered  incapable  of  producing  further 
interference  with  the  rights  of  enjoyment  incident  to  the  right  of 
possession. 

67  See  ante,  at  note  50a.  S.)    347. 

Gs  See  ante,  at  note  51.  to  Jonos  v.  Chapppll.  L.  R.  20  Eq. 

69  Simpson  v.  Savage,  1  C.  B.    (N.    539,   per  Jessel,  M.  R. 


2112  ACTIONS  AGAINST  THIRD  PERSONS.  §  353 

Occasionally  a  right  of  action  in  the  landlord  has  been  in  terras 
upheld  on  the  ground  that  such  a  right  is  necessary  in  order  to 
prevent  the  wrongful  act  or  acts  becoming  the  foundation  of  a 
claim  of  right.  This  view  is  asserted  in  at  least  two  English  cases 
in  connection  with  an  obstruction  of  "ancient  lights,"  that  is, 
of  a  prescriptive  right  to  have  light  pass  to  one's  window  or  win- 
dows ;7i  and  it  has  been  asserted  in  a  Pennsylvania  case  in  con- 
nection with  an  interference  with  a  natural  right  as  to  the  flow 
of  a  ^ream.'^2  n  seems  clear  that  in  the  case  of  an  interference 
with  a  prescriptive  right,  such  as  was  involved  in  the  English  de- 
cisions referred  to,  if  the  reversioner  were  not  allowed  to  institute 
proceedings  to  assert  such  right,  the  right  might  be  wholly  lost  in 
the  course  of  time,  by  reason  of  the  death  or  disappearance  of 
witnesses  competent  to  testify  as  to  the  prescriptive  user.  And  so 
in  the  case  of  an  interference  with  an  easement  not  based  on  pre- 
scription or  with  a  natural  right,  or  in  the  case  of  the  wrongful 
exercise  of  an  asserted  easement  on  the  premises,  while  no  right 
can  become  established  by  prescription  by  reason  of  such  wrong- 
ful interference  or  exercise,  as  against  a  reversioner  who  has  no 
right  of  action  therefor  or  other  mode  of  resistance  thereto,''^ 
he  might,  with  the  lapse  of  time,  if  not  allowed  to  assert  his  rights 
by  action,  be  unable,  owing  to  the  death  or  disappearance  of  wit- 
nesses, to  show  that  a  user  for  the  prescriptive  period  prior  to 
the  making  of  the  lease,  though  asserted  as  having  been  adverse, 
was  in  reality  permissive.'^'*     In  one  state,  moreover,  it  has  been 

71  Metropolitan  Ass'n  v.  Fetch,  5  293;  Pentland  v.  Keep,  41  Wis.  490. 
C.  B.  (N.  S.)  504;  Shadwell  v.  Hutch-  This  rule  obviously  applies  in  favor 
inson,  3  Car.  &  P.  615,  Moody  &  M,  of  the  landlord  only  so  long  as  there 
350,  2  Bam.  &  Adol.  97,  4  Car.  &  P.  is  a  lease  for  years,  which  he  cannot 
333.  See  Mott  v.  Shoolbred,  L.  R.  terminate,  and  does  not  apply  in 
20  Bq.  22;  Bov/er  v.  Hill,  1  Scott,  favor  of  one  who  makes  successive 
526,  1  Bing.  N.  C.  555.  leases  of  the  property,  as  he  might 
T2Ripka  V.  Sergeant,  7  Watts  &  interrupt  the  adverse  user  at  the 
S.  (Pa.)  9,  42  Am.  Dec.  214.  end  of  any  lease.  Bishop  v.  Sprin- 
gs Barker  V.  Richardson,  4  Barn,  gett,  1  L.  J.  K.  B.  13;  Ward  v.  War- 
&  Aid.  579;  Baxter  v.  Taylor,  4  Barn,  ren,  82  N.  Y.  265.  So  in  the  case 
&  Adol.  72;  Winship  v.  Hudspeth,  of  a  tenancy  from  year  to  year. 
10  Exch.  5;  Roberts  v.  James,  89  Reimer  v.  Stuber,  20  Pa.  458,  59  Am. 
Law  T.  (N.  S.)  282;  Reimer  v.  Stub-  Dec.  744. 

er,    20    Pa.    458,    59    Am.    Dec.    744;  74  So    in     Ripka    v.     Sergeant     7 

Cunningham    v.    Dorsey,    3    W.    Va.  Watts  &  S.  (Pa.)  9,  42  Am.  Dec.  214, 


§  353 


INTERFERENCE  WITH  ENJOYMENT.  2113 


held  that  the  rule,  recognized  in  that  and  some  other  states,'^-'"' 
that  a  disability  arising  after  the  commencement  of  the  adverse 
use  does  not  suspend  the  acquisition  of  the  right,  or  extend  the 
time  necessary  for  its  acquisition,  applies  in  ease  a  tenancy  is 
created  after  the  commencement  of  the  adverse  use,'^^  and,  adopt- 
ing such  a  view,  a  right  of  action  might,  in  some  cases,  be  neces- 
sary to  the  landlord  in  order  to  prevent  the  continued  running 
of  the  prescriptive  period. 

Another  theory  on  which,  it  has  been  suggested  by  an  able 
judge,  the  landlord  may  be  regarded  as  suffering  damage  by  rea- 
son of  an  interference  with  the  enjoyment  of  the  premises,  is  that 
whatever  impairs  their  productiveness  decreases  the  landlord's 
security  for  the  rent  J '^  It  might,  it  is  submitted,  be  questioned 
whether  such  a  possible  loss,  as  distinguished  from  an  actual  loss, 
of  sums  to  be  paid,  is  not  too  speculative  for  consideration  as  a 
ground  for  recoveryJ^ 

ante,  note  72,  Gibson,  C.  J.,  says  since  the  commencement  of  the  ten- 
that  "even  if  an  adverse  right  might  ancy,  which  was  for  twenty  years, 
not  be  gained  from  the  reversioner  and  it  appearing  to  have  lasted  for 
by  an  undisturbed  user  for  twenty  twenty  years,  a  grant  would  be  pj-e- 
years,  it  would  be  unreasonable,  sumed  as  against  the  reversioner, 
after  so  great  a  lapse  of  time,  to  put  The  Massachusetts  case  is  to  some 
him  to  proof  of  circumstances  in  extent  based  on  the  fact  that  in  that 
order  to  show  that  the  user  had  state  the  reversioner  would  have,  by 
originated  in  a  parol  license,  known,  statute,  the  right,  by  posting  a  no- 
it  may  be,  only  to  witnesses  since  tice,  to  stop  the  running  of  the  pre- 
(jead."  scriptive    period    against   him. 

T5  Currier  v.  Gale,  85  Mass.  (3  Al-  tt  Ripka  v.  Sergeant,  7  "Watts  &  S. 

len)  328;  Edson  v.  Munsell,  92  Mass.  (Pa.)    9,  42  Am.  Dec.  214,  per  Gib- 

(10  Allen)  557;  Wallace  v.  Fletcher,  son,  C.  J. 

30  N.  H.  134;  Mebane  v.  Patrick,  46  ts  in  an  early  case  (Earl  of  Suf- 
N.  C.  (1  Jones  Law)  23;  Reimer  v.  folk's  case.  Y.  B.  13  Hen.  4,  11)  it 
Stuber,  20  Pa.  458,  59  Am.  Dec.  744;  was  held  that  the  lord  had  a  right 
Tracy  v.  Atherton,  36  Vt.  503.  Con-  of  action  against  one  who,  by  im- 
tra,  Thorpe  v.  Corwin,  20  N.  J.  Law  properly  setting  up  a  court,  and  fre- 
(Spencer)  311;  Lamb  v.  Crosland,  4  quent  distresses  on  the  lord's  ten- 
Rich.  Law  (S.  C.)   536.  ants  for  not  attending  the  court,  so 

7c  Ballard    v.   Demmon,   156   Mass.  improverished  them  that  they  were 

449,  31  N.  E.  635.     The  case  of  Cross  unable  to  pay  their  rent. 

V.  Lewis,  2  Barn.  &  C.   686,  is  per-  In   Farmers'   High   Line   Canal    & 

haps    to    the    same    effect,    it    being  Reservoir    Co.    t.    New    Hampshire 

there    held    that    it    not    appearing  Real    Estate    Co.,    40    Colo.    467,    92 

that    the    adverse    user    had    begun  Pac.    290,   it   was    decided   that  one 

L.  and  Ten.  133. 


2114  ACTIONS  AGAINST  THIRD  PERSONS.  §  353 

In  one  casc'''^  the  landlord's  right  to  sue  on  account  of  the 
obstruction  of  a  private  way  was  placed  on  the  ground  that  the 
tenancy  was  one  at  will,  and  that  the  landlord  might,  by  reason 
of  such  obstruction  of  the  way  leading  to  the  premises,  be  pre- 
vented from  entering  to  terminate  the  lease  or  to  make  repairs, 
and  "might  thus  be  induced  to  continue  a  disadvantageous  lease, 
or  to  suffer  the  tenements  to  be  injured  for  want  of  reasonable 
repairs. ' ' 

There  is  one  case  in  which  the  landlord's  right  of  recovery  was 
based  on  the  fact  that,  in  consequence  of  the  wrongful  interfer- 
ence with  the  enjoyment,  the  tenant  had  threatened  "to  quit" 
unless  the  rent  was  reduced,  and  that  the  landlord  accordingly 
did  reduce  the  rent.^*'  It  is  difficult,  however,  to  see  how  the  fact 
that  a  landlord  reduces  the  rent  on  the  threat  of  the  tenant  to 
quit  can  of  itself  give  the  former  a  right  of  action  against  the 
wrongdoer.  A  tenant  has  no  right  to  quit  or  refuse  to  pay  rent 
by  reason  of  the  wrongful  act  of  a  third  person.^i 

There  are  in  at  least  four  states  statutory  provisions  authoriz- 
ing one  having  an  estate  in  reversion  to  maintain  an  action  for 
an  injury  done  to  the  inheritance,  notwithstanding  an  interven- 
ing estate  for  life  or  years,^-  and  occasionally  a  right  of  recovery 
by  the  landlord  for  injury  by  a  person  other  than  the  tenant  has 
been  based  on  such  provision.^^  Such  provisions  seem  more  prop- 
having  a  contract  for  the  irrigation  83  See  Heilbron  v.  Water  Ditch 
of  his  land,  which  he  leased,  might  Co.,  75  Cal.  117;  Freer  v.  Stotenbur, 
recover  as  damages  for  breach  of  2  Abb.  Dec.  (N.  Y.)  189;  Taylor  v. 
the  contract  the  amoimt  of  rent  lost  Wright,  51  App.  Div.  97,  64  N.  Y. 
by  him  owing  to  the  tenant's  in-  Supp.  344;  Arneson  v.  Spawn,  2  S.  D. 
ability,  due  to  the  lack  of  water,  to  269,  49  N.  W.  1066,  39  Am.  St.  Rep. 
pay  the  rent.  783.     The  New  York  statute  (1  Rev. 

79  Gushing  v.  Adams,  35  Mass.  (18  St.  p.  750,  §  8)  formerly  provided 
Pick.)   110.  that  the  reversioner  might  maintain 

80  Baker  v.  Sanderson,  20  Mass.  (3  an  action  of  waste  "or  trespass,"  and 
Pick.)  348.  See  Sumner  v.  Tiles-  this  had  the  effect  of  changing  the 
ton,  24  Mass.  (7  Pick.)  198  common-law  rule  precluding  an  ac- 

81  See  ante,  §  186  b.  tion    of    trespass    by   a    reversioner 

82  See  Cc/ifornta  Civ.  Code,  §  826;  (See  post,  at  note  85).  But  the 
Nc^o  York  Code  Civ.  Proc.  §  1665;  present  statute  merely  provides  that 
North  Dakota  Rev.  Codes  1905,  §  ^^  may  maintain  an  action  for  in- 
4807;    South    Dakota    Civ.    Code,    §    Jury   done  to  the   inheritance. 

287. 


§353 


INTERFERENCE  WITH  ENJOYMENT. 


2115 


erly  adapted  for  the  purpose  of  removing  diffienlties  in  the  way 
of  a  recovery  by  the  landlord  against  the  tenant  for  waste.^^ 

(3)  Form  of  action.  Since  the  possession  of  the  land  is  in  the 
tenant  and  not  in  the  landlord,  the  latter  cannot,  at  common  law, 
maintain  an  action  of  trespass  quare  clausum  fregit  against  a  per- 
son injuring  the  premises,  this  action  being  available  only  to  one 
in  possession,  but  his  remedy  is  necessarily  by  an  action  on  the 
case,  and  this  is  the  rule  in  all  jurisdictions  in  which  the  distinc- 
tion between  these  forms  of  action  still  exist.^^  One  exception 
to  this  rule  is,  however,  recognized,  a  landlord  at  will  being 
regarded  as  entitled  to  maintain  trespass  against  a  wrongdoer, 
on  the  theory  that,  being  entitled  to  resume  possession  at  any 
time,  he  is  in  legal  effect  in  possession.ss  This  view  has  occa- 
sionally been  adopted  in  this  country,^'^  but  even  in  a  jurisdiction 
in  which  this  was  formerly  recognized  as  the  rule,  it  is  declared 
to  be  no  longer  so  since  the  adoption  of  a  statute  requiring  a 


84  See  ante,  §  109  b  (3). 

85  1  Chitty,  Pleading  (6th  Ed.) 
175;  Gibbons  v.  Dillingham,  10  Ark. 
9,  50  Am.  Dec.  233;  Uttendorffer  v. 
Saegers,  50  Cal.  496;  Tilghman  v. 
C»uson,  4  Har.  (Del.)  341;  Halligan 
V.  Chicago  &  R.  I.  R.  Co.,  15  111.  558; 
Gould  V.  Sternburg,  4  111.  App.  (4 
Bradw.)  439;  Walden  v.  Conn,  84 
Ky.  312,  1  S.  W.  537,  4  Am.  St.  Rep. 
204;  Bartlett  v.  Perkins,  13  Me.  (1 
Shep.)  87;  Perry  v.  Bailey,  94  Me. 
50,  46  Atl.  789;  Taylor  v.  Townsend, 
8  Mass.  411,  5  Am.  Dec.  107;  Lienow 
V.  Ritchie,  25  Mass.  (8  Pick.)  235; 
Lindenbower  v.  Bentley,  86  Mo.  515, 
109  Am.  St.  Rep.  716;  Tyson  v. 
Shueey,  5  Md.  540;  New  Jersey  Mid- 
land R.  Co.  V.  Van  Syckle,  37  N.  J. 
Law,  496;  Wentworth  v.  Portsmouth 
&  Dover  R.  Co.,  55  N.  H.  540;  Camp- 
bell V.  Arnold,  1  Johns.  (N.  Y.)  511; 
Tobey  v.  Webster,  3  Johns.  (N.  Y.) 
468;  Holmes  v.  Seely,  19  Wend.  (N. 
Y.)  507;  Smith  v.  Fortiscue,  48  N. 
C.    (3    Jones   Law)    65;    Rogers    v. 


Brooks,  99  Ala.  31,  11  So.  753;  Tor- 
rence  v.  Irwin,  2  Yeates   (Pa.)   210, 

1  Am.  Dec.  340;  Greber  v.  Kleckner, 

2  Pa.  289;  Davis  v.  Clancy,  3  McCord 
(S.  C.)  422;  Cannon  v.  Hatcher,  1 
Hill  Law  (S.  C.)  260,  26  Am.  Dec. 
177;  Reynolds  v.  Williams,  1  Tex. 
311;  Kretzer  v.  Wysong,  5  Grat. 
(Va.)   9. 

»6Y.  B.  19  Hen.  6,  45,  pi.  94;  Bro. 
Abr.,  Trespass,  pi.  131;  Com.  Dig. 
Trespass,  B  2;  Co.  Litt.  57  a,  Har- 
grave's  note;  2  Rolle's  Abr.,  Tres- 
pass (N)  3;  Geary  v.  Bearcroft,  Sid. 
347  (dictum).  See  Pollock,  Torts 
(6th  Ed.)    357. 

87  Starr  v.  Jackson,  11  Mass.  519, 
followed  in  I-Iingham  v.  Sprague,  32 
Mass.  (15  Pick.)  102;  Davis  v.  Nash, 
32  Me.  411,  and  see  Curtis  v.  Hoyt, 
19  Conn.  168.  There  was,  of  course, 
no  right  of  action  in  trespass,  any 
more  than  in  case,  if  the  landlord 
was  not  injured.  Smith  v.  Fortis- 
cue, 48  N.  C.  (3  Jon-s  Law)  65;  Ly- 
ford     V.     Toothaker,     39     Me.     28; 


2116  ACTIONS  AGAINST  THIRD  PERSONS.  §  353 

notice  of  a  certain  period  to  terminate  a  tenancy  at  will.^^  And 
in  other  jurisdictions,  likewise,  the  principle  has  been  regarded 
as  inapplicable  in  view  of  the  rule  requiring  such  a  notice  to  ter- 
minate the  tenancy.^^ 

Trespass  de  bonis  asportatis  or  trover  may  be  maintained  by 
the  landlord  against  one  who  removes  trees  or  fixtures,  things 
thus  wrongfully  severed  being  the  property  of  the  landlord.^'^ 
If  trees  or  fixtures  are  excepted  from  the  operation  of  the  lease, 
the  landlord  may  bring  trespass  quare  clausum  fregit  against  one 
wrongfully  removing  them.^^ 

The  rights  of  the  landlord,  in  case  of  an  injury  to  the  rever- 
sion, are  not  necessarily  restricted  to  the  recovery  of  damages, 
but  he  may  have  an  injunction  against  continued  or  threatened 
injury,  subject  to  the  rules  ordinarily  applied  by  courts  of  equity 
in  granting  injunctions.^^  Ug  i^^g  accordingly  been  granted  an 
injunction  against  the  continuance  of  an  elevated  railway  in  front 

French     v.     Fuller,     40     Mass.     (23  lin  v.  Hayden,  1  Vt.  375. 

Pick.)  104.  80  Berry  v.  Heard,  Cro.   Car.   242; 

In  Perry  v.  Bailey,  94  Me.  50,  46  Sir  Wm.   Jones,  255;    Udal  v.  Udal, 

Atl.  789,  it  is  decided  that  the  land-  Aleyn,  82;  Evans  v.  Evans,  2  Camp, 

lord  of  a  tenant  at  will  cannot  bring  491;     Ward    v.    Andrews,    2    Chitty, 

such  action  against  one  who  origin-  636;  Higgon  v.  Mortimer,  6  Car.  &  P. 

ally    entered   by   permission   of   the  616;  Meyers  v.  Marsh,  2  U.  C.  Q.  B. 

tenant  and  then  injured  structures  148;    Gasco  v.   Marshall,  7  U.  C.  Q. 

on  the  land,  since  "an  abuse  of  au-  B.  193;  Bulkley  v.  Dolbeare,  7  Conn, 

thority  to  enter  upon  land,  given  by  232;    Westgate  v.  Wixon,  128  Mass. 

a  party,   does   not  render  a  man   a  304;    Wadleigh  v.  Janvrin,  41  N.  H. 

trespasser."     In  this  case,  the  words  503,  77  Am.  Dec.  780;  Schermerhorn 

"while  a  tenant  is  in  possession,"  in  v.  Buell,  4  Denio  (N.  Y.)  422. 
line  7  on  page  58,  should  evidently        01  Bro.    Abr.,    Trespass,    pi.    55;    1 

read,  "while  a  tenant  at  will  is  in  Wms.     Saund.     322,    note     (5)     to 

possession."  Pomfret  v.    Ricroft;    Phillips  v.    De 

88  French  v.  Fuller,  40  Mass.    (23  Groat,   2  Lans.    (N.  Y.)    192;    Scher- 

Pick.)    104;    Hastings  v.   Livermore,  merhorn  v.  Buell,   4  Denio    (N.  Y.) 

73  Mass.  (7  Gray)  194;  Woodman  v.  422. 
Francis,  96  Mass.    (14  Allen)    198.  92  Wilson  v.  Townend,  1   Drew.  & 

8»  Clark    V.    Smith,    25    Pa.    137;  S.  324.     But  in  Ingraham  v.  Dunnell, 

Ggnsolus  v.  Lormer,  54  Wis.  630,  12  46  Mass.  (5  Mete.)  118,  it  is  decided 

N.  W.  62.  that  the  reversioner  cannot,  without 

The     landlord     cannot     maintain  joinder  of  the  tenant,  obtain  an  in- 

trespass  if  the  tenancy  at  will  has  junction  against  a  nuisance, 
become  one  from  year  to  year.     Cat- 


§  353  INTERFERENCE   WITH   ENJOYMENT. 


2117 


of  his  premises,'>3  and  against  the  operation  of  an  electric  power 
house  m  such  a  way  that  the  vibrations  injure  the  buildings  on 
the  leased  promises.^^ 

(4)  Averments  of  injury.  One  suing  for  an  injury  to  his 
reversion  should  allege  the  act  to  have  been  done  to  the  injury 
of  his  reversion  or  state  an  injury  of  such  a  permanent  nature 
as  necessarily  to  injure  the  reversion,  and  a  failure  in  this  respect 
has  been  held  fatal  to  the  right  of  reeovery.os  He  should  also 
allege  that  he  had  a  reversionary  interest  at  the  time  of  the  act 
complained  of,9«  and  should,  it  has  been  said,  describe  the  extent 
of  his  reversionary  interest,  that  the  damage  may  be  known  and 
assessed,97  though  it  has  also  been  said  to  be  sufficient  if  he  alleges 
generally  that  the  land  is  in  possession  of  a  third  person  "as  ten- 
ant thereof  to  the  plaintiff,"  without  stating  a  seisin  in  fee.^s  Any 
defects  in  these  respects  would,  at  the  present  day,  be  the  subject 
of  amendment.^9 

(5)  Measure  of  damages.  The  damages  recoverable  by  the 
landlord  are  ordinarily  to  be  determined  by  the  amount  of  injury 
done  to  his  estate  in  reversion,ioo   and  this  may  evidently  be 

93  Kernochan  v.  Manhattan  R.  Co.,  reversion  when  the  facts  pleaded 
161  N.  Y.  339,  55  N.  E.  906;  Macy  necessarily  show  such  injury,  see 
V.  Metropolitan  El.  R.  Co.,  59  Hun,  Arneson  v.  Spawn,  2  S.  D.  269,  49  N. 
365.  12  N.  Y.  Supp.  804,  afd.  128  N.  W.  1066,  39  Am.  St.  Rep.  783;'  Tins- 
Y.  624,  28  N.  E.  485;  Thompson  v.  man  v.  Belvidere  Delaware  R.  Co., 
Manhattan  R.  Co.,  130  N.  Y.  360,  29  25  N.  J.  Law  (1  Dutch.)  225,  64  Am 
N.   E.  264.  Dec.  415. 

9*  Meux's  Brew.  Co.  V.  City  of  Lon-  oe  Davis  v.  Jewett,  13  N.  H.  88; 
don  Elec.  Lighting  Co.  [1885]  1  Ch.  Vowles  v.  Miller,  3  Taunt.  137.  An 
^^'^-  averment   of   injury    to    the   posses- 

95  Jackson   v.   Pesked,   1   Maule   &   sion    is    insufficient    when    plaintiff 
S.   234;    Dobson  v.   Blackmore,  9  Q.    has  merely  a  reversion.     Higgins  v. 
B.  991;   Noyes  v.  Stillman,  24  Conn.    Farnsworth,  48  Vt.  512. 
15;    Bannon  v.  Mitchell,  6  111.   App.        97  Davis  v.    Jewett,    13   N.   H.    88; 
C6   Bradw.)    17;    Dearborn   v.    Well-    George  v.  Fisk,  32  N.  H.  82;   Baker 

man,    130    Mass.    238;      Bascom    v.    v.    Sanderson,    20    Mass.    (3    Pick.) 

Dempsey,  143  Mass.  409,  9  N.  E.  744;    348. 

Davis  V.  Jewett,  13  N.  H.  88;   Potts        ssl    Chitty,    Pleading    (16th    Am. 

V.   Clarke,  20  N.   J.  Law    (Spencer)    Ed.)   396. 

536;  Tinsman  v.  Belvidere  Delaware        99  See  Schnable  v.  Koehler,  28  Pa. 

R.  Co.,  25  N.  J.  Law    (1  Dutch.)  255,    18L 

64  Am.  Dec.  415.     That  there  is  no       loo  Dutro  v.  Wilson,  4  Ohio  St.  101. 

necessity   to  state  an  injury  to  the 


2118  ACTIONS  AGAINST  THIRD  PERSONS.  §  353 

affected  by  the  nature  of  that  estate,^  ^^  and  likewise  by  the  length 
of  the  period  which  the  leasehold  interest  has  still  to  run.102 

"When  the  landlord  re-enters  for  breach  of  condition,  it  has 
been  decided,  his  damages  on  account  of  a  prior  injury  to  the 
property,  consisting  of  the  removal  of  buildings,  are  to  be  com- 
puted as  of  the  time  of  such  re-entry,  and  not  as  of  the  time  named 
for  the  expiration  of  the  term.i*^^ 

In  assessing  the  damages  in  favor  of  either  a  landlord  or  ten- 
ant, "it  is  to  be  borne  in  mind  that  where  there  are  divided  inter- 
ests in  land,  the  amount  of  damages  must  not  be  increased  in  con- 
sequence of  that  subdivision  of  interests,  "i°-*  that  is,  that  neither 
■should  be  allowed  to  recover  more  than  an  amount  which,  to- 
gether with  the  amount  to  which  the  other  would  be  entitled, 
would  equal  the  total  amount  which  the  landlord  could  have 
recovered  if  his  estate  had  been  one  in  possession,  and  not  in 
reversion. lo-**^ 

For  a  direct  injury  to  the  land  or  to  the  structures  thereon  the 
landlord  is  entitled,  it  has  been  decided  in  England,  to  recover 

101 A    reversioner    for    life    could  damaged,  i.  e.,  in  the  present  case, 

not,  for  instance,  ordinarily  recover  how  much  of  that  sum  ought  to  be 

the  same  damages  for  a  permanent  awarded  in  respect  of  his  (the  rever- 

injury  as  if  he  held  the  reversion  in  sioner's)   interest,  and  how  much  to 

fee.     See  Davis  v.  Jewett,  13  N.  H.  the  tenants  who  are  not  before  the 

88;  Vowles  v.  Miller,  3  Taunt.  137.  court.     Unless  that  principle  is  kept 

1"=  Uttendorffer  v.  Saegers,  50  Gal.  steadily  in  view  there  is  great  dan- 

496;  Kankakee  &  S.  R.  Co.  v.  Horan,  ger  of  error." 
131  111.  288,  23  N.  E.  621.  io4a  City  of  Dixon  v.  Baker,  6-5  111. 

103  Winston  v.  President  &  Trus-  518,  16  Am.  Rep.  591;  Hastings  v. 
tees  of  Franklin  Academy,  28  Miss.  Livermore,  73  Mass.  (7  Gray)  194; 
118,  61  Am.  Dec.  540.  B3avers  v.   Trimmer,  25  N.   J.  Law 

104  Cotton,  L.  J.,  in  Rust  v.  Vic-  (1  Dutch.)  97;  Seely  v.  Alden,  61  Pa. 
toiia  Graving  Dock  Co.,  36  Ch.  Div.  302,  100  Am.  Dec.  642,  and  cases 
113.  In  the  same  case  Lindley,  L.  cited  post,  note  106.  This  principle 
J.,  expresses  himself  as  follows:  is  frequently  asserted  in  connection 
"The  problem  to  be  solved  is  simply  with  condemnation  proceedings', 
to  find  out  themeosure  in  money  of  though  there  it  is  not  so  likely  to  be 
the  damage  done  to  the  houses  and  lost  sight  of,  as  the  damages  to  land- 
land  by  the  flood.  That  is  the  thing  lord  and  tenant  are  ordinarily 
to  be  got  at.  Having  got  at  that,  awarded  simultaneouslj^  See  2 
you  have  to  consider  how  that  sum  Lewis,  Eminent  Domain,  §  483,  and 
ought  to  be  apportioned  among  the  cases  cited. 

persons    interested  in  the     property 


§  353  INTERFERENCE   WITH   ENJOYMENT.  21 19 

the  consequent  diminution  in  the  selling  value  of  the  reversion/^^ 
and  this  would  seem  to  be  the  ordinary  measure  of  damages  for 
such  an  injury,  it  being  equivalent  to  the  amount  of  the  diminu- 
tion in  the  present  value  of  the  premises,  considered  without  ref- 
erence to  the  existence  of  the  two  estates  therein,  less  the  amount 
of  the  loss  to  the  tenant  by  reason  of  such  impaired  condition  of 
the  premises-i*^^ 

As  to  the  measure  of  damages  in  an  action  by  the  landlord  on 
account  of  an  interference  with  the  rights  of  enjoyment  in  the 
premises,  as  distinguished  from  a  direct  injury  to  the  premises 
themselves,  the  cases  are  in  a  very  unsatisfactory  condition.  It 
was  decided  in  an  English  case^*^'^  that  since,  in  the  case  of  a 
nuisance  of  a  continuing  character,  successive  actions  may  be 
brought  from  time  to  time,  and  damages  can  consequently  be 
given  for  prospective  injury,  the  landlord  is  not  entitled,  in  the 
first  action,  to  recover  the  diminution  in  the  saleable  value.  In 
that  case  a  verdict  for  nominal  damages  only  in  favor  of  the 
landlord  was  approved,  and  it  was  there  said  that  this  is  a  usual 
practice,  substantial  damages  being  given  only  on  the  bringing 
of  a  second  action  in  case  the  defendant  persists  in  maintaining 
the  nuisance.  Presumably,  a  like  view  would  there  obtain  as  to  the 
landlord's  right  of  recovery  for  any  other  interference  with  the 
enjoyment  of  the  premises,  v/ithout  any  direct  injury  to  them. 
In  this  country  the  cases  are  in  conflict  as  to  the  right  of  one  to 
recover  in  one  action  for  future  as  well  as  past  damage  caused 
by  a  continuing  nuisance.i'^«  The  view  that  there  is  such  recovery 
appears  to  be  involved  in  occasional  decisions  or  dicta  that  the 
landlord  can  recover  the  amount  of  the  diminution  in  the  selling 
value  of  his  reverision,!^^  and  a  judgment  for  that  amount  would, 

losHosking    v.    Phillips,    3    Bxch.  Ed.)   §  1038  et  seq. 

182.  ^^'^  Kankakee  &  S.  R.  Co.  v.  Horan, 

106  See  Nashville,  C.  &  St.  L.  R.  Co.  i:^  111.  288,  23  N.  B.  621;  Tinsman 
V.  Heikens,  112  Tenn.  378,  79  S.  W.  v.  Belvidere  Delaware  R.  Co.,  25  N.  J. 
1038,  6f>  L.  R.  A.  298;  Jordan  v.  Ben-  Law  (1  Dutch.)  256.  64  Am.  Dec. 
wood,  42  W.  Va.  312,  26  S.  B.  266,  57  415;  Nashville,  C.  &  St.  L.  R.  Co.  v. 
Am.  St.  Rep.  859,  36  L.  R.  A.  519,  Heikans,  112  Tenn.  378,  79  S.  W. 
and  cases   cited;    ante,  note  104.  1038,  65  L.  R.  A.  298;  Jordan  v.  Ben- 

107  Battishill  V.  Reed,  18  C.  B.  696.    wood,  42  W.  Va.   312,  26  S.   E.  266, 
103  See   1    Sedswick,    Damages,    §§    57  Am.  St.  Rep.  859,  36  L.  R.  A.  519. 

94,  947;    Sutherland,  Damages    (3rd 


2120  ACTIvONS  AGAINST  THIRD  PERSONS.  §  353 

presumably,  preclude  another  action  by  the  landlord  for  subse- 
quent injuries  from  the  same  wrongful  condition.^ i'' 

(6)  Loss  or  reduction  of  rent.  A  difficult  question  arises  when 
the  landlord  sues  for  damages  on  account  of  a  nuisance,  or  other 
wrongful  interference  with  the  enjoyment  of  the  land,  which  had 
its  commencement  before  the  creation  of  the  tenancy.  The  view 
is  asserted,  in  a  subsequent  part  of  this  chapter,ii'^''  that  the  ten- 
ant's right  and  quantum  of  recovery  for  the  injury  to  his  rights 
of  enjoyment  are  ordinarily  independent  of  the  fact  that  he 
obtained  the  premises  at  a  reduced  rent  by  reason  of  the  existence 
of  the  nuisance,  and  conceding  this  to  be  so,  it  seems  necessarily 
to  follow  that  the  landlord  cannot  recover  by  reason  of  the  fact 
that  the  lease  was  made  by  him  at  such  a  reduced  rent,  since  if 
the  damages  recoverable  by  the  tenant  cannot  be  reduced  on 
account  of  the  reduction  in  rent,  and  yet  those  recoverable  by 
the  landlord  could  be  increased  on  that  account,  the  wrongdoer's 
total  liability  would  be  determined  with  reference,  not  to  the 
amount  of  damage,  but  to  the  rent  agreed  upon,  with  the  frequent 
result  that  he  would  pay  the  actual  damage  plus  the  amount 
of  the  enforced  reduction  of  rent.  The  case  is  similar  on  prin- 
ciple, it  seems,  to  the  case  of  a  sale  of  land  at  a  reduced  price  by 
reason  of  the  existence  of  a  nuisance  on  neighboring  land,  in 
which  case,  while  the  vendor  could  recover  for  the  damage  up 
to  the  time  of  the  sale,  the  damage  accruing  subsequently  thereto 
could  be  recovered  only  by  the  vendee.  So  the  landlord  is  entitled 
to  the  damage,  ordinarily  the  diminution  in  rental  value,  for  the 
time  prior  to  the  lease,  while  the  lessee  or  his  assignee  is  entitled 
to  the  diminution  in  rental  value,!^^  or  other  damage,  accruing 
during  the  term  of  the  lease.  The  wrongdoer  is  not  concerned 
with  the  terms  on  which  the  lease  or  sale  is  made,  and  his  liability 
should  be  adjusted  without  reference  to  such  terms.  Under  this 
view  it  may  no  doubt  result  that  the  lessee  recovers  for  an  injury 
for  which  he  has  already  been  compensated  in  advance  by  the 


110  See    2    Black,    Judgments    (2d  the  person  entitled  to  the  use.     One 
Ed.)    §  743.  who  has  parted  with'  the  right  to  use 

110a  See  post,  at  note  144.  the    land    cannot    well    recover    for 

111  "Rental    value"    means   merely  diminution    in    the    value    of    such 
"value  of  use"   (See  post,  note  157),  right. 

and  this  is  properly  recoverable  by 


§  353 


INTERFERENCE  WITH   ENJOYMENT.  2121 


reduction  of  rent,  while  the  lessor  is  precluded  from  recovering 
for  the  loss  resulting  from  his  enforced  reduction  of  the  rent,  but 
the  lessor  might  protect  himself  in  this  regard,  to  some  extent, 
at  least,  by  inserting  a  stipulation  in  the  instrument  of  lease,  pro- 
viding that  the  lessee  shall  pay  to  the  lessor  any  damages  which 
he  may  recover  on  account  of  the  nuisance,  or  he  could  defer 
making  a  lease  until,  by  proper  proceedings,  he  has  procured  an 
abatement  of  the  nuisance.  But,  even  though,  ordinarily,  the  ten- 
ant is  entitled  to  recover  for  the  diminution  in  the  rental  value 
dui'ing  his  term,  and  the  landlord  cannot  recover  on  account  of 
the  reduction  in  rent  based  on  such  diminution,  this  would,  pre- 
sumably, not  be  so  if,  in  the  particular  jurisdiction,  or  under  the 
particular  circumstances,  it  was  considered  that  there  was  no 
right  to  bring  successive  actions  on  account  of  the  nuisance,  and 
that  all  the  damages,  including  those  still  to  accrue,  should  be 
recovered  in  one  action.  In  such  case,  the  lessor  having  recov- 
ered, as  of  the  time  prior  to  the  lease,  all  the  damages  to  the 
property,  a  subsequent  lessee,  or  other  grantee  of  an  interest  in 
the  land,  would  have  no  right  of  recovery. 

The  view  above  indicated  that,  when  the  damages  for  the  main- 
tenance of  a  nuisance  are  recoverable  only  by  successive  ^actions, 
the  lessor  is  not  entitled  to  damages  by  reason  of  the  reduction 
of  rent  to  which  he  was  compelled  to  submit  on  account  of  a  nui- 
sance or  other  interference  with  enjoyment  existing  at  the  time 
of  the  lease,  is  supported  by  a  recent  New  York  case.n^    And  it 

112  Miller  v.  Edison  Elec.  Ilium-  however,  that  the  report  of  the 
inating  Co.,  1S4  N.  Y.  17,  76  N.  E.  earlier  case  contains  no  statement 
734,  3L.  R.A.  (N.  S.)  1060.  In  this  that  the  tenant  was  entitled  to  re- 
case  the  decision,  by  a  majority  of  cover  the  amount  of  the  diminution 
four  judges  to  three,  adverse  to  the  in  the  rental  value.  The  majority 
landlord's  right  of  recovery,  vv^as  opinion  in  the  later  case  also  re- 
based  chiefly  on  the  view  that  in  the  fers  to  the  fact  that  "the  defendant's 
prior  case  of  Bly  v.  Edison  Elec.  II-  plant  did  not  constitute  the  nuis- 
luminating  Co.,  172  N.  Y.  1,  64  N.  E.  ance,  but  its  operation."  In  this 
745  58  L.  R.  A.  500,  the  tenant  had  case  as  in  others,  there  appears  to 
been  allowed  to  recover  the  diminu-  be  a  failure  to  discriminate  between 
tion  in  rental  value  caused  by  the  "rental  value"  and  rent  actually  re- 
same  nuisance,  and  to  allow  recovery  served.  The  case  of  Francis  v. 
by  the  landlord  of  the  diminution  in  Schoellkopf,  53  N.  Y.  152,  does  not 
the  rental  value  would  involve  the  al-  seem  to  accord  with  the  latest  de- 
lowance  of  double  damages  for  the  cisiou  above  referred  to. 
same  injury.    It  is  to  be  remarked, 


2122  ACTIONS  AGAINST  THIRD  PERSONS.  §  353 

appears  to  be  necessarily  involved  in  a  decision  that^^^  the  ten- 
ant's right  and  quantum  of  recovery  are  not  affected  by  the  fact 
that  he  obtained  the  premises  at  a  reduced  rent  on  account  of  the 
nuisance.  There  are,  however,  occasional  decisions  which  indi- 
cate a  contrary  view.^i'* 

Occasionally,  although  the  nuisance  or  other  interference  with 
the  enjoyment  did  not  commence  until  after  the  making  of  the 
lease,  the  landlord  has  been  regarded  as  entitled  to  recover  by 
reason  of,  and  to  the  extent  of,  a  reduction  made  by  him  in  the 
rent,  on  the  threat  of  the  tenant  to  "quit"  on  account  of  the 
nuisance  unless  such  reduction  were  made.^^^  It  seems,  however, 
most  questionable  whether,  at  least  in  the  case  of  a  tenancy  for 
years,  such  concession  can  give  the  landlord  a  right  of  recovery, 
it  being  purely  voluntary  on  his  part.  The  fact  that  the  act  of  a 
third  person  renders  it  difficult  for  one  to  perform  his  contract 
to  pay  money  would  not  ordinarily  entitle  the  payee  to  release 
the  payor  from  liability  and  to  sue  the  third  person  for  the  agreed 
sum.  That  a  wrongdoer  has  interfered  with  a  tenant's  enjoy- 
ment of  the  premises  gives  him  no  right  to  "quit"  in  the  sense 
of  relinquishing  possession  and  refusing  to  pay  rent.  In  the  case 
of  a  tenant  at  will,  though  there  is  a  right  in  the  tenant  to  relin- 
quish possession  and  so  terminate  his  liability  for  rent,  a  reduc- 
tion of  rent  made  in  consequynce  of  the  tenant's  threat  so  to  do 
would  seem  to  be  no  ground  for  recovery  by  the  landlord,^^^ 

113  Halsey  v.  Lehigh  Valley  R.  Co.,  regards  an  interference  with  an 
45  N.  J.  Law,  26;    post,  note  145.  easement  of  support. 

114  See  Baker  v.  Sandei-son,  20  us  Baker  v.  Sanderson,  20  Mass. 
Mass.  (3  Pick.)  348;  post,  note  115.  (3  Pick.)  348.  In  Moody  v.  King,  74 
In  Funston  v.  Hoffman,  232  III.  360,  Me.  497,  there  is  a  dictum  that  the 
83  N.  E.  917,  it  was  held  that  the  landlord  is  entitled  to  recover  for 
landlord  alone  had  a  right  to  sue  loss  of  rent.  In  Parker  v.  City  of 
when  the  lease  was  made  after  the  Lowell,  77  Mass.  (11  Gray)  358,  it 
doing  of  the  wrongful  act,  it  being  does  not  appear  whether  the  loss  of 
paid  that  the  lessee,  knowing  of  the  rent  for  which  recovery  was  allowed 
interference  with  the  right  of  drain-  v/as  from  the  departure  of  actual 
age,  "should  have  insisted  on  a  low-  tenants  or  from  the  loss  of  possible 
er  rent  or  in  being  protected  in  some  tenants. 

other    way    by    the   landlord."     The  us  In    Baker      v.    Sanderson,    20 

decision    is    based    on   McConnell    v.  Mass.    (3   Pick.)    348,  where  such   a 

Kibbe,  33  111.  175,  85  Am.  Dec.  265,  reduction  was  regarded  as  a  ground 

where  the  same  view  is  indicated  as  for  recovery  by  the  landlord,  the  ten- 


§  353  INTERFERENCE  WITH  ENJOYMENT.  2123 

this  being  analogous  to  the  ease  of  a  reduction  made  by  a  lessor 
in  consequence  of  a  pre-existing  nuisance,  previously  discussed."  ^ 

When,  by  the  express  terms  of  the  lease,  the  rent  was  to  be 
reduced  in  case  of  any  such  interference  by  a  third  person  with 
the  enjoyment  of  the  premises,  the  landlord  was  allowed  to 
recover  the  amount  of  a  reduction  in  rent  consequent  upon  the 
interference.!  18  And  so  he  has  been  allowed  to  recover  a  loss 
in  rent,  owing  to  the  fact  that  it  was  to  consist  of  a  share  of  the 
crops,  and  that  a  third  person  injured  the  crops.^^'-* 

It  has  in  one  state  been  decided  that  the  landlord  may  recover, 
as  against  an  elevated  railroad  company,  by  reason  of  the  fact 
that  on  a  readjustment  of  the  rent,  under  an  arbitration  clause 
in  the  lease,  the  amount  to  be  paid  was  reduced  in  consideration 
of  the  construction  of  the  railroad  in  the  street  on  which  the 
property  abutted.i^o  This  accords  with  the  view  adopted  in  that 
statei2i  that  the  landlord  alone  has  a  right  to  recover  on  account 
of  interference  with  the  enjoyment  of  the  leased  property  by 
the  construction  of  such  a  work  under  legislative  authority.  That 
is,  the  landlord,  and  not  the  tenant,  is  entitled  to  recover  the 
diminution  in  rental  value.  It  seems,  however,  that  when  the 
wrongdoer  is  an  individual,  not  acting  under  legislative  authority, 
the  same  rule  would  apply  as  regards  the  landlord's  loss  by  rea- 
son of  such  a  reduction  of  rent  during  the  term  under  an  arbitra- 
tion clause  in  the  lease,  as  when  the  rent  is  reduced  in  order  to 
make  a  lease  in  the  first  place.122-124  tj^^  tenant  is  the  one  entitled 
to  recover  the  loss  of  rental  value,  and  the  wrongdoer  has  no  right 
to  assert  in  defense  to  an  action  by  the  tenant  that  the  latter  has 
obtained  a  reduction  of  rent.  Consequently,  the  landlord  cannot 
recover  on  account  of  such  reduction.  The  landlord  can,  by  legal 
proceedings,  ordinarily  put  an  end  to  the  interference  before  the 
time  for  readjustment  of  the  rent. 

ancy  was  apparently  at  will,  but  the  Caldwell    [Tex.    Civ.   App.]    18   Tex. 

court    makes    no    reference    to    this  Ct.  Rep.  539,  102  S.  W.  461. 

ffict.  120  Kernochan  v.  Manhattan  R.  Co.. 

iiT  See  ante,  at  notes  110.  111.  161   N.  Y.   339,   .55   N.  E.   906;    Win- 

11s  Plimpton    V.    Gardner,    64    Me.  throp  v.  Manhattan  R.  Co.,  17  App. 

360.  Div.  509.  45  N.  Y.  Supp.  515. 

119  Younggreen  v.  Shelton,  101  111.  121  See  post,  at  note  170. 

App.  89;    Gulf,  C.  &  S.  P.  R.  Co.  v.  122-124  gee  ante,  at  note  112. 


2124  ACTIONS  AGAINST  THIRD  PERSONS.  §  353 

b.  Action  by  tenant — (1)  Right  of  action.  The  tenant  has  a 
right  of  action  against  a  person  who  does  any  act  interfering  with 
his  rights  of  possession  or  enjoyment,  and  this  is  independent 
of  whether  the  landlord  also  has  a  right  of  action  for  injury  to 
the  reversion  by  the  same  act.  Any  entry  on  the  land  by  a  stran- 
ger, without  right,  would  give  the  tenant  a  right  to  the  recovery 
of  at  least  nominal  damageSj^^s  ^nd  if  entry  results  in  actual 
injury  to  the  tenant,  he  may  recover  substantial  damages.^-^ 
Thus,  he  may  recover  for  injuries  to  his  crops,^^'''  and  also  to  the 
growing  grass  which  he  is  entitled  to  cut,^^^  and  also,  though, 
ordinarily,  he  cannot  recover  for  permanent  injuries  to  the  trees, 
these  being  the  landlord '8,^20  j^g  may,  it  seems,  recover  for  the 
loss  of  their  shade  and  of  the  fruit  therefrom,i3o  Qp^  jf  entitled 
to  cut  lumber  for  certain  purposes,  for  the  resulting  loss  to  him.^^i 
In  case  of  destruction  of  the  building  on  the  premises,  the  tenant 
may  recover  in  respect  of  the  value  of  his  possessory  interest,  and 

125  Baxter  v.  Taylor,  4  Barn.  &  39  Tex.  Civ.  App.  406,  13  Tex.  Ct. 
Adol.  72.  Rep.  189,  87  S.  W.  746.     In  Texas  & 

126  See  post,  §  353  b  (4).  Pac.    R.    Co.    v.    Torrey    (Tex.    Civ. 

127  Indiana,  I.  &  I.  R.  Co.  v.  Pat-  App.)  16  S.  W.  547,  it  is  decided 
chette,  59  111.  App.  251;  Goodwin  v.  that  a  tenant  at  sufferance  can  re- 
Clover,  91  Minn.  438,  98  N.  W.  322,  cover,  as  against  a  railroad  com- 
103  Am.  St.  Rep.  517;  McKee  v.  St.  pany  which  destroyed  the  grass, 
Louis,  K.  &  N.  W.  R.  Co.,  49  Mo.  App.  only  the  value  of  the  grass  for  graz- 
174;  Grand  Rapids  Booming  Co.  v.  ing  purposes  up  to  the  time  of  the 
Jarvis,  30  Mich.  308;  Childers  v.  commencement  of  an  action  by  the 
Verner,  12  S.  C.  1;  Texas  &  P.  R.  Co.  landlord   to   recover   possession. 

V.  Bayliss,   62  Tex.  570.     The  North  129  See    Woodfall,    Landl.    &    Ten. 

Carolina  statute  (Code  1883,  §  1754),  (13th  Ed.)  738,  citing  Herlakenden's 

vesting  the  possession  of  the  crops  Case,  4  Coke,  62  a;   Espinasse,  Nisi 

in  the  lessor,  is  for  the  lessor's  pro-  Prius,  384.     See,  also,  ante,  at  note  4. 

tection    only,    and    as    against    all  A  tenant  is  not  the  owiier  within 

other   persons   the   tenant  may  sue  a  statute  making  one  cutting  trees 

in  his  own  name  for  an  injury  to  the  on  another's   land   liable   for   treble 

crops.     Bridges  v.  Dill,  97  N.  C.  222,  damages    to    the    owner.     Lewis    v. 

1  S.  E.  767.  Thompson,  3  App.  Div.  329,  38  N.  Y. 

128  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Supp.  316. 

Hall,    71    Ark.    302,    74    S.    W.    293;  iso  Bedingfield   v.    Onslow,    3   Lev. 

Townley  v.  Oregon  R.  &  Nav.  Co.,  33  209;   Co.  Litt.  57  a,  Hargrave's  note 

Or.  323,  54  Pac.  150;  Gulf,  C.  &  S.  F.  (2);  Viner's  Abr.,  Trees   (G). 

R.  Co.  V.  Smith,  3  Tex.  Civ.  App.  483,  i3i  See  Zimmerman  v.  Shreve,   59 

23  S.  W.  89;  Baldwin  v.  Richardson,  Md.  357. 


353 


INTERFERENCE  WITH  ENJOYMENT. 


2121 


the  landlord  in  respect  of  the  injury  to  his  reversion.iss  go  the 
tenant  may  recover  for  acts  done  on  adjoining  land,  if  such  acts 
interfere  with  his  free  enjoyment  of  the  premises,  as  by  the  inter- 
fer(mce  with  a  right  of  way^^s  or  other  easement,^34  i^y  the  pol- 
lution,i35  the  diversion,i36  or  the  obstruction  of  flow,!-"  of  water, 
the  withdravml  of  lateral  support,!3s  the  pollution  of  the  air,!^^ 
or  the  maintenance  of  a  nuisance  in  the  highway.^^'^ 

A  tenant  at  will  has  the  same  right  as  a  tenant  for  years  to  sue 
on  account  of  an  interference  by  a  third  person  with  his  posses- 
sion and  enjoyment,!4oa  unless,  perhaps,  the  interference  is  the 
result  of  the  rightful  erection  of  a  work  of  public  utility,  so  that 
the  damages  recoverable  are  to  be  regarded  as  compensation  for 
property  taken  under  the  right  of  eminent  domain.^'^i 

The  fact  that  the  landlord  has  authorized  a  person  to  commit 
an  act  injurious  to  the  tenant's  possession  or  enjoyment  does  not 
relieve  such  person  from  liability  to  the  tenant  for  the  doing  of 


132  Panton  v.  Isham,  3  Lev.  359,  1 
Salk.  19;  Bass  v.  West,  119  Ga.  698, 
36  S.  E.  244.  In  Foster  v.  Elliott,  33 
Iowa,  216,  it  is  decided  that  a  tenant 
may  maintain  trespass  for  throwing 
down  fences.  As  to  decisions  that 
the  tenant  can  recover  damages  for 
the  whole  injury  to  the  premises,  on 
the  ground  that  he  would  he  liable 
over  to  the  landlord  for  the  injury 
to  the  reversion,  see  ante,  §  352  b. 

133  Hamilton  v.  Dennison,  56  Conn. 
359,  15  Atl.  748,  1  L.  R.  A.  287;  Foley 
v.  Wyeth,  84  Mass.  (2  Allen)  135; 
Morrison  v.  Chicago  &  N.  W.  R.  Co., 
117  Iowa,  587,  91  N.  W.  793; 
Schmoele  v.  Betz,  212  Pa.  32,  61  Atl. 
525,  108  Am.  St.  Rep.  845;  Coleman 
V.  Holden,  88  Miss.  798,  41  So.  374. 

134  Walker  v.  Clifford,  128  Ala.  67, 
29  So.  588,  86  Am.  St.  Rep.  74. 

IS.-;  Sherman  v.  Fall  River  Iron 
Works  Co.,  84  Mass.  (2  Allen)  524, 
79  Am.  Dec.  799. 

136  Crook  V.  Hewitt,  4  Wash.  749, 
31  Pac.  28. 

137  Baltimore,  etc.,  R.  Co.  v.  Hac- 


kett,  87  Md.  224,  39  Atl.  510;  Loc- 
kett  v.  Ft.  Worth,  etc.,  R.  Co.,  78 
Tex.  211,  14  S.  W.  564;  Garland  v. 
Aurin.  103  Tenn.  555,  53  S.  W.  940, 
48  L.  R.  A.  862,  76  Am.  St.  Rep.  699. 
i3sBass  v.  West,  110  Ga.  698,  36 
S.  E.  244;  Baugher  v.  Wilkins,  16 
Md.  35,  77  Am.  Dec.  279  (removing 
party  wall). 

139  Central  R.  Co.  v.  English,  73 
Ga.  36G;  Lockett  v.  Ft.  Worth  &  R. 
G.  R.  Co.,  78  Tex.  211,  14  S.  W.  564. 

140  Sherman  v.  Fall  River  Iron 
Works  Co.,  84  Mass.  (2  Allen)  524, 
79  Am.  Dec.  799;  Bentley  v.  At- 
lanta, 92  Ga.  623,  18  S.  E.  1013. 

i4oa  Hamilton  v.  Dennison,  56 
Conn.  359,  15  Atl.  748,  1  L.  R.  A. 
287;  St.  Louis.  I.  M.  &  S.  R.  Co.  v. 
Hall,  71  Ark.  302,  74  S.  W.  293; 
Foley  V.  Wyeth,  84  Mass.  (2  Allen) 
135;  Goodwin  v.  Clover,  91  Minn. 
438,  98  N.  W.  322,  103  Am.  St.  Rep. 
517. 

141  See  Kankakee  &  S.  R.  Co.  v. 
Horan,  131  111.  288,  23  N.  E.  621. 


2126 


ACTIONS  AGAINST  THIRD  PERSONS. 


§  353 


Ruch  not,  sinoe  the  Inndlord  has  no  power  to  confer  such  nnthor- 
ity;^'*-  but  such  a  ruk^  could  not  be  api)licd,  it  appears,  in  favor 
of  the  tonai^Ji  asserting  a  claim  for  injury  to  the  landlord's  rever- 
sionary rifi'hts,  if  his  right  to  recover  for  such  injury  is  to  be 
regarded  as  based  on  the  theory  that  the  tenant  is  liable  to  the 
landlord  for  such  injury,!*-"^  since  such  liability  could  not  well 
exist  I'or  an  injury  to  the  landlord  which  was  authorized  by  the 
latter. 

(2)  Interference  existing  prior  to  lease.  That  the  interference 
with  the  tenant's  enjoyment  is  the  result  of  a  condition  of  things 
originally  created  before  the  making  of  the  lease,  which  condition 
is  allowed  by  its  creator  to  continue  thereafter,  does  not  ordi- 
narily deprive  the  tenant  under  the  lease  of  a  right  of  action  on 
account  of  such  interference.^^'*  One  has  a  right  to  sue  on  account 
of  a  wrong  to  his  property  rights,  as  by  the  maintenance  of  a 
nuisance,  although  his  predecessor  in  the  possession  also  suffered 
IVoiii  such  wrong.  And  the  fact  that  he  obtained  the  property 
on  Jx'tter  terms  as  regards  price  or  rent  by  reason  of  such  injuri- 
ous condition  is,  it  seems,  not  ground  for  relieving  the  wrongdoer 


i42Darlin£r  v.  Kelly,  113  Mass.  29; 
Brown  v.  Powell,  25  Pa.  229;  Crow- 
ell  V.  New  Orleans  &  N.  E.  R.  Co., 
61  Miss.  631;  Central  R.  Co.  v.  Val- 
entine, 29  N.  J.  Law  (5  Dutch.) 
561;  Fisher-Leaf  Co.  v.  Caldwell,  15 
Ky.  Law  Rep.  542;  Hojland  v.  City 
of  San  Antonio  (Tex.  Civ.  App.)  23 
S.  W.  75G;  Miller  v.  P^tzgerald  Dry 
Goods  Co..  62  Neb.  270,  86  N.  W. 
1078.  In  Mine  Hill  &  S.  H.  R.  Co. 
V.  Lippincott,  86  Pa.  468,  it  was  held 
that  a  landlord  by  releasing,  after 
the  makins  of  the  lease,  all  his 
rights  under  a  covenant,  made  with 
him  before  the  lease  by  a  railroad 
company,  to  change  the  location  of 
its  right  of  way  across  the  land, 
could  not  affect  the  tenant's  right  to 
sue  for  the  brcnch  of  the  covenant. 
It  does  not  clearly  appear  on  what 
principle  the  tenant  was  regarded 
as  having  a  right  to  sue  on  the  cov- 


enant, it  being  merely  g^aid  that  he 
was  "rightfully  a  use  party,  and  had 
an  interest  which  his  lessor  could 
not  revoke  or  transfer."  Presum- 
ably it  was  regarded  as  a  covenant, 
the  benefit  of  which  ran  witli  the 
land.     See  Tiffany,  Real  Prop.  §  343. 

14.3  See  ante,  at    notes  32-39. 

144  Central  R.  Co.  v.  English,  73 
Ga.  366;  Morrison  v.  Chicago  &  N. 
W.  R.  Co.,  117  Iowa,  587,  91  N.  W. 
793;  McKee  v.  St.  Louis,  K.  &  N.  R. 
Co.,  49  Mo.  App.  174;  Bly  v.  Edison 
Elec.  Illuminating  Co.,  172  N.  Y.  1, 
64  N.  E.  745,  58  L.  R.  A.  500;  Sher- 
man V.  Pall  River  Iron  Works  Co., 
84  Mass.  (2  Allen)  524,  79  Am.  Dec. 
799;  Smith  v.  Phillips,  8  Phila. 
(Pa.)  10.  Contra,  Funston  v.  Hoff- 
man. 232  111.  SCO,  83  N.  B.  917;  ante, 
note   114. 


§  353  INTERFERENCE   WITH   ENJOYMENT.  2127 

from  liability  to  him  or  for  reducing  such  liability.'^-"^  In  fixing 
damage:-)  for  an  injury  to  land,  the  courts  do  not  concern  them- 
selves with  the  cost  of  the  land.  In  case  of  an  injury  by  the  erec- 
tion of  a  structure  under  public  authority,  however,  one  claiming 
under  a  lease  made  after  the  erection  has  been  held  to  be  entitled 
to  no  damages  on  account  thereof,  it  Ijeing  assumed  that,  since 
the  structure  was  necessarily  permanent,  the  lease  was  taken  on 
the  understanding  that  the  right  of  action  for  injury  to  the  prop- 
erty should  be  exclusively  in  the  landlord,^ ^'^  and  it  would  seem 
clear  that,  in  any  case  in  which  the  owner  of  land  is  allowed  to 
recover  in  one  action  for  all  damage,  future  as  well  as  past,  one 
to  whom  he  subsequently  leases  the  land,  as  one  to  whom  he 
conveys  it  in  fee,  could  not  recover  for  the  continuance  of  the 
nuisance. 

(3)  Form  of  action.  A  tenant  may  bring  an  action  of  trespass 
quare  clausum  f regit  for  any  injury  involving  a  violation  of  his 
possession.14'^  This  right  exists  in  favor  of  a  tenant  at  will  as  well 
as  of  a  tenant  for  years,!^^  even  though  his  landlord  also  has  the 

145  Halsey  v.  Ijehigh  Valley  R.  Co.,  were  not  to  be  regarded  as  agents  of 

45    N.    J.    Law,    26;    Bly    v.    Edison  the    defendant    adjusting    with    the 

Elec.  Illuminating  Co.,  172  N.  Y.  1,  tenants  the  compensation  for  the  in- 

64  N.  E.   745,  58  L.  R.  A.  500.  Con-  jury  to  be  done."     Per  Dixon,  J.,  in 

tra.  Baker  v.  Sanderson,  20  Mass.  (3  Halsey  v.  Lehigh  Valley  R.  Co.,  45 

Pick.)    348;    Sumner  v.  Tileston,  24  N.  J.  Law,  26. 

Mass.    (7    Pick.)    198.     "By    the   let-        i46  Kernochan  v.  New  York  El.  R. 

ting  the  tenants  acquired  the  right  Co.,  128  N.  Y.  559,  29  N.  E.  65;  Bly 

to    the    enjoyment    of    the    property  v.  Edison  Elec.  Illuminating  Co.,  172 

unimpaired  by  any  wrongful  acts  of  N.  Y.   1,   64   N.  E.  745,  58  L.  R.  A. 

the  defendant.     That,  through  fear  of  500;    Sposato   v.   New  York,   178   N. 

such  acts,  they  had  been  enabled  to  Y.  583,  70  N.  E.  1109.     And  see  Chi- 

obtain     that   right  at  a  diminished  cago  &  A.   R.   Co.  v.   Smith,   17   111. 

price,  neither  licensed  the  acts  nor  App.  (17  Bradw.)  58. 
relieved  the  defendants  in  any  de-  i*7  See  ante,  §  3  a. 
gree   from    the    duty   of    reparation.        i^s  Y.  B.  21   Hen.   7,  15;   Y.  B.  11 

The  measure  of  the  tenant's  dam-  Hen.  4,  23;  2  Rolle's  Abr.  551;  Geary 
ages     did     not     depend     upon     the"  v.   Barecroft,   1   Sid.   347;    Brown   v. 

amount    of    rent    which    they    paid,  Bates,  Bray   (Vt.)   230;   Hayward  v. 

but    upon    the    diminution    in    the  Sedgeley,   14   Me.   439,   31  Am.    Dec. 

value  of  the  use  of  the  premises  re-  64;    Greber  v.  Kleckner,  2  Pa.   289; 

suiting  from  the  wrongful  diversion  Gunsolus  v.  Lormer,  54  Wis.  630,  12 

of  water.     The  landlords,  in  leasing  N.  W.  62. 
to    the    tenants    at    reduced    rates, 


2128  ACTIONS  AGAINST  THIRD  PERSONS.  §  353 

right  to  bring  the  action.^-*^  A  tenant  at  sufferance  even  may- 
bring  trespass,  as  having  the  possession.!^*' 

A  tenant  who  has  subleased  to  another  cannot,  after  the  latter 
has  taken  possession,  maintain  an  action  of  trespass  against  a 
third  person,  since  possession  or  the  right  of  possession  is  neces- 
sary for  this  purpose.! ^'^^ 

The  tenant,  like  the  landlord,  is  not  necessarily  restricted  to  an 
action  for  damages  against  one  interfering  with  his  possession  or 
enjoyment,  but  may,  in  a  proper  case,  obtain  an  injunction  against 
such  interference.  Thus  an  injunction  has  issued,  on  the  applica- 
tion of  the  tenant,  against  a  diversion  of  water,! ^i  the  maintenance 
of  an  elevated  railroad  in  front  of  the  premises,!^^  the  obstruc- 
tion of  a  right  of  way  thereto,!53  and  the  operation  of  an  electric 
lighting  plant,  emitting  smoke  and  cinders  and  causing  a  vibra- 
tion to  the  injury  of  the  premises.^^^ 

(4)  Measure  of  damages.  The  damages  recoverable  by  a 
tenant  for  interference  with  his  enjoyment  are  to  be  determined 
by  tlie  same  considerations  as  apply  in  an  action  by  a  tenant  in 
fee  simple  in  possession,  modified  by  the  fact  that  his  estate  is 
limited  in  duration,  and  that,  consequently,  the  total  damages 
cannot  be  the  same  as  if  he  had  an  estate  in  fee.  Ordinarily,  it 
appears,  he  is  entitled  to  recover  the  diminution  in  rental  value^^^ 

149  See  ante,  at  notes  86,  87.  ■   ler  v.  Fitzgerald  Dry  Goods  Co.,  62 

150  2  Rolle's  Abr.,  Trespass  (N)  pi.    Neb.  270,  86  N.  W.  1078. 

1;    Heyden   v.   Smith,   13    Coke,    67;  154  Bly  v.   Edison  Elec.   Illuminat- 

Greber  v.  Kleckner,  2  Pa.  28.  ing  Co.,  172  N.  Y.  1,  64  N.  E.  745,  58 

130a  McDougall  V.  Campbellton  Wa-  L.  R.   A.   500. 

ter  Supply  Co.,  34  New  Br.  467.  i^^  McPhillips     v.     Fitzgerald,     76 

151  Crook  V.  Hewitt,  4  Wash.  749,  App.  Div.  15,  78  N.  Y.  Supp.  631; 
31  Pac.  28.  Pritchard   v.   Edison   Elec.    lllumin- 

i52Witmark  v.   New  York   El.   R.  ating  Co.,  179  N.  Y.  364,  72  N.  E.  243; 

Co.,  149  N.  Y.  393,  44  N.  E.  78.     In  Elliott   v.    Missouri    Pac.    R.    Co.,    8 

this  case  it  was  held  that  if  the  ten-  Kan.  App.  191,  55  Pac.  490;   Schlem- 

ant's  lease  expired  pending  the  pro-  mer  v.  North,  32  Mo.  206.     In  Miller 

ceeding,    and    a    renewal    lease    was  v.  Edison  Elec.  Illuminating  Co.,  l64 

made  i^  accordance  with  covenants  N.  Y.  17,  76  N.  E.  734,  3  L.  R.  A.  (N. 

of    the    former    lease,    the    renewal  S.)    1060,  it  is  said   that   in  Ely  v. 

lease   was   admissible   to   show   that  Edison  Elec.  Illuminating  Co..  172  N. 

his  interest  in  the  property  had  con-  Y.  1,  64  N.  E.  745,  58  L.  R.  A.  500, 

tinued.  ^^^    tenant    recovered    the    deprecia- 

153  Schmoele  v.  Betz,  212  Pa.  32,  61  tion  in  the  rental  value  of  the  prem- 

Atl.  525,  108  Am.  St.  Rep.  845;  Mil-  ises.     See  ante,  note  112. 


§353 


INTERFERENCE  WITH  ENJOYMENT. 


2129 


for  the  period  of  the  lease,^^^  that  is,  the  diminution  in  the  value 
of  the  use.i^'^  The  same  idea  is,  it  is  conceived,  expressed  by  the 
statement  that  he  may  recover  the  diminished  value  of  his  inter- 
est.^^8  Occasionally,  additional  items  of  damage  have  been  al- 
io vred  in  favor  of  the  tenant.^  ^^  As  before  remarked,^  ^"^  it  does 
not  seem  that  the  damages  recoverable  by  the  tenant  should  be 
reduced  because  the  rent  to  be  paid  by  him  was  reduced  on 
account  of  the  w^rongful  interference  with  the  enjoyment. 

(5)  Effect  of  contract  by  landlord.  It  has  been  decided  that 
a  release  by  the  ovs^ner  of  land  of  all  rights  of  action  on  account 
of  the  construction  and  maintenance  of  a  railroad  is  effective 
as  against  one  to  whom  he  subsequently  leases  the  land,  and  who 


156  Oakes  v.  Aldridge,  46  Mo.  App. 
11;  Bass  v.  West,  110  Ga.  698,  36  S. 
E.  244;  Elliot  v.  Missouri  Pac.  R. 
Co.,  8  Kan.  App.  191,  55  Pac.  490; 
Schlemmer  v.  North,  32  Mo.  206. 

157  In  St.  Louis,  I.  M.  &  S.  R.  Co. 
V.  Hall,  71  Ark.  302,  74  S.  W.  293,  it 
was  said  that  he  was  entitled  to  the 
diminution  in  "usable  value."  That 
"rental  value"  means  "value  of  use," 
see  Alexander  v.  Bishop,  59  Iowa, 
572,  13  N.  W.  714;  Nelson  v.  Minne- 
apolis &  St.  L.  R.  Co.,  41  Minn.  131, 
42  N.  W.  788;  Wood  v.  State,  66  Md. 
61,  5  Atl.  476. 

15S  Fisher  v.  Grace,  27  U.  C.  Q.  B. 
158   (tenancy  from  year  to  year). 

159  In  Bass  v.  West,  110  Ga.  698, 
36  S.  E.  244,  it  was  held  that  the 
profits  of  the  tenant's  business 
might  be  considered  in  assessing  his 
damages  for  wrongful  ouster  by  a 
third  person.  In  Hawthorne  v. 
Siegel,  88  Cal.  159.  25  Pac.  1114,  22 
Am.  St.  Rep.  291,  it  was  held  that 
the  tenant,  compelled  to  abandon 
the  premises  by  reason  of  another's 
trespass,  could  recover  the  value  of 
the  leasehold,  the  expenses  of  re- 
moval, and  compensation  for  the  loss 
of  the  use  of  improvements  made  by 
him  and  of  the  benefit  of  a  contract 


which  he  had  made  for  a  water 
supply. 

In  Pritchard  v.  Edison  Elec.  Illum- 
inating Co.,  179  N.  Y.  364,  72  N.  E. 
243,  it  was  held  that  the  tenant  of 
a  hotel  might  recover  not  only  the 
diminution  in  rental  value  by  rea- 
son of  a  discharge  of  soot  and  cin- 
ders, but  also  additional  damages  by 
reason  of  the  fact  that  upholstery 
became  sailed  and  needed  renewing 
more  frequently  than  formerly,  and 
that  an  extra  man  had  to  be  em- 
ployed to  do  the  cleaning.  It  might, 
it  is  conceived,  be  suggested  that 
these  drawbacks  to  the  utilization  of 
the  hotel  were  considered  in  deter- 
mining the  extent  of  the  diminution 
in  rental  value. 

In  McPhillips  v.  Fitzgerald,  177  N. 
Y.  543,  69  N.  E.  1126,  it  was  held 
that  in  estimating  the  value  of  build- 
ings on  leased  land,  which  buildings 
belonged  to  the  tenant,  the  fact 
might  be  considered,  in  an  action  by 
the  tenant,  that  the  owner  of  the 
land,  a  religious  corporation,  had 
been  in  the  habit,  for  many  years,  of 
renewing  its  short  time  leases  in 
favor  of  the  owners  of  the  buildings 
on  the  leased  land. 

ICO  See  ante,  notes  144,  145. 


L.  and  Ten.  134. 


2130  ACTIONS  AGAINST  THIRD  PERSONS.  §354 

I 
knows  of  the  release.^ ^i  If  the  right  of  action  for  all  damage,  pres- 
ent and  future,  can  be  regarded  as  accruing  immediately  upon 
the  construction  of  the  railroad,  there  can  be  no  question  as  to 
the  effectiveness  of  such  a  release  as  against  a  subsequent  lessee 
or  grantee.  If,  however,  the  subsequent  lessee  or  grantee  would, 
apart  from  the  release,  have  a  right  of  action  on  account  of  result- 
ing damage  subsequently  arising,  such  a  release  can,  it  would 
seem,  exclude  his  right  of  action  only  on  the  theory  fhat  it  in- 
volves a  grant  to  the  railroad  company  of  an  easement  or  servi- 
tude in  the  land,  for  the  purpose  of  fiowage,  pollution  of  air,  or 
other  purpose,  as  the  case  may  be.  Or,  perhaps,  its  effectiveness 
against  a  lessee  or  grantee  of  the  land  taking  with  notice  might 
be  supported  by  an  extension  of  the  equitable  theory  before  re- 
ferred to,^^2  that  one  taking  with  notice  of  an  agreement  restrict- 
ing the  use  of  the  land  takes  subject  thereto. 

It  has  in  one  case  been  held  that  the  tenant  under  a  lease  can 
recover  against  a  third  person  on  account  of  injuries  caused  to 
the  tenant's  property  on  the  premises  by  such  person's  neglect 
in  failing  to  keep  the  premises  heated,  as  he  had  contracted  with 
the  landlord  to  do,  so  as  to  prevent  the  bursting  of  pipes  and 
consequent  flooding  of  the  premises.^^^  The  tenant's  right  of  re- 
covery in  this  case  was  by  reason,  not  of  the  contractor's  breach  of 
his  contract,  but  of  the  latter's  failure  to  exercise  due  diligence 
in  doing  what  he  had  set  about  to  do.  In  another  case  it  was  held 
that  if  one  contracted  with  his  adjoining  owner  to  keep  a  fence 
in  repair,  one  to  whom  the  former  leased  the  property  was  bound 
thereby,  and  consequently  could  not  recover  against  the  adjoin- 
ing owner  because  the  latter 's  cattle  entered  by  reason  of  a  lack 
of  repair.i^* 

§  354.    Taking  for  public  use. 

The  tenant  is,  like  any  other  owner  of  property,  entitled  to  com- 
pensation for  his  interest  if  taken  for  public  use.^^^ 

161  Gulf,  C.  &  S.  F.  R.  Co.  V.  Thorn-  Hoffeditz   v.    South   Penn.    R.    &   M. 

ton   (Tex.  Civ.  App.)   109  S.  W.  220.  Co.,  129  Pa.  264,  18  Atl.  125. 

In  this  case,  however,  the  release  in  i*'^  gee  ante,  §  131. 

terms    provided    that   it  should   run  i&3  Pittsfield   Cottonwear  Mfg.    Co. 

with   the   land   and  operate   against  v.  Pittsfield  Shoe  Co.,  71  N.  H.  522, 

the    assigns    of    the    releasor.     That  o3  Atl.  807,  60  L.  R.  A.  116. 

such  a  release  is  effective  as  against  i«*  Baynes  v.  Chastain,  68  Ind.  ?76. 

a   subsequent  lessee  is  assumed  in  iss  See  2  Lewis,  Eminent  Domain, 


§354 


TAKING  FOR  PUBLIC  USB. 


2131 


In  the  case  of  an  interference  with  an  easement  or  natural  right 
appurtenant  to  the  leased  premises,  by  reason  of  the  construction 
or  operation  of  a  work  of  a  public  character,  such  as  a  railroad, 
the  landlord  has,  no  doubt,  the  right,  as  in  other  cases,  to  recover' 
for  the  injury  to  the  reversion.  In  those  jurisdictions  in  which 
it  is  the  rule  that  all  damages  on  account  of  such  a  work,  past, 
present  and  prospective,  must  be  recovered  in  a  single  suit,^^^ 
the  lessee  is  evidently  in  the  same  position  as  a  purchaser,  and 
cannot  recover  any  damages  in  case  the  construction  of  the  work 
was  prior  to  the  lease  •,i<''^  while  if  the  rule  prevails  that  dam- 
ages can  be  recovered  only  for  injuries  sustained  prior  to  the 
commencement  of  the  suit,  and  that  other  suits  must  be  brought 
for  injuries  subsequently  sustained,  the  lessee  can,  it  seems, 
recover  for  injuries  caused  to  his  possessory  interest,  although 
the  structure  was  erected  before  the  lease.i^s  In  case  such  a 
structure  is  erected  diu-ing  the  tenancy,  the  tenant  has,  ordinarily, 
a  right  of  action  for  the  injuries  to  his  interest.^^^ 


§  326;  15  Cyclopedia  Law  &  Proc. 
790;  Kohl  v.  United  States,  91  U.  S. 
S67,  23  Law.  Ed.  449;  Pause  v.  Atlan- 
ta, 98  Ga.  92.  26  S.  E.  489,  58  Am.  St. 
Rep.  290;  Philadelphia,  etc.,  R.  Co. 
V.  Getz,  113  Pa.  214,  6  Atl.  356;  Gluck 
V.  Baltimore,  81  Md.  315,  32  Atl.  515, 
48  Am.  St.  Rep.  515;  Cobb  v.  City  of 
Boston,  109  Mass.  438;  In  re  William 
Street,  19  Wend.  (N.  Y.)  678;  Seattle 
&  M.  R.  Co.  V.  Scheike,  3  Wash.  St. 
625,  29  Pac.  217,  30  Pac.  503. 

In  Burridge  v.  New  Albany  &  S.  R. 
Co.,  9  Ind.  546,  it  was  held  that  when 
the  lease  reserved  to  the  lessor  the 
right  of  recovery  of  damages  for  the 
location  of  a  railroad  though  the 
premises,  the  lessee  could  not  recov- 
er on  account  of  such  a  location,  the 
lease  being  in  such  case  regarded  as 
subject  to  the  railroad  right  of  way. 

It  has  been  decided  that  a  tenant 
from  year  to  year  cannot  claim  dam- 


ages as  for  his  deprivation  of  the 
property  for  another  year  because 
the  landlord  failed  to  terminate  the 
tenancy  at  the  end  of  the  current 
year,  condemnation  proceedings  hav- 
ing been  instituted  before  such  end 
of  the  current  year,  and  his  holding 
over  being  thus  subject  to  such  pro- 
ceedings. In  re  State  House,  21  R. 
I.  59,  41  Atl.  1004,  citing  Schreiber  v. 
Chicago  &  E.  R.  Co.,  115  111.  340,  3 
N.  E.  427,  where  it  was  decided  that 
after  the  filing  of  the  petition  in  con- 
demnation proceedings,  a  tenant 
could  not,  by  holding  over  his  term, 
acquire  any  new  rights  as  against 
the  petitioner. 

166  See  2  Lewis,  Eminent  Domain, 
§  653  b. 

167  See  Illinois  Cent.  R.  Co.  v.  Per- 
rell,  108  111.  App.  659. 

168  See  ante,  at  note  108. 

169  2    Lewis,    Eminent    Domain,    § 
483.     But  see  post,  at  note  173. 


2]  32  ACTIONS  AGAINST  THIRD  PERSONS.  §  354 

In  New  York  the  view  has  been  adopted  that  the  landlord,  and 
he  alone,  is  entitled  to  maintain  an  action  for  injury  to  property 
by  the  construction  of  an  elevated  railway  in  the  street  on  which 
the  property  abuts,  if  the  lease  was  not  made  until  after  such 
construction,  the  theory  being  that  the  presence  of  the  railroad 
must  have  been  considered  in  fixing  the  rent  under  the  lease.^^" 
It  has  on  the  other  hand  been  there  decided  that  in  the  case  of  a 
conveyance  in  fee  of  the  abutting  property  after  the  construction 
of  the  railroad,  the  right  of  action  for  damage  accruing  there- 
after is  in  the  grantee,  for  the  reason  that  the  owner  of  the  prop- 
erty is  entitled  to  sue  on  account  of  injuries  thereto,  without  ref- 
erence to  the  fact  that  he  may  have  acquired  it  at  a  reduced  price 
by  reason  of  the  presence  of  the  railroad.^^^  There  may  be  a 
question,  it  is  submitted,  whether  the  same  rule  should  not  apply 
in  the  case  of  a  lease  for  years  as  in  the  case  of  a  conveyance  in 
fee.  In  the  former  case,  as  in  the  latter,  the  tenant  is  entitled  to 
enjoy  his  property  free  from  interference  from  a  wrongdoer,  and 
should  have  a  right  of  action  for  that  purpose,  and  in  determin- 
ing the  liability  of  the  wrongdoer  to  either  the  tenant  or  the  land- 
lord, the  compensation  paid  by  the  former  to  the  latter,  whether 
in  the  shape  of  a  gross  sum  or  a  periodic  rent,  should  not  be  con- 
sidered.i'^2  There  is  in  principle,  it  is  conceived,  no  distinction  in 
this  regard  between  the  position  of  one  who  acquires  a  fee  simple 
interest  in  land  and  that  of  one  who  acquires  an  estate  for  years, 
whether  for  one  year  or  ninety-nine  years  with  a  covenant  for 
perpetual  renewal.  The  distinction  involved  in  these  decisions 
obviously  suggests  the  question  whether  a  right  of  action  would 
exist  in  favor  of  a  grantee  in  fee  simple  who  agrees  to  pay  a  stipu- 
lated rent  instead  of  a  certain  purchase  price,  or  in  favor  of  a 
lessee  for  years,  who  instead  of  agreeing  to  pay  a  periodic  rent, 
pays  a  sum  in  gross  for  the  lease. 

In  the  same  jurisdiction  it  has;  been  intimated  that,  if  the  con- 
struction of  the  railway  is  subsequent  to  the  lease,  the  landlord 
cannot,  at  least  during  the  existence  of  the  tenancy,  recover  dam- 
ages on  account  of  such  construction,  unless  the  lease  provides 

170  Kernochan  v.  New  York  El.  R.  Co.,  128  N.  Y.  436.  28  N.  E.  518.  26 
R.  Co..  128  N.  Y.  5.59.  29  N.  E.  65.  Am.  St.  Rep.  486. 

171  Pappenheim  t.  Metropolitan  El.       i"  See  ante,  §  353  b  2. 


§  355  INTERFERENCE  WITH  RELATION.  2133 

for  a  readjustment  of  the  rent  at  intervals  during  the  tenancy 
with  reference  to  the  rental  value  as  it  then  exists.^'^^  This  view 
is  not  in  accord  with  the  cases  generally  as  to  the  right  of  a  land- 
lord to  recover  for  injury  to  the  reversion.^'^^ 

§  355.    Interference  with  relation  of  tenancy. 

There  are  occasional  early  decisions  that  one  who  by  threats 
or  force  causes  a  tenant  at  will  to  depart  from  the  tenancy  is 
liable  in  damages  to  the  landlord.^^^  it  is  said,  moreover,  that 
such  an  action  lies  only  in  the  case  of  a  tenancy  at  will,  for  the 
reason,  apparently,  that  if  a  tenant  for  years  is  thus  forced  to 
leave  the  premises,  the  landlord  still  has  the  remedies  of  debt  for 
rent  and  distress.^^^  It  has,  however,  been  decided  in  one  case 
in  this  country  that  a  right  of  action  exists  in  favor  of  a  landlord 
whose  tenant  for  years  is  thus  caused  to  leave, 'and  who  thereby 
loses  the  rent  ;i^'^  and  there  are  other  cases  in  which  the  existence 
of  such  a  right  of  action  in  the  landlord  is  apparently  assumed-^^^ 

The  question  whether  a  right  of  action  exists  in  favor  of  the 
landlord  when  a  tenant  for  years  is  thus  induced,  by  force,  threats, 
or  persuasion,  to  leave  the  premises,  and,  consequently,  ceases  to 
pay  rent,  would  seem  to  depend,  in  some  degree,  upon  the  ques- 
tion whether,  and  to  what  extent,  in  the  particular  jurisdiction, 
one  party  to  a  contract  has  a  right  of  action  against  a  person 
inducing  its  violation  by  the  other  party,  a  question  upon  whicK 
the  courts  are  at  very  considerable  variance.i'^^  The  mere  aban- 
donment of  the  premises  by  the  tenant  under  compulsion  from  a 

173  Kernochan  v.  Manhattan  R.  Co.,  the  intentional  and  malicious  con- 
161  N.  Y.  339,  55  N.  E.  906.  duct  of  the  defendant. 

174  See  ante,  §  353  a.  i7s  Ashley  v.  Wilson,  61  Ga.  297; 

175  Y.  B.  21  Hen.  6,  31,  32,  pi.  18;  Kernan  v.  Humble,  51  La.  Ann.  389, 
Y  B.  9  Hen.  7,  7,  pi.  4.  25  So.  431,  and  see  Bell  v.  Midland  R. 

176  Y.  B.  21  Hen.  6,  31.  32,  pi.  18;  Co..  10  C.  B.  (N.  S.)  287.  In  Wal- 
Bro.  Abr.,  Trespass,  pi.  144.  den  v.  Conn,  84  Ky.  312,  1  S.  W.  537, 

177  Aldridge  v.  Stuyvesant,  1  Hall  4  Am.  St.  Rep.  204,  there  is  an  ex- 
(N.  Y.)  235.  The  court  (Oakley,  J.)  tended  dictum  in  favor  of  the  exis- 
bases  the  decision  on  the  ground  that  tence  of  such  a  right  of  action. 

the  landlord  was  injured  by  the  179  See  Pollock,  Torts  (6th  Ed.) 
"fraudulent  misconduct"  of  defend-  230,  note.  For  citations  of  cases  in- 
ant.    By  this  is  meant,  presumably, 


2134  ACTIONS  AGAINST  THIRD  PERSONS.  §  356 

third  person  does  not  injure  the  landlord,  since  he  does  not  there- 
by lose  his  right  to  the  rent/^'^  and  such  ouster  by  a  third  person 
could  never,  it  seems,  give  a  right  of  action  to  the  landlord  unless 
as  a  result  thereof  the  tenant  failed  to  pay  the  rent. 

A  state  statute  is  occasionally  found  imposing  a  liability  upon 
one  who  entices  away  another 's  tenant  or  employs  such  tenant  of 
another.181 

§  356.    Action  of  ejectment. 

One  entitled  under  a  lease  has,  ordinarily,  the  right  to  maintain 
ejectment  against  a  third  person  to  recover  possession  of  the  prop- 
gp^y  1S2  Even  a  lessee  who  has  not  entered  on  the  premises  is 
properly,  it  seems,  to  be  regarded  as  having  this  right.^^^  A  lessee 
or  assignee  of  a  lessee  who  has  leased  to  another  has,  however,  no 
such  right,  since  not  he,  but  the  sublessee,  is  entitled  to  posses- 


sion 


184 


Upon  the  question  whether,  in  the  case  of  a  tenancy  at  will,  the 
landlord  or  the  tenant  is  the  proper  person  to  maintain  ejectment 
against  one  wrongfully  in  possession,  the  authorities  are  few. 
There  is  a  dictum  to  the  effect  that  the  landlord  cannot  maintain 
ejectment  on  account  of  the  ouster  of  the  tenant  at  will,  he  not 
having  the  possession/ ^^  and  it  has  been  asserted  that  the  tenant 
at  will  may  maintain  the  action.^se    Such  would  seem,  unquestion- 


volving    this    general    question,    see  300,  45  N.  E.  627. 

Hammon,  Contracts,  711.  "5  stone  v.  Grubham,  1  Rolle,  3; 

180  See  ante,  §§  182  h,  186  b.  2    Bulst.    225.     But    see    dictum    of 

181  Georgia  Acts  1901,  p.  63  (see  Bridgman,  C.  J.,  contra,  as  stated  in 
Pace  V.  Goodson,  127  Ga.  211,  56  S.  E.  Viner's  Abr.,  Ejectment  (M),  pi.  18. 
363);  Mississippi  Laws  1900,  c.  102,  ise  Buntin  v.  Doe,  1  Blackf.  (Ind.) 
p.  140  (see  Wagner  v.  Ellis,  85  Miss.  27;  Covert  v.  Morrison,  49  Mich.  133, 
422,  37  So.  959;  Sneed  v.  Oilman  13  N.  W.  390,  citing  Runnington, 
(Miss.)  44  So.  830).  The  latter  act  Ejectment,  9,  which  states  moreover 
does  not  appear  in  Miss.  Code  1906.  that  the  tenant  at  will  may  make  a 

182  Cobb  V.  Lavalle,  89  111.  331,  31  lease  for  years  for  the  purpose  of 
Am.  Rep.  91;  Austin  v.  Kimball,  167  maintaining  ejectment.  That  a  ten- 
Mass.  300,  45  N.  E.  627;  Viner's  Abr.,  ant  at  will  may  make  such  a  lease. 
Ejectment,  pi.  18.  see  Spark  v.  Spark,  Het.  73 ;    Homes 

183  See  ante,  §  37.  v.  Bingley,   Styles.  380;   Blunden  v. 

184  Austin   v.    Kimball,   167    Mass.  Baugh,  Cro.  Car.  302. 


§  356  EJECTMENT.  2135 

ably,  to  be  the  case  when  the  tenant  at  will,  as  in  most  of  the 
states,  has  the  right  to  retain  possession,  as  against  the  landlord, 
until  the  expiration  of  a  notice  from  the  latter  of  a  certain  lengh. 
The  tenant  has,  until  the  expiration  of  the  required  period  after 
notice,  "not  only  the  possession,  but  also  the  right  of  possession, 
and,  in  this  respect,  he  stands  on  the  same  footing  as  a  tenant  for 
a  term  certain,  "^^t  Even  in  a  jurisdiction  where  the  tenancy  is 
terminable  without  previous  notice,  it  is  difficult  to  see  why  the 
tenant  should  not  have  a  right  of  action.  He  has  the  right  of  pos- 
session, and  usually  the  actual  possession  as  well,  and  the  fact  that 
this  right  may  at  any  time  be  brought  to  an  end  by  the  action  of 
the  landlord  is  not,  it  seems,  properly  available  to  the  third  person 
wrongfully  taking  or  retaining  possession,  ^^s 

At  common  law,  in  case  an  action  of  ejectment  was  brought 
against  the  tenant  under  a  lease,  he,  the  tenant,  was  not  com- 
pelled to  give  notice  of  the  action  to  the  landlord,  and,  even  if 
the  landlord  did  receive  notice  of  the  action,  there  was  some  ques- 
tion whether  he  could  be  permitted  to  defend,  unless  the  tenant 
consented  that  he  should  do  so,  the  result  of  which  might  be  that, 
if  the  tenant  failed  to  defend  the  action,  and  the  plaintiff  accord- 
ingly obtained  possession,  the  landlord  would  be  able  to  recover 
possession  only  by  showing  a  good  title,  which  he  might  not  al- 
ways be  able  to  do.^^^  This  state  of  uncertainty  was  remedied  by 
St.  11  Geo.  2,  c.  19,  §  13,  which  provided  in  effect  that  the  court 
might  suft'er  the  landlord  to  appear  and  defend  the  action.  In  a 
number  of  states,  even  apart  from  statute,  the  landlord  is  ordi- 
narily permitted  to  come  in  and  defend-^^^     In  some  there  is  a 

187  Per  Wilde,  J.,  in  French  v.  Button  v.  Warschauer,  21  Cal.  609, 
Fuller,  40  Mass.    (23  Pick.)    104.  82  Am.  Dec.  765;  Reay  v.  Butler,  69 

188  In  Ashford  v.  McNaughten,  11  q^^    572,  n  pac.  463;    Thompson  v. 

U.  C.  Q  B.  171.  it  was  assumed  that  g^^^^^^j.^  7  m.    (2  Gilm.)    271;    Mc- 

a  mortgagor  in  possession,  in  effect  /o  o-t.>,  \  occ 

^       .„           , ,        ^.   „   ■  Cleland  v.  Doe,  6  Ky.  (3  Bibb.)  266; 
a   tenant   at   will,   could   not   mam- 

tain  the  action.  Buford  v.   Gaines,  29   Ky.    (6   J.   J. 

180  See  Adams,  Ejectment  (3rd  Marsh.)  34.  See  Doe  d.  Wiggins- 
Ed.)  256,  and  opinion  of  Parke.  B.,  Heirs  v.  Reddick,  33  N.  C.  (11  Ired. 
In  Butler  v.  Meredith,  24  L.  J.  Law)  380;  Bryant  v.  Kinlaw.  90  N. 
Exch.  239.  C.     337;     Kennedy    v.     Campbell,    3 

190  Dimick    v.    Deringer,    32    Cal:  Brev.  Law   (S.  C.)   553. 
488;   Jackson  v.  Allen,  30  Ark.  110; 


2136 


ACTIONS  AGAINST  THIRD  PERSONS. 


356 


statutory  provision  substantially  similar  to  the  English  one  so 
providing.i^i 

The  statute  11  Geo.  2,  c.  19,  §  13,  above  referred  to,  provides 
that  if  the  tenant  fails  to  notify  the  landlord  of  an  action  of  eject- 
ment brought  against  him,  he  shall  forfeit  to  the  latter  three  years* 
rent  of  the  premises.  There  are  in  a  number  of  states  provisions 
of  a  more  or  less  similar  nature,  making  the  tenant  failing  so  to 
notify  the  landlord  liable  either  for  any  damage  or  loss  resulting 
to  the  landlord,i92  q^  for  two^^s  or  three^^^  years'  rent. 


191  AlaMma  Code  1907,  §  3844;  Illi- 
nois, Kurd's  Rev.  St.  1905,  c.  45,  §  18; 
Iowa  Code  1897,  §  4190;  New  Jersey, 
2  Gen.  St.  p.  1284,  §  17;  Michigan 
Comp.  St.  §  11198;  Missouri  Rev. 
St.  1899,  §  3057;  New  York  Code 
Civ.  Proc.  §  1503;  Oregon,  Bell.  & 
C.  Ann.  Codes,  §  327;  Pennsyl- 
vania, Pepper  &  Lewis'  Dig.  St. 
"Ejectment,"  §  3;  Tennessee,  Shan- 
non's Code  1896,  §  4973;  Virginia 
Code  1904,  §  2726.  See  Morris  v. 
Beebe,  54  Ala.  300;  McClendon  v. 
Equitable  Mortgage  Co.,  122  Ala. 
384,  25  So.  30;  Dake  v.  Sewell,  145 
Ala.  581,  39  So.  819;  State  v.  Orwig, 
34  Iowa,  112;  Chicago  &  E.  I.  R.  Co. 
V.  Clapp,  201  111.  418,  66  N.  E.  223; 
Sutton  V.  Casseleggi,  77  Mo.  397; 
Hill  V.  Atterbury,  88  Mo.  114;  Den  d. 
Vancleve  v.  Green,  20  N.  J.  Law 
(Spencer)  171;  Fosgate  v.  Herkimer 
Mfg.  &  Hydraulic  Co.,  12  N.  Y.  580; 


Godfrey  v.  Townsend,  8  How.  Pr. 
(N.  Y.)  398;  McClay  v.  Benedict,  1 
Rawle  (Pa.)  424;  Linderman  v.  Berg, 
12  Pa.  301;  Mitchell  v.  Baratta,  17 
Grat.  (Va.)  445;  Hanks  v.  Price,  32 
Grat.  (Va.)  107. 

192  Arkansas,  Kirby's  Dig.  St.  1904, 
§  4693  (no  penalty  named)  ;  Cali- 
fornia Civ.  Code,  §  1949;  Montana 
Rev.  Codes  1907,  §  5234;  North  Da- 
kota Rev.  Codes  1905,  §  5534;  South 
Dakota  Civ.  Code  1908,  §  1440. 

193  Delaware  Rev.  Code  1893,  p. 
876;  Illinois,  Hurd's  Rev.  St.  1905,  c. 
45,  §  17;  Pennsylvania,  Pepper  & 
Lewis'  Dig.  St.  "Ejectment,"  §  2. 

■i.^*  Missouri  Rev.  St.  1899,  §  4103; 
New  York,  Real  Prop.  Law,  §  195; 
Wisconsin  Rev.  St.  1898,  §  2197. 

As  to  the  effect  of  notice  to  the 
landlord  as  rendering  a  judgment 
against  the  tenant  conclusive  on 
him,  see  Black,  Judgments,  §  577. 


TABLE  OF  CASES. 


[EEFBRENCES   AP.E  TO  PAGES.] 


A. 

Abbey   Homestead    Ass'n    v.   Willard, 

474. 
Abbot   of  Sherbourne's  Case,   743. 
Abbott   V.   Blair,    394. 
V.   Bosworth,    278. 
V.  Cremartie,   464,   471. 
V.  Hanson,    874,    880,    1100,    1117. 
V.  Seventy-six     Land      &     Water 

Co.,    1682. 
V.  Smith,    1231. 
Abby  V.   Billups,   202,  764. 
Abeel  v.  Hubbell,  152,  1734. 
V.  McDonnell,   1479. 
V.  RadclifE,   1492,  1520,  1871,  1882. 
Abernathy  v.  Green,  315,   1934. 

V.  Uhlman,   1651.   1662. 
Abington   v.    Steinberg,    1952,    2092. 
Abies  V.   Abies,    190. 
Abraham  v.  Hall,  1955. 

V.   Nicrosi,    1903,    1917. 
Abrahams   v.    Tappe,    976,    1385,    1404, 

1407,  1415. 
Abrams    v.    Sheehan,    876,    976,    1108, 
1112. 
V.  Watson,    8,    19,    519,    537,    1412, 
1414,    1415,    1416,    1809,    1844, 
1845,    1848. 
Academy   of   Music   v.   Hackett,    1371. 
Accidental  Death  Ins.  Co.  v.  Macken- 
zie,  465. 
Acheson  v.  Fair,  1555. 

V.  Murray,  1343. 
Achlers  v.    Rehlenger,    527. 
Acker  v.  Witherell,   2027. 
Ackerman   v.  Hartley,   731. 

V.  Lyman,   1859,   1864,   1887. 
Ackland   v.    Lutley,    50. 
Ackley   v.   Westervelt,    195. 


Ackroyd  v.   Smith,    22. 
Acocks   V.   Phillips,    1378. 
Acorn   v.   Hill,    1244,   1245. 
Acton  V.   Symonds,   1853. 
Adair  v.   Bogle,    547,   548,   549,    550. 
Adams  V.   Adams,  1512. 
V.   Beach,     913. 
V.   Bean,    1136. 

V.   Bigelow,  414,  1074,   1078,  1163. 
V.   Bcnnefon,    262. 
V.   P-.;vke,   1329. 
V.   Burr,   1264. 
V.   Cohoes,  1429,  1437,  14S8. 
V.  Cumberland  Inn  Co.,  673. 
V.  Doelger,  281,  349. 
V.  Fletcher,  575,  688,  689. 
V.   French,  950. 
V.  Gamble,   192. 
V.   Gibney,   354,   522. 
V.  Goddard,    1350,   1600,  1622. 
V.  Grane,    2008,    2009. 
V.   La  Comb,   2027. 
V.  Leavens,   1847. 
V.  McKesson,   879,   1646. 
V.   Martin,   455. 
V.  Ore  Knob  Co.,  33. 
V.  Ross,  44. 
V.   St.  Louis  &  S.   F.  R.   Co.,  1600, 

1629. 
V.   Shirk,    486,    938,    941,    965,    989, 

1124. 
V.   Thornton,  186,  189,  1651. 
V.  TuUy,  1614. 
V.   Werner,   1230. 
Adams   &   Kensington    Vestry,    In    re. 

1689,  1690. 
Adamson  v.  Rogers,    1697. 
Aderhold  v.  Blumenthal,  1929. 
Aderholt  v.  Embry,  1092. 
Adler  v.  Kramer,    1979. 

V.  Lowenstein,   77,   82. 


2138 


TABLE  OF  CASES. 


[EBFEEENCES   AEE  TO  PAGES.] 


Adler  v.   Mendelson,   1476. 

Adoue  V.  Tanskersley,  1113. 

Adsit  V.  Kaufman,    1858. 

Ag-ar  V.  Winslow,  1263,  1286. 

Agard  v.  King-,   125. 

Agate    V.    Liowenbein,     708,    71i.     718, 

720,    722,   734,    737,   781,    820,   825. 
Agee  V.  Mayer  Bros.,  2095. 
Agerter  v.  Vandergrift,  193. 
Agne  V.   Skewis-Moen  Co.,   1965.   1967, 

1978. 
Agnew  V.  Whitney,   1609,  1611. 
Agney  v.  Strohecker,  2051. 
Ahearn  v.  Bellman,  1417,  1443,  1444. 

V.   Steele,    582,    655,    663,    698,    699, 
702. 
Ahrns    v.    Chartiers    Valley    Gas   Co., 

281,  1849. 
Aiken  v.  Appleby,  81,  1452. 

V.  Smith,  184,  186,  187,  1651,  1661. 
Aikin  v.   Perry,    579. 
Aikins  v.  Stadell,  1949. 
Ainley  v.  Balsden,  1399. 
Ainsworth  v.  Lakin,   691. 

V.  Mt.  Moriah  Lodge,  59,  97. 

V.   Ritt,  97,   1196. 

V.   Williams,   1894. 
Airey  v.  Weinstein,  1910. 
Akerly  v.  White,  652. 
Alabama  Gold  Life  Ins.  Co.  v.  Oliver, 

1113. 
Albany  v.   Cunliff,   680,  686. 
Albers  v.  Turley,  1965. 
Alberson  v.  Elk  Creek  Min.  Co.,  1564. 
Albert  v.  State,  568,  652,  655,  657. 
Albey  v.  Weingart,  547. 
Albin  V.  Parraele,  295. 
Albright  v.   Mills,    1627. 
Alchorne  v.  Gomme,  212,  2044. 
Alcorn  v.  Morgan,  265. 
Aldag  V.  Ott,  614. 
Alder  v.  Fouracre,  1556. 
Alderson  v.   Marshall,   16,  436. 

V.  Miller,   481. 
Aldin  V.    Latimer   Clark,   Muirhead   & 

Co.,  820,  1419. 
Aldis  V.  Fraser,  2076. 
Aldrich  v.  Lane,  636. 
Aldridge  v.  Feme,  850. 

V.  Howard,  1053. 

V.  Stuyvesant,  2133. 
Alexander  v.  Alexander,  208,  404,  1886. 

V.  Bishop,  549,  2129. 

V.  Bufflngton,  219. 

V.  Carew,   1737. 

V.  Dorsey,  1197,  1287. 

V.  Gardner,  29,  1009. 


Alexander  v.  Griswold,  1404. 

V.   Hodges,   1399,   1403. 

V.   Loeb,  872,  1500,  1501. 

V.  Mahon,  2019. 

V.   Mansions  Proprietary,  823,  831. 

V.   Rhodes,  594. 

V.  Tuohy,  1392,  1586,  1604. 

V.  Turner,  2033. 

V.  Westcott,  1785. 

V.  Ziegler,  189,  1661,  1665,  2001. 
Alfo  V.  Henning,  1025. 
Alford  V.  Carver,  419. 

V.   Cobb,  965. 

V.  Vickery,  1438,  1458,  1462. 
Alger    V.     Kennedy,    268,     1099,     1158, 

1159,   1228,    1272,   1279. 
Algonquin   Coal  Co.   v.  Northern  Coal 

&  Iron  Co.,   31. 
Allaire  v.    Whitney,   1845. 
Allan  V.  Overseers  of  Liverpool,  34. 
Allcock  V.  Moorhouse,   874,  881,   885. 
Allegany  Oil   Co.  v.   Bradford  Oil  Co., 

1370.  1403. 
Alleman  v.  Vink,  1478. 
Allen,  In  re,  1544. 
Allen  v.  Agnew,  2014. 

V.  Anthony,   866. 

V.   Bartlett,   243,  1483,   1488,  1489. 

V.   Bennett,  930. 

V.  Brown,  1350. 

V.   Brunner,    1907. 

V.  Bryan,     881,     1100,    1107,     1110, 
1820,  1830. 

V.   Carpenter,  329,  1434. 

V.   Culver,   584,    759,    779,   894,   952, 
1144.  1669. 

v.   Dent,  855,  1373,  1395. 

v.   Elderkin,  1646. 

v.   Fisher,  759. 

v.   Gates,  1598,   1705,   1713. 

V.  Griffin,  468. 

v.  Hall,  441,  494,  1100,  1107. 

V.  Herman,  1138. 

V.  Hill,   143,  152. 

v.   Hinton,  1533. 

v.  Houston    Ice    &    Brewing    Co., 
1904,   1977. 

V.  Hubert,  1146. 

V.  Jaquish,  1316,  1318,  1320,  1419. 

V.   Keilly,  303. 

V.  Kelly,  1508. 

V.   Kennedy,    1573,   1586. 

V.  Koepvel,   1009. 

V.   Man.?fleld.    113,   1693. 

V.  Paul,  16.  17. 

V.   Pell.   1238. 

v.   St.    Louis,    I.    M.    &    S.    it    Co., 
1052. 


TABLE  OF  CASES. 


2139 


[RBFBBBNCBS 

Allen   V.   Saunders,   1851. 
V.   Shannon,    1721,  1790. 
V.   Smith,    1780. 
V.  Thayer,   1858. 
V.  Van  Houton,  1073. 
V.  Webster,  1737. 
V.  Wooley,  869,  1109. 
AUenspach  v.   Wagner,   80,   888. 
Allhusen  v.   Brooking.  373. 
Allison  V.   Casey,    481. 

V.   Thompson,  1746. 
Allread  v.   Harris,    1718,   1727. 
Allum   V.   Dickinson,    850. 
Almand  v.  Scott,  185. 
Almy   V.    Green,    303,    964,    1124,    1141, 

1361. 
Alschuler    v.     Schiff,     362,     363,     1309, 

1317. 
Alsheimer  v.  Krohn,  1224. 
Alston  V.  Scales,  2098. 

V.   Wilson,    1918,    1919,    1936. 
Alsup   V.    Banks,    100,    353,    1132,    1171, 

1339. 
Alt  V.  Gray,  1886. 
Altsheler  v.   Conrad,   583. 
Alway  V.  Anderson,  2017. 
Alwood  V.  Mansfield,  446,  2050. 

V.  Ruckman,     39,     184,     189,     1661, 
1654. 
Alworth    V.     Gordon,    133,     152,     1442, 

1443,  1459,  1733,  1777. 
Ambrose  v.  Fraser,  893. 
V.   Hyde,    1494,    1889. 
Ambs   V.   Hill,   1576. 
American      Academy      of      Music      v. 

Smith,   990. 
American    Bicycle   Co.    v.    Hoyt,    1209. 
American  Bonding  Co.  v.  Pueblo  Inv. 

Co.,   855,   1142,   1167,   1168,  1348. 
American  Cotton  Co.  v.  Phillips,  1932. 
American     Exchange     Nat.     Bank     v. 

Swope,   622. 
American    Freehold    Land    Mortgage 

Co.   V.   Turner,    410,    412,    417,    878. 
American   Mortgage    Co.   v.   Simmons, 

320. 
American  Must   Co.  v.  Hendry,   2054. 
American    Sav.    Bank   v.    Shaver   Car- 
riage Co.,   361. 
American    Security    &    Trust    Co.    v. 

Walker,   1540. 
American  Straw  Board  Co.  v.  Halde- 
man    Paper    Co.,     809,     1688. 
V.  Peoria    Strawboard    Co.,    302. 
American    Union    Tel.    Co.    v.    Union 
Pac.  R.  Co.,  203. 


ABB  TO  PAGES.] 

American    &    General    Mort.    &    Inv. 

Co.  V.  Marquam,  1137. 
Americus  Mfg.   &   Imp.   Co.    v.  High- 
tower,  1345. 
Ames  V.   Trenton   Brewing  Co.,   1610. 
Amick  V.   Brubaker,   107,  1358,   1425. 
Ammidown  v.  Granite  Bank,    817. 
Amory     v.     Kannoffsky,     1126,     1167, 
1334,    1344,    1345,  1346,   1348. 
V.  Melvin,    852. 
Amsden    v.    Atwood,    241,    1277,    1483, 
1489. 
V.  Blaisdell,    118,    126,    243,    1404, 

1422,   1490. 
v.   Floyd,   118,  126,  243,   1404,  1422, 
1490. 
Amter  v.  Conlon,  1009. 
Anders  v.  Blount,  2069,  2075. 
Anderson,  Appeal  of,   1249,  2039. 
Anderson    v.    Ammonett,     1702,     1705, 
1712. 
v.  Anderson,   262,  439.  502. 
v.   Brewster,   1433. 
V.  Brinser,   866. 
V.  Caulfleld,  705. 
V.  Chicago    Marine    &    Fire    Ins. 

Co.,   1161. 
V.  Conner,   286,   287,   865,   866. 
v.  Cowan,    715. 

v.   Critcher,  279,  282,   352,   1894. 
V.   Dickie,   9,    687. 
v.   Hammon,    294,    785. 
V.  Happier,    1624. 
V.  Harris,   283. 
V.  Hayes,   563,    650,   653,    634. 
V.  Hebbard,   56,   81. 
V.  Henry,    1901,    1926,   2052. 
V.  Listen,   184,    1967. 
V.  Midland  R.  Co.,   1990. 
V.   Miller,    720,    735,    742,    798,    804. 

810,    811. 
V.  Oppenheimer,  523,  537,  647. 
V.   Prindle,  133,  134,  244,  381,  1429, 

1440,   1727. 
V.  Robbins,     412,     414,     415,     1071, 

1073,    1074,   1891. 
V.  Smith,   483. 
V.  Strauss,    322,    1646. 
V.   Tighe,    1160. 
V.   Winton,    290,    1161. 
Anderson  &  Co.  v.  Bowles,   193«,  1955, 

1961,  1962,   1964. 
Andis  v.  Personett,  1892. 
Andre  v.  Graebner,   1309,  1324. 
Andrew  v.   Hancock.   842,  1088. 
V.  Newcomb,    1976. 
v.   Stewart,  1918,   1919,  1923,   1924. 


2140 


TABLE  OF  CASES. 


[REFERENCES    AHE  TO  PAGES.] 


Andrews    v.     Day     Button     Co.,     750, 
1573.   1576,    1611. 

V.  Dixon,  1252. 

V.   Erwln,   1371,   1746,  1753. 

V.  Jones,   748,    2086. 

V.  Marshall    Creamery    Co.,    1517, 
1526,    1535,    1536. 

V.  Mlnter.  548. 

V.  Needham,   1300. 

V.  Paradise,  531. 

V.  Williamson,    634. 

V.  Woodcock,  1147. 
Andrews'   Case,    518,    526. 
Andrews    Mfg.    Co.    v.    Porter,    1906, 

1928,    1931,    1937,    1949. 
Andriot   v.   Lav/rence,   443. 
Andrus  v.   Bradley-Alderson  Co.,   790. 
Angell  V.  Duke,  365. 

V.  Harrison,   2026. 
Anglehart  v.  Rathier,  2088. 
Ankeny   v.  Pierce,   444. 
Anonymous  v.    Cooper,    1989. 

V.  Dyer,   90. 
Ansley  v.   Longmire,   499. 
Antliony  v.  New  York  P.  &  B.  R.  Co., 

282,  2102. 
Antone  v.   Miles,  1655,   1947. 
Antoni  v.  Belknap,  1574,   1588. 
Antonio    v.    French,    1472. 
Anzolone   v.  Paskusz,   289,   1178,   1980. 
Appleton  V.  Ames,  99,  114,  1425. 

V.  Buskirk,    105. 

V.  Campbell,    302. 

V.   Marx,   754,   768,   770. 

V.   O'Donnell,    267,    1894. 
Appleton   Waterworks  Co.    v.    Apple- 
ton,  1490. 
Applewhite  v.   Nelms,   1918. 
Appling  V.  Odom,  38,   39. 
Appold,    In    re,    1900. 
Arbenz  v.  Exley,  Watkins  &  Co.,   106, 
126,     243,     247,     248,     255,     277,     617, 
1172,  1191.  1237,  1238,   1437,  1448. 
Arbuckle  v.   Biederman,   561. 

V.  Nelms,  1927. 
Arcade   Inv.  Co.   v.  Gieriet,    1462. 
Arcade   Realty   Co.   v.    Tunney,    396. 
Arden  v.  Pullen,   574. 

v.   Sullivan,   126. 
Ardesco    Oil    Co.    v.   North    American 
Oil  &  Min.   Co.,   201,    360. 

v.  Richardson.    755. 
Ards   V.  Watkin,    881,    902,    1066,    1100, 

1107,   1110,    1820,    1830. 
Ardsley  Hall  Co.  v.  Sirrett,  1242,  1270. 
Argent  v.  Durrant,  1506. 
Argles  V.  McMath,   1607. 


Argo  V.   Fields,  1959. 

Arguelles  v.    Wood,   1081. 

Argus  V.   Wesson,   1629. 

Arkell  Pub.  Co.,  In  re.   1163. 

Armory   Board,  In  re,  206. 

Armour    Packing    Co.    v.    Des    Moines 

Pork   Co.,    1167,    1336. 
Armstrong  v.  Bicknell,  186,   187,  1651. 

V.   Crilly,  269,  270. 

V.  Cummings,      1021,      1102,     1718, 
1756,   1894,   1895. 

V.   Kattenhorn,    261. 

V.  Maybee,  742,   744,  759,   764,  777, 
952. 

V.  Warner,    1847. 

V.   Wheeler,   950. 

V.  Wilson,    712,   731. 
Arneson  v.  Spawn,  2101,  2114,    2117. 
Arnitt  v.  Garnett,   1252,  1253,  1254. 
Arnold  v.   Clark,  566,   593,   594. 

V.  Hewitt.    1934. 

V.   Nash.  116,  1433. 

V.  Rothschild's      Sons      Co.,      372, 
376,    379. 

V.  White,    810. 

V.  Woodward,   437,   458,   464,   467. 
Amot  V.   Alexander,    1521,    1552,    1553. 
Arnsby     v.      Woodward,      1369,     1385, 

1387,    1401. 
Arnstein,    In   re,    94,    1189. 
Aronson   v.   Oppegard,  1978. 
Arrison   v.   Harmstead,   1864. 
Arthur  v.   Harty,  850. 
Asbyll  V.   Haims,  1S14. 
Ascarete  v.   Pfaff,   962,   1125. 
Aschenbach  v.  Keene,   646. 
Ascough's   Case,    1067. 
Ash   V.  Purnell,    1790,    1813,   1814. 
Ashbell  V.  Tipton,  2050,  2087. 
Ashbrook  v.  Dale.   302,   303. 
Ashbury,   Ex  parte,  1563. 
Ashby   V.    Ashby,   758.    1576. 

V.   Wilson,   829. 
Ashcrofl  V.    Bourne,    1362. 
Asher  V.    Johnson,    29. 
Asheville  Woodworking  Co.  v.  South- 
wick,  1571,  1573. 
Ashfleld   V.    Ashfield,    196. 
Ashford  v.  Hack,  995. 

V.  McNaughten,  323,  2135. 
Ashhurst     v.     Eastern     Pennsylvania 

Phonograph   Co.,    1419,   1543. 
Ashley  v.  Warner,  118,  539,  1293,  1425. 

V.  Wilson.  2133. 

V.  Young,   213,    1001. 
Ashmead  v.   Ranger,   11. 


TABLE  OP  CASES. 


2141 


[REFERENCES 

Ashmore  v.  Hardy,   2026. 

Ashton    V.   Golden   Gate  Lumber   Co., 

515. 
Aslin   V.  Parkin,    146. 
Astbury,   Ex    parte,    1583. 
Astor  V.  Hoyt,  853,  971,  976,  977,  1129. 
V.  L'Amoreux,  903,  972,  992. 
V.  Lent,  972. 
V.  Miller,   1129. 
Astry  V.  Ballard,   709,   853. 
Asylum  for   Female  Orphans  v.   Wa- 
terloo, 394. 
Atchinson  v.   Orr,    42. 
Atchison,  T.   &   S.   P.   R.    Co.   v.  Mor- 
gan,  1564. 
Athowe  V.  Heming,   882. 
Atkins    V.    Byrnes,    1081,     2032,    2033, 
2039. 
V.  Chilson,    730,     750,    1393,     1394, 

1414. 
V.  Humphrey,    1874,    1875.    1882. 
V.  Sleeper,    51. 
V.  Wilcox,    96,   1189,   1190. 
V.  Womeldorf,    1662,    1936. 
Atkinson  v.  Beard,  769. 
V.   Cole,    1490. 
V.   Cox,   1092. 
V.  Dixon,    1603. 
V.  James,    1929,    1930,    1933,    1951, 

1964. 
V.  Lester,    1790. 
V.  Winters,    1854,   1871. 
Atlanta    K.    &    N.    R.    Co.    v.    McHan, 

1859. 
Atlantic   Dock  Co.  v.  Leavitt,    347. 
Atlantic  Nat.   Bank  v.  Demmon,   1527. 
Atlantic    Product   Co.    v.    Dunn,    1532, 

1681.    1682. 
Attack  V.  Bramwell,  2055,   2080,   2084, 

2085,    2088. 
Attalla  Min.  &  Mfg.  Co.  v.   Winches- 
ter.  1387. 
Attaway   v.   Hoskinson,    1971. 
Attersol    v.     Stevens,    738,    739,     1054, 

2100,  2102. 
Attoe  V.  Hemmings,   882,  903,  1025. 
Attorney  General  v.    Andrew,    143. 
V.  Backhouse,  409. 
V.  Baliol   College,   1694. 
V.   Cox,    1168. 

V.  Mayor  of  Rochester,   211. 
V.  Playhouse,   750. 
Atwill  V.  Blatz,  695,  790. 
Atwood  V.  Norton,   230. 
Auer  V.  Hoffman,   1338,   1343. 
V.  Penn,    1171,  1337,    1338. 
V.  Vahl,  557,   1239. 


ARE  TO  PAGBS.] 

Auginbaugh     v.     Coppenheffer,      785, 

786. 
Aull  Sav.  Bank  v.  Aull's  Adm'r,  1857. 
Ault    Woodenware    Co.    v.    Baker,    37. 
Aurand  v.  Wilt,   495. 
Auriol  V.  Mills,   960,    1123,   1821. 
Austin  V.  Ahearne,  181,  406,  423,  1879, 
1880. 

V.  Cambridgeport   Parish,    210. 

V.   Field,  1196,   1218. 

V.  Hudson  River  R.  Co..  738,  2102. 

V.  Huntsville    Coal    &    Min.    Co., 
33,    291. 

V.   Kimball,  9,  2134. 

V.  Moyle,    783. 

V.  Newham,    1520. 

V.  O'Reilly,    1900. 

V.  Strong,   1290. 

V.  Thompson,    117,    139,    141,    908, 
922,    960,   1133. 

V.  Welch,    1927,    1935. 

v.  Wilson,    315. 
Auworth   V.    Johnson,   746. 
Auxvasse  Milling  Co.  v.  Cornet,  1953. 
Aveline  v.  Ridenbaugh,  927. 
Avenell  v.  Croker,   2082. 
Avera  v.    McNeill,    1092. 
Averill  v.  Sawyer,   364,   365. 

v.   Taylor,  46,  159,   373. 
Avery  v.  Cheslyn,  1578,  1579. 

v.  Dougherty,   528,   1845. 

v.  N.  T.  Cent.  R.  Co.,  815. 

v.  Smith,    1718. 
Aycock  V.   Raleigh   &  A   Air  Line  R. 

Co.,    2098. 
Aydlett  v.  Pendleton,  59,  76,  77,  80.  81. 
Aye  V.  Philadelphia  Co.,  1333. 
Aylet  V.  Williams,  431,   444. 
Ayotte  V.   Johnson,   437,    1840. 
Ayres  v.  Depras,  1248,  2019. 

V.  Draper,   1444. 


B. 

Babbage  v.  Powers,  689. 
Babcock  v.  Albee.  1420,  1464. 

v.  Hunt,    860. 

V.   Kennedy,   1121. 

V.  Scoville,     918,     975,     986,     1127, 
1129. 
Baber  v.  Harris,   965. 
Babley  v.  Vyse,   2099. 
Bach  V.  Meats.  2027. 


2140 


TABLE  OF  CASES. 


[REFERENCES    ARE  TO  PAGES.] 

Andrews    v.     Day     Button     Co.,     750, 
1573.  1576,   1611. 
V.  Dixon,  1252. 
V.   Erwln,   1371,   1746,  1753. 
V.  Jones,   748,   2086. 
V.  Marshall    Creamery    Co.,    1517, 

1526,    1535,    1536. 
V.  Minter,  548. 
V.  Needham,   1300. 
V.  Paradise,   531. 
V.  Williamson,    634. 
V.   Woodcock,   1147. 
Andrews'   Case,    518,    526. 
Andrews    Mfg.    Co.    v.    Porter,    1906, 

1928,    1931,    1937,    1949. 
Andriot   v.  Lawrence,   443. 
Andrus  v.   Bradley-Alderson  Co.,   790. 
Angell  v.  Duke,  365. 

V.  Harrison,   2026. 
Anglehart  v.  Rathier.   2088. 
Ankeny   v.   Pierce,   444. 
Anonymous   v.    Cooper,    1989. 

V.   Dyer,   90. 
Ansley  v.   Longmire,   499. 
Anthony  v.  New  York  P.  &  B.  R.  Co., 

282,  2102. 
Antone  v.  Miles,  1655,  1947. 
Antoni  v.  Belknap,   1574,  1588. 
Antonio    v.    French,    1472. 
Anzolone   v.   Paskusz,   289,   1178,   1980. 
Appleton  V.  Ames,  99,  114,  1425. 
V.  Buskirk,    105. 
V.  Campbell,    302. 
V.  Marx,   754,  768,   770. 
V.   O'Donnell,   267,    1894. 
Appleton    Waterworks   Co.    v.    Apple- 
ton,   1490. 
Applewhite  v.   Nelms,   1918. 
Appling  V.  Odom,  38,   39. 
Appold,    In    re,    1900. 
Arbenz  v.  Exley,  Watkins  &  Co.,   106, 
126,     243,     247,     248,     255,     277,     617, 
1172,   1191,  1237,   1238,    1437,  1448. 
Arbuckle   v.    Biederman,    561. 

V.  Nelms,  1927. 
Arcade   Inv.  Co.   v.  Gieriet,    1462. 
Arcade  Realty  Co.  v.   Tunney,   396. 
Arden  v.  Pullen,  574. 

v.   Sullivan,   126. 
Ardesoo    Oil    Co.    v.   North    American 
Oil  &  Min.   Co.,   201,   360. 
V.  Richardson.   755. 
Ards   V.   Watkin,    881,    902,    1066,   1100, 

1107,    1110,    1820,    1830. 
Ardsley  Hall  Co.  v.  Sirrett,  1242,  1270. 
Argent  v.  Durrant,  1506. 
Argles  V.  McMath,  1607. 


Argo  V.  Fields,  1959. 

Arguellea  v.    Wood,   1081. 

Argus  V.   Wesson,  1629. 

Arkell  Pub.  Co.,  In  re,   1163. 

Armory   Board,  In  re,   206. 

Armour    Packing    Co.    v.    Des    Moines 

Pork   Co.,    1167,    1336. 
Armstrong  v.  Bicknell,  186,   187,  1651. 
V.   Crilly,  269,  270. 
V.  Cummings,      1021,      1102,     1718, 

1756,   1894,   1895. 
V.   Kattenhorn,    261. 
V.  Maybee,  742,   744,  759,   764,  777, 

952. 
V.   Warner,    1847. 
V.   Wheeler,  950. 
V.  Wilson,    712,   731. 
Arneson  v.  Spawn.  2101,  2114,    2117. 
Arnitt  v.  Garnett,   1252,  1253,  1254. 
Arnold  v.   Clark,   566,   593,  594. 
V.  Hewitt,    1934. 
V.   Nash,  116,  1433. 
V.  Rothschild's      Sons     Co.,      372, 

376,    379. 
V.  White,    810. 

V.  Woodward,    437,   458,   464,   467. 
Amot  V.   Alexander,    1521,    1552,    1553. 
Arnsby     v.      Woodward,      1369,     1385, 

1387,   1401. 
Arnstein,    In   re,    94,    1189. 
Aronson   v.   Oppegard,   1978. 
Arrison   v.   Harmstead,   1864. 
Arthur  v.   Harty,  850. 
A.sbyll  V.   Haims,  1814. 
Ascarete  v.   Pfaff,    962,   1125. 
Aschenbach  v.  Keene,   646. 
Ascough's  Case,    1067. 
Ash  V.  Purnell,    1790,   1813,   1814. 
Ashbell  V.  Tipton,  2050,  2087. 
Ashbrook  v.  Dale,   302,   303. 
Ashbury,   Ex  parte,  1563. 
Ashby   V.    Ashby,   758,    1576. 

V.   Wilson,   829. 
Ashcroft   V.    Bourne,    1362. 
Asher  v.   Johnson,   29. 
Asheville  Woodworking  Co.  v.  South- 
wick,  1571,  1573. 
Ashfield   V.    Ashfield,   196. 
Ashford  v.  Hack,  995. 

V.  McNaughten,  323,   2135. 
Ashhurst    v.     Eastern     Pennsylvania 

Phonograph   Co.,    1419,   1543. 
Ashley  v.  Warner,  118,  539,  1293,  1425. 
V.  Wilson,  2133. 
V.  Young,    213,    1001. 
Ashmead  v.  Ranger.   11. 


TABLE  OP  CASES. 


2141 


[KEFBKENCES    ARE  TO  PAGBS.] 

Ashmore  v.  Hardy,   2026. 

Ashton    V.   Golden   Gate   Lumber   Co., 

515. 
Aslln  V.  Parkin,   146. 
Astbury,  Ex   parte,    1583. 
Astor  V.  Hoyt,  853,  971,  976,  977,  1129. 
V,  L.'Amoreux,  903,  972,  992. 
V.   Lent,  972. 
V.  Miller,   1129. 
Astry  V.  Ballard,   709,   853. 
Asylum  for  Female  Orphans  v.   Wa- 
terloo, 394. 
Atchinson  v.   Orr,    42. 
Atchison,   T.   &   S.   P.   R.   Co.  v.  Mor- 
gan,  1564. 
Athowe  V.  Heming,   882. 
Atkins    V.    Byrnes,    1081,     2032,    2033, 
2039. 
V.  Chilson,    730,    750,    1393,     1394, 

1414. 
V.  Humphrey,    1874,    1875,    1882. 
V.   Sleeper,    51. 
V.  Wilcox,    96,   1189,   1190. 
V.  Womeldorf,    1662,    1936. 
Atkinson  v.  Beard,  769. 
V.   Cole,    1490. 
V.   Cox,   1092. 
V.  Dixon,    1603. 
V.  James,    1929,    1930,    1933,    1951, 

1964. 
V.  Lester,   1790. 
V.  Winters,    1854,   1871. 
Atlanta    K.    &    N.    R.    Co.    v.    McHan, 

1859. 
Atlantic  Dock  Co.  v.  Leavitt,   347. 
Atlantic  Nat.  Bank  v.  Demmon,   1527. 
Atlantic    Product   Co.    v.    Dunn,    1532, 

1681,    1682. 
Attack  V.  Bramwell,  2055,   2080,   2084, 

2085,    2088. 
Attalla  Min.  &  Mfg.  Co.  v.  Winches- 
ter,  1387. 
Attaway   v.   Hoskinson,    1971. 
Attersol    v.     Stevens,    738,    739,     1054, 

2100,  2102. 
Attoe  V.  Hemmings,  882,  903,  1025. 
Attorney  General  v.   Andrew,    143. 
V.  Backhouse,  409. 
V.  Baliol  College,  1694. 
V.  Cox,    1168. 

V.  Mayor  of  Rochester,   211. 
V.  Playhouse,   750. 
At-will  V.  Blatz,  695,  790. 
Atwood  V.  Norton,   230. 
Auer  V.  Hoffman,   1338,   1343. 
V.  Penn,    1171,  1337,   1338. 
V.  Vahl,  557.   1239. 


Auginbaugh     v.     Coppenheffer,      785, 

786. 
Aull  Sav.  Bank  v.  Aull's  Adm'r,  1857. 
Ault    Woodenware    Co.    v.    Baker,    37. 
Aurand  v.  Wilt,    495. 
Auriol   V.  Mills,   960,    1123.   1821. 
Austin  V.  Ahearne,  181,  406,  423,  1879, 
1880. 

V.  Cambridgeport  Parish,    210. 

V.   Field,  1196,   1218. 

V.  Hudson  River  R.  Co..  738,  2102. 

V.  Huntsville    Coal    &    Min.    Co., 
33,    291. 

V.  Kimball,  9,  2134. 

V.  Moyle,    783. 

V.   Newham,    1520. 

V.  O'Reilly,   1900. 

V.   Strong,   1290. 

V.  Thompson,    117,    139,    141,    908, 
922,    960,   1133. 

V.  Welch,    1927,    1935. 

V.   Wilson,    315. 
Auworth   V.   Johnson,   746. 
Auxvasse  Milling  Co.  v.  Cornet,  1953. 
Aveline  v.  Ridenbaugh,  927. 
Avenell  v.   Croker,   2082. 
Avera  v.    McNeill,    1092. 
Averill  v.  Sawyer,  364,   365. 

V.   Taylor,  46,   159,   373. 
Avery  v.  Cheslyn,  1578,  1579. 

V.  Dougherty,   528,   1845. 

V.  N.  Y.  Cent.  R.  Co..  815. 

v.  Smith,    1718. 
Aycock  V.  Raleigh   &  A.   Air  Line  R. 

Co.,    2098. 
Aydlett  v.  Pendleton,  59,  76,  77,  80,  81. 
Aye  V.  Philadelphia  Co.,  1333. 
Aylet  V.  Williams,  431,   444. 
Ayotte  V.   Johnson,   437,   1840. 
Ayres  v.  Depras,  1248,  2019. 

V.  Draper,   1444. 


B. 

Babbage  v.  Powers,  689. 
Babcock  v.   Albee,  1420,  1464. 

V.  Hunt,    860. 

V.   Kennedy,  1121. 

V.  Scoville,     918,     975,     986,     1127, 
1129. 
Baber  v.  Harris,   965. 
Babley  v.  Vyse,   2099. 
Bach  V.  Meats,  2027. 


2142 


TABLE  OF  CASES. 


[REFEKENCES    ARK  TO  PAGES.] 

Gage,     962,     9G3.     1033, 


Bachelour    v 

1330. 
Bachert  v.   Lehigh   Coal   &  Nav.   Co., 

19,    813. 
Backus  V.   Steinberg,   1483. 
Bacon    v.    Albany    Perforated    Wrap- 
ping Paper  Co.,   1207. 

V.  Bowdoln,  373,  376. 

V.  Brown,    1345,    1469,    1475,    1478, 
1492. 

V.  Carr,   1921. 

V.   Howell,   314,   315,   1934. 

V.   Park,   1374,  1415. 

V.   Parker.  390,  1883. 

V.  Smith,    732,    733. 

V.   Western    Furniture    Co.,    1378, 
1379,   1391. 
Badeau   v.   Tylee,    1S28. 
Badeley   v.   Vigurs,    92,    771,    902. 
Badger    v.    Batavia    Paper    Mfg.    Co., 
273. 

V.  Holmes,    1879,   1880. 
Badger   Lumber   Co.    v.    Malone,    164. 
Baer  v.   Minock,   266. 
Eagge  V.   Mawby,   203  4,    2035. 
Bagley  v.    Sternberg,    1740. 
Bagot  V.    Bagot,    710. 
Bagshawe  v.  Goward,  9,   2061. 
Bagshawes,   Limited  v.   Deacon,    2021, 

2071. 
Bagwell  V.   Jamison,   2042,    2053,   2090. 
Bailey,  In  re,   2008. 
Bailey   v.   Colby,    920,    921,    1671,    1874. 

V.  Delaplaine,     1344,     1345,     1346. 

V.   Fillebrown,    1974. 

V.  Jackson,  1049,   1080. 

V.   Moore,  174,  178. 

V.   Richardson,    99,    888,    893,    1702. 

V.  Wells,    962,    1124,    1150. 

V.  Wright,   1081,   1082,    2038. 
Bailey's  Adm'r  v.  Campbell,   168,  463. 
Bailie  v.  Plant,  1531. 

V.   Rodway,    888,    893. 
Bally  V.  De  Crespigny,   931. 
Bain  v.   Brand.    1563,    1581. 

V.  Clark,   1169,   1348,  1636. 

V.   Fothergill,    393. 

V.  McDonald,    230,   255. 

V.  Wells,    1919. 
Bainter  v.  Lawson,  2070. 
Baird  v.   Evans,   1237. 

V.  Milford   Land    &    Lumber    Co., 
1047. 

V.  Shipman,    651. 
Baker  v.  Adams,  86,  1019. 

V.  Allen,    675,    679,   696,   699. 

V.  Atkinson,    1996. 


Baker    v.    Burton,    1085,    2041. 

V.   Clancy,   1173. 

V.   Cotney,   1917,    1940,    1960. 

V.  Fawcett,    295,    561. 

V.   Gittings,    307. 

V.  Gortatowsky,  1760. 

V.   Goatling,   913. 

V.   Greenhill,    842. 

V.   Hale,    4523. 

V.  Hart,   30.   31,    738. 

V.   Holtzapffel,    1191,    1192,    1892. 

V.   Jeffers,   2029. 

V.   Kenny,    1429,    1452,    1481,    1483. 

V.   McClurg,  1567,  1568,  1572,  1573, 
1577,    1589,    1593. 

V.   Mclnturff,    1640. 

V.   Maier  &  Zobelein  Brewery,  973. 

V.  National  Biscuit  Co.,   1625. 

V.   Sanderson,      2114,     2116,     2117, 
2122,   2127. 
Baldwin  v.  Burd,  470. 

V.   Foster,  451. 

V.  Morgan,   272. 

V.   Pool,    312. 

V.   Richardson,   2124. 

V.  Skeels,   1803. 

V.   Thibadeau,  45,  1176,  1813,  1814. 

V.  Walker,  282,  283,  885,  888,1823. 

V.  Wanzer,    1385. 
Bales  V.  Gilbert,    1707. 
Ball  V.  Canada  Co.,   1680. 

V.  Chadwick,  491,    1736. 

V.   Cullimore,   112,    116. 

V.  First  Nat.   Bank  of  Covington, 
1118,   1120. 

V.   Lively,  480. 

V.   Peck.   1481,   1749,    1751. 

V.  Sledge,   1736,   1931,   1951. 

V.   Wyeth,   289,   759. 
Ballance    v.    Fortier,    178,     489,    1739, 
1790. 

V.   Peoria,   268,   271,  486,   487,  1467. 
Ballard  v.  Demmon,  2113. 

V.  Johnson,   1906,    1907,   1916. 

V.  Mayfield,   1924. 

V.  Stephens,    1958,    2094. 
Ballentine  v.   Greer,  1961. 

V.  McDowell,    1864. 
Balles  V.  Dolch,   15. 
Ballou    V.    Baxter,    1345. 

V.   Jones,   1621. 

V.  Orr,    965. 
Ballow   V.   Motheral,   320. 
Balls  V.  Westwood,   514,   515. 
Bally  V.   Wells,   893,   937. 
Baltimore   v.    Latrobe,    1183,    1184. 

V.  Peat,   993,   995. 


TABLE  OF  CASES. 


2143 


[references  are  to  paoes.] 
EJaltimore  v.  White,   1384,  1385. 


Baltimore     Dental     Ass'n     v.     Fuller, 

1427,  1444,  1455,  1183,   1488. 
Baltimore,    etc.,    R.    Co.    v.    Hackett, 

2125. 
Baltimore    &    Ohio    R.    Co.    v.    West, 
106,    242,    243,    282,    283,   1478, 
1483,     1484. 
V.  Winslow,    275. 
Bamford  v.   Creasy,  1410,  1412. 
Bamman  v.   Binzen,   1541. 
Ban  V.  Clark,   1996. 
Banbury    v.    Sherin,    1481,   1485. 
Bancroft  v.  Godwin,   608,  615. 

V.   Wardwell,   1867. 
Bandlow   v.   Thieme,   707. 
Bandy   v.    Cartwright,    519,    520,    540. 
l^anfey  v.  Congdon,   1434. 
Bank     of    Louisville     v.     Baumeister, 

1677. 
Bank  of  Montreal  v.   Gilchrist,    484. 
Bank  of  Pennsylvania   v.   Wise,   1010, 

1065,   1071,    1073,    1074,    1117,    1249. 
Bank  of  Troy  v.  Hedorn,   1849. 
Banker  v.   Braker,    1325. 
Banks  V.   Busey,  2076. 

V.  Haskie,  1523,  1534. 

v.  WTiite,  1201. 
Banner,  In  re,   1979,   1980. 
Bannister  v.  Hyde,   2055,  2071. 
Bannon  v.  Mitchell,    2100,    2117. 
Bantjo  V.  Clark,  1463. 
Bantleon  v.  Smith,  1899,  2032,  2037. 
Barbee  v.  Greenberg,   1517,   1548. 

V.  Shannon,  2101. 
Barber  v.  Brown,   1098. 

V.  Darner,  1823. 

V.  Lefavour,  1174. 

V.  Marble,    1966. 

V.   Stone,   1391,    1768. 
Barclay  v.  Pickler,  1181,  1182. 

V.   Steamship  Co.,    887,    1548. 
Bard  v.  Elston,  261,   262,   263. 
liardsley's  Appeal,    1866. 
Barff  V.   Probyn,   1586. 
Barge  v.  Schiek,   1548. 
Bargent  v.  Thomson,  1410,  1412. 
Barhydt    V.    Burgess,    962,    1125,    1146. 
Baringer  v.   Evenson.   1565,  1597. 
Barker  v.   Barker,   10. 

V.   Brick  Co.,  1570. 

V.  Darner,     «82,     987,     1127,     1821, 
1823. 

V.  Keat,    290. 

V.   Richardson,    2112. 

v.  Walbridge,   1766. 
Barkley  v.   McCue,  1168,   1337. 


Barkman  v.  Barkman,  460,   471. 
Barlow  v.  Dahm,  448. 

v.   Jones,    2014. 

V.   Wainwright.  140,   241,   255,  256, 
1171,    1333,    1427,    1893. 
Barium  v.    Berger,    217,    1452,   1483. 
Barman  v.  Spencer,  608,  609,  629.  632, 

660. 
Barnaby  Co.  v.   .Johnston.  136. 
Barnard  v.   Godscall,   962,  963. 
Barnes,  Ex  parte,  1921. 
Barnes  v.  Bellamy,  1296. 

v.   Black  Diamond  Coal  Co.,   1851. 

V.  Northern    Trust    Co.,    870,    874, 
962. 

V.  Shinholster,      308,      310,      1857, 
1867,    1868. 

V.     Wilson,   519,   527,  537,   1302. 
Barnett  v.  Barnes,  1058. 

V.   Feary,    1495,    1528,    1804,    1805. 

V.   Guildford,   140,   146,  1121. 

v.  Warren,  1922,   1928,   1961. 
Barnewell  v.  Stephens,  1355. 
Barney  v.   Keith,  58,   518. 
Barneycastle  v.  Walker,  7,  518. 
Barnfather  v.  Jordan,  988. 
Barnhart  v.  Boyce,  604,  760,   775. 

V.  Greenshields,    865,   866. 
Barnitz  v.   Reddington,   1067,   1174. 
Barnsdall  v.  Boley,  264. 
Barnum     v.-     Fitzpatriok,     1286.    1288, 
1305,    1767,    1768. 

V.  Keeler,   1767. 

V.  Landon,  282,  406. 
Barr  v.   Bimford,   907. 

V.   Kimball,   295,   299,   561,   1845. 

V.  New  York,   L.   E.   &  W.  R.  Co., 
299. 
Barragiano  v.  Villani,  82,  275. 
Barrett  v.   Bell,   818. 

V.  Bemelmans,    1086. 

V.   Blagrave,    812. 

V.   Boddie,    1140,    1233,    1259,    1262, 
1263. 

V.  Cocke,  218. 

V.  Cox,  246,   247. 

V.  Geisinger,    865. 

V.   Johnson,   57,  265,   289,    314,    316. 

V.  Lake    Ontario   Beach   Imp.    Co., 
657. 

V.  Merchants  Bank,   82. 

V.  Rolph,   913. 

V.   Trainor,   870,   956. 
Barrington,  In  re,   737. 
Barrington  v.  Justice,   789. 
Barroilhet  v.  Battelle.  970,  1967,  1969. 
Barron  v.  Liedloff,   595,    661. 


21U 


TABLE  OF  CASES. 


[HEFEHENCES    ABE  TO  PAGES.] 


Barron   v.   Marsh,    1855,   1857,   1887. 
Barrow    v.     Isaacs,     934,     1366,     1367, 

1409,   1412. 
Barry    v.    Ryan,    1802. 
Barson   v.   Mulligan,   322,    464,   1501. 
Barth  v.   Jones,   1098. 
Bartholomew  v.  Chapin,  1806. 

V.  Derby   Rubber   Co.,    202. 
Bartlett  v.  Amberg,   972,   978. 

V.  Farrington,  1261,  1844. 

V.  Greenleaf,  1364. 

V.   Haviland,      1569,      1570,      1581, 
1617. 

V.  Hitchcock,    410,    416,    417.    877. 

V.  Lowndes,    1928. 

V.  Perkins,  2115. 

V.  Robinson,  114,  451,   471,  473. 

V.  Sullivan,    2070. 
Bartley  v.   Phillips,  361,    450. 
Barton     v.    Learned,     437,     490,     1733, 
1737. 

V.   Smith,    314. 
Bartram  v.  Hering.  551. 
Barwick   v.    Thompson,    487. 
Barwick's   Case,    162. 
Bascom  v.   Dempsey,   2117. 
Baskin  v.  Seechrist,  460,  481. 
Bass    V.    Metropolitan    West    Side    El. 
R.    Co.,    716,    812,    1612,    1705. 

V.   Rollins,    834,    1158,    1159,    1225, 
1241,    1243,    1271. 

V.  West,    948,    2125,    2129. 
Basserman    v.    Trinity    Church    Soc, 

815. 
Bassett  V.  Dean,  1218. 
Bastin   V.   Bidwell,    1537,   1538,   1539. 
Batchelder  v.    Batchelder,    1423,    1425, 
1426. 

V.   Dean,   59,   1540,   1710. 
Batchelour  v.  Gage,  963,  1130. 
Bateman   v.   Hotchkin,    737. 

V.  Maddox,    235,    236,    1484,    1519, 
207L 

V.  Superior    Court    of    San   Fran- 
cisco, 1772. 
Bates  V.  Austin,   1355. 

V.  Donaldson,   933. 

V.  Dunham,   217. 

V.   Hallinan,    2003. 

V.   Johnston,  1408. 

V.  Nellis,   1081,    2032,   2033. 

V.   Scheik,    1829. 
Bath  V.  Lindenmeyer,    1851. 
Bath  Gas  Light  Co.  v.  ClafEy,  204. 
Batteman   v.  Albright,   1644,   1646. 

V.   Finn,    696. 


Battishill  v.  Reed,  2119. 

Banders  v.  Fletcher,  1163. 

Bauer  v.   Knoble,    1755,   1772,    1774. 

V.  Taylor,  295,   300,   561. 
Bauernschmidt    Brew.    Co.    v.    McCol- 

gan,    1593,    1594. 
Baugher  v.   Crane,  730. 

V.  Wilkins,    519,    537,   2125. 
Baughman   v.    Portman,   1231. 

V.   Reed,    187,    1651. 
Baum  V.  Bell,  1958. 

V.  Gaffy,   321. 
Baumgardner  v.   Consol.  Copying  Co., 

1152,  1268. 
Baumgarten  v.  Smith,  452. 
Baumier  v.  Antiau,  1296. 
Baumman  v.   Binzen,   1678. 
Baxley  v.   Segrest,  1958,  2093,  2094. 
Baxter  v.  Browne,  373. 

V.   Bush,  198,  199,  1971,  1977  ,1978. 

V.  Mattox,    68. 

V.   Providence,  73,  74. 

V.   Ryers,    540. 

V.  Smith,   194. 

V.   Taylor,    2099,   2112,    2124. 
Bay    St.    Louis    v.    Hancock    County, 

106,  1742. 
Bay  State   Bank  v.    Kiley,   1441,   1452, 

1454. 
Bayles  v.  Clark,   297. 
Bayley  v.   Bradley,  1492,  1870. 

V.   Fitzmaurlce,    385. 

V.  Hughes,   889. 

V.  Lawrence,   1244. 
Baylies    v.    Ingram,    1178,    1232,    1479, 

1489,   1814. 
Baylis  v.  LeGros,  767,  1374,  1401,  1403. 

V.  Usher,   2082. 
Bayliss  v.  Jiggens,  850. 
Bayly  v.  Briggs,    1821. 
Bayne  v.  Walker,  617. 
Baynes  v.   Chastain,  2130. 
Baynes  &    Co.    v.    Lloyd   &    Sons,    519, 

522. 
Baynham     v.     Guy's     Hospital,     1524, 

1525,   1533. 
Baynton  v.   Bobbet,  1164. 

V.  Morgan,    962,  1069,   1070. 
Beach  v.  Bainbridge,  1799. 

V.  Barons,    1100. 

v.   Crain.   584.   752,  763. 

V.   Farish,  1202. 

v.  Gray,   1883. 

V.   McGovern,  1791. 

V.  Nixon,    1365,    1368,    1370,    1752. 

V.   O'Riley,   2051. 
Beadle  v.  Monroe,   361,   1049. 


TABLE  OF  CASES. 


2145 


[KEFEEENCES    ARE  TO  PAGES.] 


Beakes  v.  Haas,  1263,  1305. 

V.  Holzman,  598,   600,   606. 
Beal  V.  Bass,  1364. 

V.  Boston     Car     Spring     Co.,     99, 
1105,    1107. 
Beale  v.   Sanders,   250,  251. 
Beale  &  Taylor's  Case,  1091. 
Bealey  v.  Blake's  Adm'r,  1120. 

V.  Stuart,  808. 
Beau    V.    Folmar    Sons    &    Co.,    1932, 
1934. 
V.   White.  1329,   1926,  1934,   2008. 
Beals  V.  Providence  Rubber  Co.,  847. 
Beamish  v.  Cox,  1429. 
Bean  v.  Edge,  2016. 
Beard  v.  Knight,  1250,  1254. 

V.  State,  1660. 
Beardman  v.  Wilson,   909,  988,  1862. 
Beardsley  v.  Morrison,  604,  1372,  1843. 

V.  Nashville,   1862. 
Bears  v.  Ambler,  790. 
Beasley  v.   Darcy,   1415. 
Beattie  v.  Hughes,   1908,   1943. 
V.  Mair,   1506. 

V.  Parrott    Silver    &    Copper    Co., 
989. 
Beatty  v.  Gregory,    32. 
Beauchamp  v.    Runnels,    102. 
Beaumont  v.  Crane,  1653. 
Beavan  v.  Delahay,   237. 
Beavers  v.   Trimmer,   2107,  2118. 
Becar  v.  Flues,  291,  544,  1154. 
Beck  V.  Allison,  618. 
v.  Biddle,   1159. 
V.  Birdsall,   1712. 
V.  Eagle   Brewery,   1135. 
V.  Minnesota    &     Western     Grain 
Co.,  422,   441,   488,   1918,   1926, 
1939,   1962. 
V.   Rebow,    1578. 
Becker  v.  Becker,  163. 
V.  Bullowa,   646,   697. 
V.  Davis,   1887. 
V.  De  Forest,    372. 
V.  Dupree,  20S8,  2089. 
V.  Walworth,    978. 
V.  Werner,   925,    2004,   1375,   2033. 
Beckman  v.  Sikes,   1646. 
Beckwith  v.  Bent,  1926,  1927,  1933. 
V.  Boyce,   1569,    1585,   1586,   1587. 
V.  Carroll,  1663. 
V.  Howard,  289,  826. 
Beddall  v.  Maitland,   1506,  1509. 
Bedford  v.  McElherron,  110,  1418. 

V.  Terhune,     950,    951.     973.    1322 
1873.    1876. 


Bedingfield     v.     Onslow,     2097,     2098, 

2124. 
Bedlow    V.   New    York    Floating   Dry 

Dock  Co.,  17,  814,  822. 
Beebe  v.  Coleman,  1106,  1113. 

V.  Tyre,   Sll. 
Beecher  v.   Bartlett,   1969. 
V.   Duffleld.   1263,   1881. 
Beekman  v.  Lansing,  1252. 

V.  Van  Dolsen,  740,  777. 
Beer  v.  Beer,  1833. 
Beers  v.  Field,  1966. 
V.   St.   John,    1576. 
V.  Taussig,   1209. 
Beeson  v.  Burton,  103. 
Beeston  v.  Yale,  1469,  1871.  1884. 
Behan  v.  Ghio,  59. 
Behrman  v.   Barto,  1537. 
Beidler  v.   Fish,   1316,  1736,  1737. 
Beiler  v.  Devoll.  230,  1457,  1750. 
Belasyse  v.   Burbridge,  125. 
Belcher  v.    Grimsle.y,   1931,   1943. 

V.   Mcintosh,   752. 
Belden  v.   Union  Warehouse   Co.,   890. 
Belding    v.    Texas    Produce   Co..    1482, 

14SS. 
Belding  &  Co.  v.  Blum,  1552. 
Belfour  V.  Weston,   1191,  1202. 
Belger  v.    Sanchez,   1868. 
Belinski  v.  Brand,   1541,   1764. 
Belknap  v.  Belknap,  1879. 
Bell  V.  Allen,  2093,  2094. 

V.  American    Protective    League, 

984,   987,   1131. 
V.  Baker,  299. 
V.   Bitner,    1704. 
v.   Bruhn,   1460. 
V.   Ellis,    1855. 
V.  Golding,    361. 
V.   Hurst,   1912.   1924. 
V.   Matheny,  1951. 
V.  Midland  R.  Co.,  2109,   2133. 
V.  Norris,    2078. 
V.  Potter,  1995. 
V.  Ritner,   1848. 
V.  Wright,   1680. 
Bellasis  v.  Burbriche,  1840. 

V.  Burbrick,    293,   1154,    1155. 
Beiler  v.   Robinson,   1530. 
Belles   V.   Anderson,    1498,   1499. 
Bellinger  v.   Kitts,  361. 
Bellows  V.    McGinnis,   713. 

V.  Wells,  1965.  1974.  1976. 
Beloit  Second  Nat.  Bank  v.  O.  E.  Mer- 
rill Co.,  126. 
Belse   V.   Batdorf,    1964. 
Belshaw  v.  Moses,  1809. 


L.  and  Ten.  135. 


2146 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Beltzhoover  v.  Waltman,  2006. 
Belvin    v.     Raleigh    Paper    Co.,    1577, 

1581,   1620,   1623. 
Bemis  v.   Allen,    308,    309. 

V.   Wilder,   930,    939,   957. 
Ben  Lomond  Wine  Co.  v.  Sladky,  1741. 
Benavides  v.   Hunt,    1396. 
IBender  v.   George,   994,  1147. 
Benedict  v.  Citizens'  Bank,  1847. 

V.  Everard,   970,  975. 

V.  International     Banking    Corp., 
831. 

V.  Jennings,    1857. 

V.  Morse,   490. 
Benfey   v.   Congdon,  129. 
Benjamin  v.    Benjamin,   1725,   1806. 

V.   Wilson,    262,    263. 
Benkard  v.   Babcock,   591,  1846. 
Benn  Davi.s,  In  re,  2021. 
Bennett  v.  Austin,  1105. 

V.  Bayes,  1095,   2033,   2031. 

V.  Bittle,    269,   1157,    1260. 

y.   Budweiser  Brew.  Co.,    1789. 

V.  Herring,  773,   900. 

V.  Lytton,  354. 

V.  McKee,    1108,    1923. 

V.  Nick,   1768,   1803. 

V.   Robins,    2044. 

V.  Robinson,   319,   1729,   1786. 

V.   Schoelkopf,    558. 

V.  Sullivan,    559,    568,    600. 

V.  VanSyckel,    1559. 

V.  Womack,  395,   396,  844, 
Bennett's  Case,   1250. 
Bennock  v.  Whipple,   114. 
Benson  v.  Baldwin,    1826. 

V.   Bolles,    584. 

V.  Gottheimer,    1973. 

V.   Renken,    119,   133. 

V.   Suarez,    935. 
Bentley  v.  Atlanta,   163,   2125. 

V.   Sill,  1298. 

V.   Taylor,   602. 
Benton  v.  Beakey,  1495. 
Beranek  v.  Beranek,   1311. 
Berg  V.  Parsons,  613. 
Bergengren  v.  Aldrlch,   208. 
Berger  v.   Hoerner,  1573,    1585. 
Bergh    v.    Herring   Hall   Marvin    Safe 

Co.,  1572,  1595. 
Bergman   v.  Guthrie,  1922. 

V.  Papia,  1270,   1289. 

V.   Robert.s,  473,  499,  1782. 
Berkeley  v.   Hardy,   1829,  1830. 
Berkey  &  Gay  Furniture  Co.  v.  Sher- 
man Hotel  Co.,  1926,  1927.  1935. 
Berkowsky  v.  Cahill,  1469. 


Bernal  v.   Hovius,   186. 

Bernauer  v.  Hartman  Steel  Co.,  610. 

Berner  v.   Gebhardt,    1447,   1448. 

Berney  v.  Moore,  1416. 

Bernhard   v.    Curtis,   345,    548,    550. 

V.   Reeves,    646. 
Bernhardt  v.   Curtis,    1189. 
Bernheimer     v.     Adams,     1574,     1575, 
1576,   1594,    1618,  1619. 

V.  Verdon,    960. 
Bernix  v.  Boyer,  302,  304. 
Bernstein   v.   Demmert,   1484,   1487. 

V.     Heineman,     1180,     1542,     1812, 
1980. 

V.   Koch.    1461. 

V.   Light.stone,    138 
Berrey  v.  Lindley,  250,  251,  1451. 
Berridge   v.   Glassey,    483. 
Berrie  v.  Woods,  888,  1711. 
Berrington    v.    Casey,    291,     522,    542, 

544,   547. 
Berry  v.  Berry,  1918. 

V.   Heard,  2116. 

V.  McMullen,    972. 

v.   Potter,   25. 

V.   Staunton,    923. 

V.   VanWinkle,    1697,   1706,   1711. 
Berry     Horn     Coal     Co.     v.     Scruggs- 

MeClure  Coal  Co.,  815. 
Berryhill  v.  Healy,  935. 
Bertie  v.   Beaumont,  332. 

V.  Flagg,  570,  576. 
Bertram  v.   Cook,   462,  490. 
Bertsch  v.  Unterberg,   646. 
Besley  v.  Besley,  541,   1001. 
Bess  V.  Williams,   1347,  1348. 
Bessell  v.  Landsberg,  1436,  1883,  1884. 
Best  v.  Davis,  239. 

V.   Drake,    2076. 
Best  Mfg.  Co.   V.   Cohn,  1623. 
Betcher  v.    Hagell,    624. 
Bethell  V.   Blencowe,   1435. 
Betsinger    v.    Schuyler,    1967,    1973. 
Bettis  V.   McNider,   1112,   1114. 
Bettison  v.   Budd,   463,    839. 
Betts  V.  Dick,   939. 

V.  June,   1543,    1550. 

V.  Ratliff,  184,   1651,  1654. 

V.   Wurth,    436,    451. 
Betz  V.   Maxwell,   1426,   1437. 
Bevans    v.    Briscoe,    1407,    1632,    1633, 

1635. 
Beverley's  Case,  200. 
Bevil's   Case,   2060,    2072. 
Bewick  v.  Whitfield,  737. 
Beyer  v.  Fenstermacher,  1249. 


TABLE  OF  CASES. 


2147 


[EEFERENCES    AEE  TO  PAGES.] 


Beynroth  v.  Mandeville.  1495,  1498. 
Bianchi  v.  Del  Valle,   581. 
Bible   V.  Hussey,   125:i. 
Bickford  v.   Kirwin,  1170,  1171. 

V.   Parson,   895.    968. 
Bickle   V.   Beatty,    2001. 
Bickmore  v.   Dimmer,   750. 
Bicknell  v.   Hood,    372,   376. 
Biddle    v.    Hussman,    865,    1064,    1065, 
1105,   1184. 

V.  MoDonough,   1052. 

V.   Ramsey,    1546. 

V.   Reed,    574,    576. 

V.  Vandeventer,   65. 
Bien  v.  Bixby,  1756,   1771,   1772. 
Bien  &  Co.  v.  Hess,   587,  589,   590. 
Bierenkamp      v.      Bierenkam^p,      1746, 

1804. 
Biesenbach  v.  Key,   2047. 
Big  Six  Development  Co.  v.  Mitchell, 

1390. 
Bigelow  V.   Collamore,   1205. 

V.   Judson,  2045,  2052,   2066. 
Big-gins   V.  Goode,   2084,   2087. 
Biggs  V.   Brown,   1638. 

V.  McCurley,    587,    589.    597,    1240, 
1273. 

V.  Piper,   1964. 

V.  Stueler,    1333,    1339. 
Bigham  v.  Cross,   1941,  1946,   1947. 
Bigler  v.  Furman,  441,  443. 
Biglow  V.    Biglow,   1860. 
Bignell   v.    Clarke,   2058. 
Billinghurst    v.    Speerman,    979,    1133. 
Billings   V.  Canney,    377. 

V.   Taylor,    710. 

V.   Tucker,   1670. 
Binder  v.   Azzaro,    1733,   1787. 
Bing  V.   Tyler,    1146. 
Bingham  v.  Honeyman,  266. 

V.  Vandegrift,   1920,    1955. 
Binney  v.  Chapman,  501. 
Binns  v.  Hudson,    1249. 
Binswagner  v.  Deardon,  1453. 
Binz  V.   Tyler,   1851. 
Birch  V.   Clifford,    769. 

V.   Stephenson,    1053. 

V.   Wright,  117,  123,  237,  875.  1855, 
1872.  1875. 
Bircher    v.    Parker,    1571,    1581,    1588, 

1592,    1615. 
Birckhead  v.   Cummins,    224,  234,   238, 

259.    1155,    1268. 
Bird   V.   Anderson,    2016. 

V.   Baker,    49. 

V.  Defornvielle,    1441. 


Bird    V.    Fannon,    1739. 

V.   Greville,    570,    571. 

V.   Higginson,    223. 
Eirdsall   v.  Phillips,   1717,   1733. 
Birmingham  v.   Rogers,   184,  190. 
Birmingham    Breweries    v.    Jameson, 

809. 
Birmingham  Canal  Co.  v.  Cartwright, 

1683. 
Bischoff  V.  Trenholm,  2014,  2016,  2022. 
Bishop  V.   Bryant,  2064. 

V.  Clark,   1865. 

V.   Doty,    187,    1659. 

V.    Elliott,   1578,   1608. 

V.  Howard,   127. 

V.   Lalouette's  Heirs,    491. 

V.   Springett,    2112. 
Bishop  of  Bath's   Case,   49.   57,    60,  61, 

62,   108,   124,    871. 
Bishop  of  St.  Albans  v.  Battersby  889. 
Bismark  Bldg.   &   Loan  Ass'n   v.   Bol- 
ster,  959. 
Biss.  In  re,  1556,   1558. 
Bissell    V.    Lloyd,    625.    628,    1235,   1239, 
1240. 

V.  Payn,  1118. 
Bittinger    v.    Baker,    879,    1632,    1646, 

1647. 
Bivins  v.   West,  1946. 
Bixby  V.  Casino  Co.,  1752,  1773. 
Blachford  v.   Frenzer,   1002. 
Black  V.   Allan,   321. 

V.   Coleman,    2056,   2087. 

V.  Davis,    879. 

V.   Gilmore,   519. 

V.   Ligon,   206,   211. 

V.  Maitland,  633. 

V.   Scott,  1658. 
Blackall   V.  Morrison,   1980. 
Blackburn  v.  Lawson,   1864. 

V.  Muskogee    Land    Co.,    423. 
Blackenship  v.  Blackwell,  183. 
Blackford  v.    Frenzer,   1739,   1786. 
Blackley  v.   Coles,    111. 
Blackman  v.  Kessler,  300,  1889. 

v.   Miller,    1689. 

V.   Welsh,    1739. 
Blackmore     v.     Boardman,     887,     998, 
1523,  1548,   1549. 

v.  Taber's  Ex'r,  1974. 
Blackwell  v.  Bailey,  1673. 
Blades  v.  Arundale,  2020. 

v.  Higgs,    1508. 
Blain  v.  Everitt,   1503. 
Blair  v.  Claxton.   1166,  1373. 

V.  Mason,  120,  1450. 


2148 


TABLE  OF  CASES. 


[REFERENCES    ARE  TO  PAGES.] 


Blair   v.    Porter,    1718. 

V.   Rankin,    965. 
E'.aisdell    v.    Portsmouth,   G.    F.    &    C. 

R.  Co..  22. 
Blake  v.  Ashbrook,  865. 

V.  Baker,    848. 

V.  Coates,   1663. 

V.   Concannon,  197,  198,   199. 

V.   Counselman,    1931,    1946,    1962, 
1963. 

V.  De   Liesseline,   2020,    2040. 

V.  Dick,  556,   607,  1287,   1334,  1335, 
1337,    1338. 

V.   Poster,   212,    399,   431,   513.  514. 

V.  Fox,   643. 

V.  Howe.    463. 

V.   Peters,  731. 

V.  Ranous,   298. 

V.  Sanderson,    939,   1074,   1080. 

V.   Woolf,    616. 
Blakeley  v.  Blakeley,  200. 
Blakemore  v.  Taber's  Ex'r,  1967. 
Blakeney  v.   Ferg-uson,   486. 
Blamford  v.  Blamford,   131. 
Blanchard  v.    Ames,    1679. 

V.   Bowers,    120. 

V.  Raines,   317,  2068. 

V.   Tyler,  175. 
Blanche   v.    Bradford,    2005. 
Blantire  v.   Whitaker,  491. 
Blashford  v.  Duncan,  1744. 
Blatchford  v.  Cole,  872,   1500,   1504. 
Blatchley  v.  Coles,   1421. 
Bleakley  v.   Smith,   386. 

V.   Sullivan,  1968. 
Bledsoe  v.   Mitchell,    1932. 
Bleecker  v.   Ballou,    846. 

V.   Smith,  946,  1399,  1400. 
Bless   V.    Jenkins,    260,    263,    285,    286, 
287,     1000,     1332,     1345,     1441,     1458, 
1459,    1469,   1493. 
Blethen  v.   Towle,   1562. 
Blewitt  V.  Coleman,  407. 

V.  Millett,    1555. 
Blickley   v.  Luce's  Estate,   614. 
Blish  V.  Harlow,   1779. 
Bliss  V.   Caryell,  1794. 

V.  Collins.    1065,    1066,    1101. 

V.  Gardner,    960,   1821. 

V.  Johnson,    1510. 

V.  Whitney,    1563,    1569,  1571.  1573, 
1582,    1583,    1585,    1586,    1587, 
1616. 
Blltch  V.  Edwards,  314. 

V.  Lee,    1647. 
Block   V.   Bonnet,    1815. 

V.  Ebner.   584,   591,   1846, 


Block    V.    Latham,    1937,    1942,    2032. 

V.   Smith,    314,    316,    1923. 
Blocker   v.    McClendon,    437,    1433. 
Blodgett  V.   Jensen,    534. 

V.  Lanyon  Zinc  Co.,    1036. 
Blood    V.    Spaulding-,    748. 
Bloodworth     v.     Stevens.     598,     1073. 

1843. 
Bloom  V.   McGehee.  1940. 

V.  Wanner  81. 
Bloomer  v.  Merrill,    1223. 
Blossom  V.  Knox,  539. 
Blount    V.   Connolly,    887. 
Blue  V.  Sayre,  1356. 
Blum  V.   Jones,    1961. 

V.  Robertson,    111. 
Blume   V.    McClurken,   1880. 
Blumenberg  v.  Myres,  1487. 
Blumenthal   v.    Blooming-dale,    245. 

V.   Prescott,     608,     610,     612,     613, 
615. 
Blunden   v.   Baugh,   196,    2134. 
Blunt  v.   Aikin,    680. 
Bly  v.   Edison  Elec.  Illuminating  Co., 

2098,  2121,  2126,  2127,  2128. 
Blyth  v.  Dennett,  1463,  1464. 
Blythe   v.    Gately,    846. 

V.  Pratt,   1276,   1301. 
Boag  V.    Woodward,    1941. 
Board   v.   Board,    454. 
Board  of  Chosen  Freeholders  of  Hud- 
son    County     v.     Woodcliffe     Land, 
675,  679. 
Board   of  Education   v.    Frank,   1050. 
Board   of  Health   of  New  Rochelle  v. 

Valentine,   686. 
Boardman  v.    Howard.    780. 
Bockover  v.   Post,   922,    938. 
Boden   v.   Scholtz.   623. 
Bodkin  v.  Arnold,   16. 
Bodman  v.   Murphy,  396. 
Bodwell    Granite    Co.    v.    Lane,     111, 

1355. 
Bodwell    Water     Power    Co.     v.     Old 
Town     Elec.    Co.    1585,     1592,    1604, 
1742,  1744. 
Boehm   v.   Rich,   1045. 
Bogendoerfer  v.   Jacobs,    643,    671. 
Boggs  V.   Black,  1464,   175\ 
Bohannons  v.   Lewis,   762. 
Bohm  v.   Dumphy,    1987,   2085,    2086. 
Bohn   v.    Hatch,    450,    452,    464,    490. 
Boisseau  v.    Fuller,    379. 
Bokee   v.   Hamersley,    983,    1519,   1771. 
Bold  V.  O'Brien,   597,   623. 
Boley  V.  Barutio,  407,  1860,  1880. 
BoUenbacker  v.  Fritts,   1484. 


TABLE  OF  CASES. 


2149 


[KEFEKENCES    ARE  TO  PAGES.] 

Boiler  V.  New  York,  1810. 
Boiling-  V.  Martin,  1314. 

V.  Stokes,    S-17. 
Bolton  V.   Bishop   of  Carlisle,   1316. 
V.  Cannon,   1822. 
V.  Duncan,    1992. 
V.  Tomlin,   238,    339,    350,    1030. 
Bon  V.   Watson,    1223. 
Bonaparte    v.    Thayer,    348,    374,    380, 

575,    2029,    203C. 
Bond  V.  Carter,  1948. 

V.  Chapman,  1439.  1778,  1832. 
V.  Rosling,  258,   276,  373,   391,   689, 
Bonds  V.  Smith,  488,   490. 
Bonetti   V.    Treat,    962,    975,    990,    1124 

1328. 
Boniel  v.  Block,  1510. 
Bonnecaze  v.   Beer,   10. 
Bonnell  v.  Allen,  788,  789. 
Bonnewell   v.    Jenkins,    379. 
Bonsall  v.  McKay,  1420. 
Boodle  V.  Cambell,  1088,  1164. 
Boody  V.  McKenney,  198. 
Booker   v.    Jones'    Adm'r,    1961,    1976 
1978. 
V.  Stewart,  1653. 
Bool  V.  Mix,  195. 
Boone  v.  Eyre,  342. 

V.  First  Nat  Bank,  949. 
V.  Stover,   27,   28,   30,  31,  32. 
Booraem  v.  Morris,   1219. 
Boos  V.  Dulin,  363,  370. 
Booth  V.  Gaither,  272.  837. 
V.  Kehoe,  959. 

V.  Oliver.   1600,   1968,   1971,  1974. 
Boothby  v.   Hathaway,  534. 
Boraston  v.  Green,  237,  1637,  1638. 
Borchardt  v.  Parker,  834. 
Borcherling  v.   Katz,  1135,   1827. 
Bord  V.  Cudmore,  1821. 
Borden  v.  Bell,  1418. 

V.    Croak,    1967,    1968,    1973,    1971, 

1972. 
V.  Sackett,   1372,   1758,   1766. 
Bordereaux    v.    Walker,   869,    870.    956, 

1103,  1109. 
Borderre  v.  Den.  285. 
Bordman  v.   Osborn,   1010,   1011. 
Boreel  v.  Lawton,   521.  528,  1262.  1845. 
Borggard  v.  Gale,  562,  574,  834. 
Borgman  v.   Spellmire.  848,   989. 
Borland  v.  Box,  441. 
Borman    v.    Sandgren.    122,    568,    652, 

679.  683,  700. 
Borough    of    Phoenixvllle   v.    Walters, 

1748. 
Boroughe's  Case,  1378. 
Boroughs  V,  Windsor,  924. 


Borrell  v.  Dewart,   878. 
Bosler  v.   Kuhn.  11S9. 
Boss  V.  Jarmulowsky,  633.  634.  637. 
Bostic  Co.  V.  Eggleaton,  288. 
Boston  v.  Binney,  1872. 
v.  Gray.  582,  690. 
V.  Worthin.Tton,  792. 
Boston   Beef   Packing  Co.   v.   Stevens, 

675,  676,  6S4. 
Boston   Block   Co.  v.   Buffington,   1219. 
Boston  Clothing  Co.  v.  Solberg.  62. 
Boston    C.    &   M.    R.    Co.    v.    Boston    & 

L.  R.  Co.,  924j  926,  957. 
Boston    El.    R.    Co.    v.    Grace    &   Hyde 

Co.,    5.    959,    1369,    1376. 
Boston  &  W.  R.  Corp.  v.  Ripley,  1893. 
Bostwick  V.  Frankfield.   88,  91. 

v.  Losey,  5S7.  589,  1237,  1239.  1240. 
V.  Mahoney,  177-8. 
Bosworth  V.  Thomas,  579.  613. 
Botheroyd   v.   Wooley.   139.    1076. 
Botting  V.  Martin.  953. 
Boulton  V.   Defries,  1883. 
Bourcier    v.    Edmundson.     1927.    1938, 

194S.   1955,   1977. 
Bourland  v.  McKnight,  189. 
Bouscaren  v.  Brown,  962,  1328. 
Boutte  V.   Dubois,    843. 
Bova  V.  Norigian,  866. 
Bove  V.  Coppola,  98,  1001. 
Bovet  V.  Holzgraft,  1576,  1579. 
Bowdish  V.  Dubuque,  472,  475,  484. 
Bowditch   V.   Chickering,   856,  1055. 

V.  Heation,   1244. 
Bowdre  v.  Hampton,  987,  1823,  1835. 
Bowe  V.  Hunking,  562,  566,  569,  650. 
Bowe's  Case,  1075. 

Bowen    v.     Anderson,     122,     123.     703, 
1429. 
V.  Beck,  347. 

V.  Clarke,  1137,  1171,  1337,  1338. 
V.  Haskell,  1331. 
V.  Hatch,  295. 
V.  Owen,  1097,  2030. 
V.  Proprietors  of  the  South  Build- 
ing,  1824. 
V.  Roach,  1665. 
V.  Wood,  1618. 
Bower  V.  Hill,  2112. 

V.  Peate.  613. 

Bowers  v.  Cator.  387. 

V.  Davis,  1951. 

v.   Nixon,    1053. 

Bowes.  In  re,  979,  1132.  1133, 

Bowes  v.  Caroll,  383. 

V.   East  London   Waterworks  Co. 
206,    209. 
1  V.  Graves  &  Vinton  Co.,  1649. 


2150 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO  PAGES.] 


Bowie  V.  Herring,  1863. 

Bowles  V.   Dean,   1786,  1792,  1794. 

Bowles'   Case,   737. 

Bowies'  Ex'r  v.  Jones,  1975. 

Bowling    V.    Crook,    1391. 

V.  Bwing,    1467. 
Bowman  v.  Bradley,  333,  334,  336. 

V.   Foote,    1369,    1373,    1377,    1378, 
1403. 

V.   Kleeman,  1830. 

V.  Powell,    347. 

V.   Wright,   1056,   1057,    1059,    1323, 
1326. 
Bowne,   In   re,    1922. 
Bowser  v.   Bowsei,    496,   497. 

V.  Colby,    1375,    1412,    1414. 

V.  Cox,    1832. 

V.  Scott,    1251,    2019,    2002. 
Bowyer  v.    Seymond,    1377,   1382. 
Box  V.   Jubb,    648. 
Boyce  V.   Bakewell,  958,  982. 

V.  Day,    1913. 

V.   Graham,    239,    1736. 

V.   Snow,     692. 

V.  Tallerman,    661,    692,    700,    701. 
Boyd  V.  Douglass,  1611. 

V.   Fraternity    Hall    Ass'n,    927. 

V.  George,    1342. 

V.  McCombs,    1016,    1045. 

V.  Milone,    1758,    1759,    1791. 

V.  Profaze,  2055. 

V.  Sametz,    494,    1734,   1735. 

V.   Shorroek,    1583,     1614. 

V.   Talbert,    1378. 
Boydston    v.    Morris,    1961. 
Boyer  v.    Commercial    Bldg.    Inv.   Co., 
296,    529,   557. 

V.   Smith,    503. 
Boyle   V.   Lysaght,    1534. 

V.   Peabody    Heights   Co.,    1523. 
Boylston  Ins.  Co.   v.   Davis,  1653. 
Boynton   v.  Bodwell,    1454. 

V.  Jackway,    490. 
Bracebridge  v.  Buckley,  1409. 
Brackenridge   v.    Millan,    1907. 
Bracket   v.    Alvord,    1821. 
Bradburne  v.   Botfleld,  345,   356. 
Bradbury   v.   Wright,    844,    1011. 
Bradford  Oil  Co.   v.  Blair,  889. 
Bradish    v.    Schenck,    187. 
Bradley    v.    ArnoM,    1651,    1652. 

V.   Bailey,    1635. 

V.  Citizens    Trust    &    Surety    Co., 
1237. 

V.  Davenport,  1886. 

V.  De   Goicouria,   1220,    1227,    1280. 

V.  Hume,   1718,   1733. 


Bradley  v.   McDaniel,   1121. 

V.   Metropolitan    Music    Co.,     374, 
375,   1049. 

V.  Peabody     Coal    Co.,     873,     884, 
1040,    1080. 

V.   Slater,    1472,    1479. 

V.   Smith's   Sons,    1847. 

V.  Walker,    1328. 
Bradshaw  v.  James,   982. 
Bradt   v.    Church,    18,    1173. 
Brady  v.  Flint,  66,  123. 

V.  Klein,    662,    663,    700. 

V.  Nagle,    1369. 

V.   Peiper,    1140. 

V.   Valentine,    665,   667. 

V.  Walker,   1338. 
Bradyll  v.   Ball,    2073. 
Bragg  V.   Wiseman,  354,   522. 
Brahn  v.  Jersey   City  Forge  Co.,   286, 

287,    1439,    1749,    1785,   1790. 
Brainard  v.  Hudson,  1757,  1768. 
Braithwaite  v.  Cooksey,   2033,   2040. 
Braman    v.    Dodge,    275. 
Bramley   v.   Chesterton,   1495. 
Bramwell   v.    Lacy,    801. 
Brancato  v.    Kors,    635. 
Branch    v.    Doane,    25,    164. 
Brande   v.   Grace,   14,   827. 
Brandenburg    v.    Reithman,     1526. 
Brandon  v.  Bannon,   16,   17. 

V.   Brandon,    88. 
Brandt  v.   Philippi,   1147,   1310. 
Branger  v.   Manciet,    536. 
Branscomb  v.  Bridges,   2030,  2079. 
Brant    v.    Vincent,    245,    246. 
Branton    v.    O'Briant,    133. 
Bras    V.    Sheffield,    1677. 
Brashear  v.   Chandler,   754,  780. 

v.   Macey,    733. 
Brashier    v.    Jackson,    377. 
Bratt  V.   Woolston,   1550,   1553. 
Brattle  Square   Church  v.   Grant,   910. 
Brauchle  v.   Nothhelfer,    1728,   1763. 
Brawley  v.  Wade,  870. 
Bray  v.  Cobb,   95,    981,    1189. 

V.  McShane,    1405. 

V.   Tracy,    731,    732. 
Braythwaite    v.    Hitchcock,    126,    139, 

380. 
Brayton   v.    Boomer,    1125. 
Bream    v.    Dickerson,    888,    893,    1697, 

1704,    1708,    1712. 
Brearley  v.  Cox,    1600. 
Breck,   In    re,    930. 
Breckenridge   v.   Brooks,    1062. 
Brecknock      &     Abergavenny      Canal 
Nav.  Co.   V.  Pritchard,   762. 


TABLE  OF  CASES. 


2151 


[HEFERENCES   ARE  TO  PAGES.  1 


Breeding's  Heirs  v.  Taylor,   174. 
Breese    v.    Bange,    1318,    1589. 

V.  McCann,     1843. 
Brennan  v.  Blatch,   1851. 

V.   Bolton,   263,  387,  389. 

V.  Ellis.  637. 

V.   Flood,    2043. 

V.   Gale,     1827. 

V.  Jacobs,   542,   545. 

V.  New  York,   1469. 
Brenner  v.   Bigelow,   435,   490,   492. 
Brent  v.  Haddon,  792. 
Brereton   v.    Evans,    493. 

V.   Tuohey,    898,    1551. 
Bresler    v.    Darmstaetter,    1709,    1711. 
Brett  V.    Berger,    582,    597. 

V.  Cumberland,   352,    882,  885,   962, 
963,   964,   1130,    1330,    1835. 

V.   Rogers,    850. 

V.  Sayle,    1027. 
Breuckman   v.   Twibill,    1171,   1335. 
Brewer  v.    Chappell,    1933. 

V.   Conger,    1532,    1533,   1867. 

V.  Dyer,  1328. 

V.   Eaton,    1395. 

V.   Knapp,    1081,    1092,    1138,    1469. 

V.  McGowen,    34. 

V.  Nat.     Bldg.    Ass'n,    1316,     1322, 
1335,  1337. 

V.  Thorp,    1138. 
Brewer    &    Hoffman    Brewing    Co.    v. 

Boddie,    202. 
Brewster  v.  De  Fremery,   576,   583. 

V.  Gracey,  22. 

V.  Kidgill,    846,    1128. 

V.   Kitchen,    846. 

V.  McNab,    331,    1248. 
Briar  v.    Robertson,    230. 
Brick  V.  Favilla,   1226. 
Bridewell   Hospital    v.    Fawkner,    934. 
Bridges   v.    Dill,    2124. 

V.  Hitchcock,    1522,    1526. 

V.  Potts,    140,    1448. 

V.   Smyth,   1988,    2029. 
Bridgewater  v.   Edwards,    1826. 
Bridgham  v.  Tileston,   870,   885. 
Brigant   v.   Tucker,    328. 
Brigg  V.   Thornton,    829. 
Briggs  V.   Austin,    1628,    1971. 

V.  Bennett,   1631,   1664. 

V.  Hall,    1160,    1161. 

V.   Large,    2008,    2063,    2064,    2065, 
2089. 

V.  Oaks,    1671. 

V.  Piper,    1960. 

V.  Roth,    1404. 

V.  Sowry,    2021. 


Briggs  V.   Thompson,  1273. 
Brigham   v.    Overstreet,    787,    1624. 

V.   Rogers,   365. 
Brigham   Young   Trust  Co.   v.    Wage- 

ner,    1175. 
Bright  V.  McOuat,  132. 
Briles  v.   Pace,   954. 
Brill   V.    Schlosser,    1981. 
Brimberry   v.   Mansfield,    1912. 
Brincefield    v.    Allen,    550,    551. 
Brink    v.    Mitchell,     1675,    1680,    1688. 
Brinkley  v.  Bethel,   276. 

V.   Hambleton,    994,   995. 

V.   Walcott,    1478,    1491. 
Brisben    v.    Wilson,    1023,    1997,    2063, 

2067,   2085. 
Briscoe     v.     McElween,      1046,      1998, 

2003,   2085,    2096. 
Bristed    v.    Harrell,    1763,    1790,    1807. 
Bristol    V.    Bristol    &    Warren    Water 
Works,   1545. 

V.  Hamniacher,  857,  859. 
Bristol    Corp.    v.    Westcott,    925,    1364, 

1374. 
Bristol  Hotel  Co.  v.  Pegram,  832. 
Bristor  v.   Burr,   335. 
Bristow    V.    Bristowe,    898. 

V.  Wright,    1838. 
Brittain  v.  Griggs,   1842. 
Brittin   v.  Vaux,    971. 
Broadus    v.    Smith,    1583,    1598,     1600, 

1602,    1603,    1620. 
Broadway    Bldg.    Co.    v.    Myers,    940, 

1262. 
Broadway  &  S.  A.   R.  Co.  v.   Metzger, 

289,    1532,    1548. 
Broadwell    v.    Banks,    853,     886,     964, 

1119. 
Brock   V.    Berry,    1507. 

V.  Desmond   &  Co.,   1385. 

V.   Dole,   718,   730. 
Brocklington    v.    Saunders,    382. 
Brockway  v.   Rowley,   1668. 

V.   Thomas,    253,    259,    1712,    1733, 
1778. 
Brockway's  Estate,   575. 
Broddie  v.   .Tohnson,    1026. 
Broders  v.  Bohannon,  1965,  1973. 
Brodtman  v.  Finerty,  581. 
Brody  v.   Cohen,  1934,   1951,   1959. 
Brogan  v.  Hanan,  687,  794. 
Brohawn  v.  Van  Ness,   279.  282. 
Brolaskey  v.  Hood,  809,  887. 
Brolasky  v.  Ferguson,   1858. 
Bronner  v.  Walter,  583. 
Brook  V.  Biggs,  376. 

V.  Hewitt.  394. 


2152 


TABLE  OF  CASES. 


[REFEKENCES    ARE  TO  PAGES.] 


Brooke 


"Warehouse 
,    2069. 
718,  719. 


& 


Bldg     &    Loan 


V.     Augusta 
Banking    Co 

V.  Kavanagh,  717; 

V.  Mernagh,  719. 
Brookes  v.  Drysdale,  396,  1374. 
Brookhaven  v.   Baggett,   522 
Brooks  V.  Allen.  1133,  1762,  1876. 

V.  Brooks,  219. 

V.  Clifton,   720,  721,  811. 

V.  Cunningham,  1016,  1046,  2002. 

V.  Cutter.  1203,  1348. 

V.  Galster,  1574,  1588,  1629. 

V.  Rogers,  448,  737,  1389.  1394. 

V.  "Wilcox,   2002,   2935. 
Broom  V.  Hore,  1131,  1820. 
Brosius  V.  Evans,  230. 
Brothers  v.  Hurdle,   1640,   1641. 
B.  Roth  Tool  Co.  V.  Champ  Spring  Co., 

124,   949,  950,  1426,   1435. 
Broughton  v.   Powell,   1626,  1951,  1961. 
Browder  v.   Phinney,   3S8,   1342,   1673. 
Brown  v.  Adams,  1D45,  1660,  2002. 

V.   Alfriend,    1844. 

V.  Amyot,  1076. 

V.  Arundell,   2009 

V.     Atlanta    Nat. 
Ass'n,  463. 

V.  Bates,   2127. 

V.  Beecher,  31. 

V.   Blunden,   761,   781. 

V.   Bowen,   2106. 

V.  Brackett,   1777. 

V.  Bragg,  45,  1364. 

V.   Bridges,   2098. 

V.  Brightly,   1432. 

V.  Brown,  1913,  2069. 

V.    Burlington,    575. 

V.   Burrington,   1658. 

V.   Burtinshaw,   1446. 

V.   Butler,   1352. 

V.  Cairns,  1011,  1057,  1154,  1171, 
1322,  1325,  1338,  1339,  1369, 
1371,   2093. 

V.  Carkeek,  818. 

V.  Crump,  729. 

V.  Curran,  576. 

V.  Dysinger,  480. 

V.  Fay,   1250. 

V.  Fowler,  84. 

V.  Glenn,  2J54,   2080. 

V.   Hamil,   1935. 

V.  Harris,   2066. 

V.  Holvoke  "Waterpower  Co.,  528, 
529,    1266,    1271. 

V.  Honeyfield,  814. 

V.    Howell,    2016,    2034,    2064,    2084. 

V.  Issaquena  County,  15. 

V.  Jaquette,  1649,  2302. 

V.  Kavs.r,  234,  237,  1427,  1428, 
J486,   1488. 


Brown  v.  Keller,  501,  1338,  1480,  1743, 
1751. 

V.   Kite,   12. 

V.  Larry,   1092,   1680,  168L 

V.  Leath,   1645. 

V.  Lennox,  998. 

V.  Lillie,  1562. 

V.   Lincoln,   1651. 

V.  Magorty,  788,  1489,  1824. 

V.  Metropolitan  Counties  Life  Ins. 
Soc.    1990,    1991. 

V.  Montgomery,  1462. 

V.  Neilson,   1972. 

V.     New    York,     1742,     18D1,     1810, 
1811. 

V.  New  York  Cent.  R.  Co.,  378, 

V.  Niles,   730,  803. 

V.  Noel,   193G,   1938. 

V.  O'Byrne,  264,  1126. 

V.  Owen,  1657. 

V.   Parsons,  1541. 

V.  Persons,   309,   313,  1727. 

V.  Pope,  949. 

V.  Quilter,  617. 

V.    Randolph,    308,    1867. 

V.    Reno    Elec.    L.    &   P.    Co.,    1573, 
1574,  1577,  1586,  1607. 

V.  Roland,  866 

V.    Samuels,    1515. 

V.  Schappacassee,  27. 

V.    Shevill,    2  308. 

V.   Sims,   2007,  2008,   2039. 

V.  Smith,  155. 

V.    Stackhouse,    2308,    2080,    2089. 

V.  Staples,  904. 

V.   Storey,    411,   413,   415. 

V.   Throop,  349. 

V.  Thurston,  1632,  1635. 

V.  Tighe,  1526. 

V.   Toronto  General  Hospital,   594. 

V.  Trumper,  124. 

V.  Turner,  1627,  1629,  1908. 

V.   Van  Horn.   140. 

V.   "Wakeman,   1287,   1305. 

V.  "Wal.lis,  1574,  1582,  1623. 

V.  AVard,  301,  1636. 

V.  "VA'atson,  1814. 

V.  "White,  690. 

V.  Wittner,  636. 
Brown  Land  Co.  v.  Lehman,  785. 
Browne  v.  Haseltine,  451. 

V.  Powell,  8,  1095,   2031,  2126. 

V.  "Warner,    277. 
Brownell  v.  Fuller,  1568,  1572. 

V.  Twyman  1930. 

V.   "Welch,    244,    248,    1486. 
Browning  v.  Boston,  48,  1431. 

V.  Dalesme,  819, 


TABLE  OF  CASES. 


2153 


[REFERENCES    ARE  TO  PAGES.] 


Browning  v.  Dann,  2054. 

V.  Garvin,  70,  778. 

V.   Walbrun,  347. 

V.  Wrig-ht.  524. 
Brownlow  v.  Hewley,  1095. 
Brownson  v.  Roy,  1107,  1111. 
Brcxton  v.  Ennis,  177. 
Brubaker  v.  Poage,  1725,  1739. 
Bruce  v.  Fulton  Nat  Bank,  1536. 

V.  Ruler,  1348. 

V.  Welcli,  1843. 
Bruder  v.  Gelsler,  74,  98. 
Brudnell  v.  Roberts,  399,  513. 
Brudnell's  Case,  45. 
Bruerton's  Case,  1064. 
Brugher  v.   Buchtenkirch,  635,   665. 
Brugman  v.   Noyes,  8  35. 
Bruley  v.  Garvin,  723. 
Brummell  v.  Macpherson,  944,  945,  947. 
Brundage    v.    Home    Sav.    &    L.    Ass'n, 

325. 
Brunker  v.   Cummin.g,   640,   671. 
Brunson  v.  Morgan,  4  90. 
Brunswick-Balke-Collender       Co.       v. 
Murphy,    1250. 

V.  Rees,  678,  704,  793,  794. 
Brun.swick  Gaslight  Co.  v.  United  Gas, 

Fuel   &   Light  Co.,   202,   204,   205. 
Brunswick    Grocery    Co.    v.     Spencer, 

579,  586,  595. 
Brush  V.  Beecher,   1523,   1524,  1525. 
Bryan  v.  Fisher,  588,  604.  1240. 

V.  Sanderson,   1922,  1956. 

V.  Smith,  1786. 

V.  Teal,   2048. 

V.  Wintaurn,  501. 
Bryant  v.  Carr,   642,   645. 

V.  Hancock  &  Co.,  807,  810. 

V.  Kin  law.  2135. 

V.  Mercier,  2049. 

V.  Pugh,  1649.  1652,  1660. 

V.  Sparrow,  7,  270. 

V.  Wells,  1829,  1831. 
Bryden  v.  Northrup,  289,  804. 
Buchanan   v.   Larkin,   472,   473. 

V.  Whitman.  50,  51,  63,  1475,  1550. 

V.  Wren,   1113. 
Buck  V.  Binninger,  538. 

V.  Holloway's  Devisees,  866. 

V.  Lee,  1952,  1953. 

V.   Lewis,  1337,  1338,  1432, 

V.  Pike,   767,   786. 

V.  Rodgers,   587,  390,  598. 
Buckey  v.   Snouffer,    1898,    1900,    1901, 

2321. 
Buckingham  Apartment  House  Co.   v. 

Defoe,  1337. 
Buckland  v.  Butterfield,  157S,  1579. 


Buckland  v.  Gibbins,   510. 

v.   Hall,    S94,    1554. 

V.  Papillon,  1548. 
Buckley  v.   Beigle,   1415. 

V.  Cunningham,  559,  623,  648. 

v.  Dolbeare,  2098. 

V.  Kenyon,  1018. 

V.  Pirk,  352,  978,  979. 

V.  Taylor,  1035,  1040,  1899,  2039. 
Kuckmaster  v.  Thompson,  1676. 
Buckner  v.  Warren,  1364,  1772. 
Buckwaller  v.   Klein,   1690. 
Duckworth  v.   Simpson,  895. 
Budd  v.  Marshall,  850. 
Budd-Scott   V.    Daniell,    518,    519,    526, 

530. 
Budilin  V.   Fortunato,  2105. 
Budlong  V.   Budlong,  80. 
Buel  V.  Buel,  1724,   1727. 
Buell  V.  Cook,  376,  454. 
Buerger  v.  Boyd,  1191,  1196. 
Buesching   v.    St.    Louis    Gaslight    Co., 

689,   790,   794. 
Buffalo   Stone  &  Cement  Co.  v.   Rad- 

sky,  1160. 
Bufferlow  v.  Newson,  455,  489. 
Buffum   V.  Breed,   1688. 

V.   Deane,  92,   1022,   1102,   1849. 
Buford  V.  Gaines,  2135. 

V.  Weigel.  1379. 
Buhl  V.   Kenyon,  937. 
Buhler  v.  Gibbons,  1540. 

V.  Smith,    1285. 
Buhman  v.  Nickels  and  Brown  Bros., 

78,   1495,   1746. 
Bulkley  V.   Devine,   267. 

V.  Dolbeare,   737,  2116. 

v.  House,   1137. 
Bull  v.   Sibbs,    1882. 
Bullard  V.   Hudson,   471,   473. 
Bullen  V.  Morrison,  1136. 
Bullitt  V.  Musgrave,   1693. 
Bullock    V.    Dommitt,    952. 

V.   Grinstead,    1694,    1696. 
Bullock-McCall-McDonnell    Elec.    Co. 

V.   Coleman,   567. 
Bulmer  v.    Brumwell,    775. 
Bulwer   v.    Bulwer,    1640. 
Bulwer's  Case,  1821. 
Bunch  V.   Elizabeth  City  Lumber  Co., 
291. 

V.   Kennington,  2019,    2023. 
Bunker  v.    Pineo,    826. 
Bunn   V.   Harrison,    561,    570,    571,   572. 
Buntin    v.   Doe,    2134. 
Bunting  v.  Sargent,    106. 
Bunton    v.    Richardson,    1494. 
Burbank  y.   Board  of  Assessors,   841. 


2154 


TABLE  OF  CASES. 


[nEFERENCES    AKE  TO  PAGES.] 


Burbank  v.  Dyer,  215,  1118. 

V.   Pillsbury,    348. 
Burch  V.    Harrell,    1825. 
Burden   v.   Knight,    257. 

V.  Lucas,    235. 

V.   Thayer,     872,     873,     874,     1101, 
1103,    1104,    1116,    1831. 
Burdett  v.  Wither.s,   756. 
Burdick  v.  Cheadle,  650,  651,   662,   663, 

702. 
Burdin  v.  Ordway,   1878. 
Burger  v.  Rhiney,   2086. 
Burgess     v.     American     Mortg.     Co., 
1839. 

V.  Kattleman,   1967. 

V.  Pollock,    200. 

V.   Rice,    437,    464. 
Burgett  V.  Taliaferro,   462. 
Burgie   V.  Davis,   1648. 
Burhans   v.    Monier,    1286,    1377. 
Burk   V.   Baxter,    1573. 

V.   Demp.ster,    1673. 

V.  Hollis,   1585. 
Burke  v.   Hale,   1777. 

V.  Hullett,    629,    665,    667. 

V.   Pierce,    783,    784. 

V.  Tindale,    1304. 
Burket  v.   Boude,    1252. 
Burkhardt   v.    Hopple,    1574. 

V.   Yates,   348,   350. 
Burkhart  v.    Tucker,   316,    1727. 
Burling  v.    Read,   1506,    1508. 
Burn  V.    Phelps,    1286. 
Burne  v.   Cambridge,   405,   1833. 

V.  Richardson,    1989. 
Burner    v.    Higman    &     Skinner    Co., 

635,   665,   670,   672,   696,    794. 
Burnes   v.    McCubbin,    856,    1096,    1367, 

1372,    1373,    1414. 
Burnett  v.   Bealmear,    2028,   2051. 

V.   Caldwell,    25,    308. 

V.  Lynch,    347,    518,    540,    894,    994, 
995. 

V.  Rich,  488. 

V.   Scribner,    1756. 
Burnham   v.   Best,    1824,    1890. 

V.   Dunklee,    1850. 

V.  Hubbard,    1142. 

V.  Martin,   1469. 

V.   O'Grady,    1313. 

V.   Roberts,   1841. 

V.  Waddell,    2066. 
Burns  v.  Bryan,   355. 

V.   Bryant,   14  49. 

V.  Cooper,  879,  1089,  1100,  1118, 
1654,  1658. 

V.  McAdam,    1432, 


Burns  v.  Nash,  1717. 

V.   Winchell.    1664. 
Burr  V.    Spencer,    365,    805,    867. 

V.   Stenton,    423,    521,    526. 

V.  Van   Buskirk,    2026. 
Burrell  v.   Lamm,   1792. 
Bur  ridge  v.  New  Albany  &  S.  R.  Co., 

2131. 
Burris  v.  Jackson,   68. 
Burritt  v.  Belfy,  1851. 
Burroughes  v.  Hays,   1088. 
Burroughs   v.    Clancey,    561. 
Burrow  v.   Sanders,   1959. 
Burrowes  v.  Cairns,  1638. 
Burrows   v.    Mickelson,    1438,    1447. 
Burruss  v.   Hines,   240. 
Burt  V.   Boston,    794. 

V.  Warne,    281. 
Burton  v.    Barclay,    90,    872,   903,    1311. 

V.  Dupree,    302,    1905. 

V.   Rohrbeck,    1736. 
Burwell  v.   Brodie,   1816,  1817. 
Bury  V.  Thompson,   85,   87,    1443,   1444. 
Busbin  V.  Ware,    2094. 
Busby  V.    Salisbury,    1826. 
Busch   V.    Huston,   462. 
Buschman  v.  Wilson,  1206,  1208,   1210. 
Bush,   In  re,   930,   931. 
Bush  V.  Babbitt,   195. 

V.   Colis,   889. 

V.  Havird,    1573,   1586,    1591. 

V.   Willis,    1908,     1914,     1929,    1930. 
Buskin    v.    Edwards,    1378. 
Buskirk   v.    Cleveland,    1970. 
Bussing  V.  Bushnell,   1253,    2027,   2048. 
Bussman    v.    Ganster,   265,    1022,    1032, 

1191,    1194. 
Buswell  V.  Marshall,   1965,   1975,  1976. 
Buszard  v.    Canel,    1019.    2025. 
Butcher  v.   Butcher,    146,   1512. 
Bute    V.    Thompson,    1232. 
Butler   V.    Baker,    1885. 

V.   Cowles,    1875. 

V.  Cushing,    607,    608,    1858. 

V.   Duckmanton,    147,    151. 

V.  Goundry,   561. 

V.   Kidder,    1215,    1216. 

V.   Manny,     342,     343,     1536,     1700, 
1711. 

V.  Meredith,   2135. 

V.  Nelson.     318. 

V.  Newhouse,    1229,    1242. 

V.  Rice,   1655. 

V.   Swinnerton,    525. 

V.   Threlkeld,   1684. 
Butt    V.    T^nett,    876,    1101,    1971,    1972, 
1973,   1976. 


TABLE  OF  CASES. 


2155 


Ibefbbences  abb  to  pages.] 


Butt  V.  Ellis,  1117. 

V.   Maier,    360. 
Butterfleld  v.   Baker,   1974,    1975. 

V.  Kirtley,  1495,  1740. 
Butterworth  v.  Bliss,  81. 
Butts  V.    Edwards,    2063,    2088. 

V.  Fox,    231,    244,    251,    730. 
Buxbaum    v.    Dunham,    1109. 
Buxton,   Ex  parte,    989. 
Buzzell  V.  Cummings,  1620. 


c. 


Cable  V.   Wellborn,   534. 

Cadby   v.    Martinez,    86. 

Cade  V.   Brownlee,   46. 

Cadenhead   v.   Rogers   &   Bro.,    1937. 

Cadmus    v.   Barney,    2060,    2072. 

Carlwalader  v.  Tindall,   2009. 

Cadwallader  v.   Lovece,    318. 

Caesar   v.   Rubinson,   1979,   1980,    1981. 

Caffln  V.    Redon,   580. 

V.   Scott,    1365. 
Cage  V.   Patton,    301. 

V.  Phillips,    295,    1846. 
Cag-giano   v.   Giallorenzi,    1532. 
Cahill    V.     Wyand,     1788,     1996,     2063, 

2065,    2084,    2087. 
Cahoon  v.    Kinen,    1880,    1890. 
Cahuac  v.  Scott,   486. 
Cain  V.   Gimon,    483. 
Cairns  v.  Llewellyn,    1467,    1520,   1526. 
Cairo    &    St.    L.    R.     Co.    v.    Wiggins 

Ferry  Co.,    1481,   1790. 
Caldcleugh     v.     Hollingsworth,     2062, 

2080,    2089. 
Caldecott  v.    Smythies,    1637. 
Caldwell  v.  Alsop,   1645,   1646. 

V.   Center,    167,    290. 

V.  Harris,    468. 

V.  Moore,    840. 

V.  Slade,    660. 

V.   Snow,    580. 
Caledonian  R.    Co.   v.   Sprot,   820. 
Caley  v.    Rogers,    1761. 

V.   Thornquist,     1515,    1516,     1535. 
Calhoun  v.  Atchison,  1035,  1040,   1068. 

V.   Perrin,     1355. 
California      Annual       Conference      v. 
Seitz,   1704,  1705,   1707,  1711. 

California    Dry    Dock     Co.     v.     Arm- 
strong,  2103,  2104. 
Callaghan  v.  Callaghan,   394. 


Callaghan  v.  Hawks,  78,  79,  1676,  1679. 
Callahan   v.    Loughran,    579,   609. 
Callan    v.   McDaniel,    1550. 
Callaway    v.     Phillips,    2050. 
Callen   v.  Hilty,   27. 
Calvert,    In    re,    1583. 
Calvert   v.   Bradley,   345. 

V.  Hobbs,    1000. 

V.  Joliffe,    1254,  1255. 

V.   Rice,    715. 

V.   Sebright,   524. 

V.  Simpson,    1893. 

V.   Stewart,    2057. 
Cambridge    Lodge    No.     9    v.    Routh, 

454,    1800,    1857. 
Camden  v.   Batterbury,  1874. 
Camden  Orphan  Soc.  v.  Lockhart,  174. 
Camden   &   A.   R.  Co.   v.   May's   Land- 
ing &   E.  H.   C.   R.   Co.,   205. 
Cameron   v.    Little,    1074,   1168. 

V.  McDonald,    1799. 

V.   Moore,    1825. 
Camley  v.    Stanfleld,   496,    497,   1779. 
Cammack  v.  Rogers,   1656. 
Camp  V.  Bates,  733. 

V.  Chas.    Thatcher  Co.,    1624. 

V.   McCormick,    1253. 

V.  Scott,  380,  508,  972,  1133,  1297, 
1298,  1363,  1378,  1381,  1387, 
1392,    1394. 

V.  West,    1908. 

V.  Wood,    30,    640,    656,    671. 
Campau  v.  Lafferty,  181,  299.  351,  471, 
474. 

V.  Mitchell,  1469,  1475,  1476. 

V.  Shaw.  219. 
Campbell  v.  Arnold,  2115. 

V.  Babcock,  91. 

V.  Baxter,  1396. 

V.  Bowen,  1931,  1945,  1963. 

V.  Cates,  909,  1825. 

V.  Hatchett,   1852. 

V.  Heflin,   1087. 

V.   Johnson,    1790. 

V.  Kuhn,  203. 

V.  Leach,  208,  404,  1018. 

V.   Lewis,   887. 

V.  Luck,  575. 

V.  McElevey,   1390,   1391,   1392. 

V.  Mallory,  1792,  1796. 

V.   Nixon,   1805,   1809. 

V.   Porter,    9,    607. 

V.  Portland  Sugar  Co.,  661. 

V.  Proctor,  114,  13o5. 

V.  Roddy,  1620. 

V.  Shields,  714,  1286. 

V.  Shipley,  17,  1381,  1382. 


2156 


TABLE  OF  CASES. 


[REFERENCES    ARE  TO  PAGES.] 


Campbell  v.  Wenlock,  570,  571. 

Campbell's  Estate,    In  re,    1133. 

Canada  Coal  Co.   In  re,   1488. 

Canadian  Bank  of  Commerce  v.  Lew- 
is, 1615. 

Canadian  Pac.  R.  Co.,  396. 

Canal  Elevator  &  Warehouse  Co.  v. 
Brown,  1535,  1536. 

Canale   v.    Copello,   937. 

Canandaigna  v.  Foster,  659,  689,  690, 
705. 

Canavan  v.  Stuyvesant,  632,  633,  665, 
666. 

Candler    v.    Mitchell.    420,    421,     1444, 

1459. 
Canfield  v.  Ford,  33. 
Canham  v.  Rust,  899,  1831. 
Cannavan  v.   Conklin.    655. 
Cannea  v.  Williams,  1942. 
Canning  v.  Fibush,  1419,  1490,  1495. 
Cannon  v.  Barry.  712,  733,  749. 

V.  Hare,  1575. 

V.  Hatcher,  2115. 

V.  Wilbur,   1291.   1403,  14 Do. 
Cannon  Brewery  Co.  v.  Nash,  124. 
Cantley  v.  Powell,  391. 
Cantrell  v.  Fowler,  575,  587,  588,  597. 
Cantwell  v.  Burke,   1238. 

V.  Moore,  1832. 
Capel  V.  Buszard.  1996,  2024. 

V.  Girdler,  91. 
Capen  v.  Hall,  635. 

V.  Peckham.  1565,   1575. 
Caperton  v.  Stege,  1604. 
Capital  Brewing  Co.   v.   Crosbie,   1733, 

1736. 
Capital   &  Counties   Bank  v.   Rhodes, 

88. 
Cardin  v.  Standly.  1785. 
Cardwell  v.  Masterson,  1959. 
Carey  v.  Bostwick,  1274. 

V.  Kreizer,   365,  560. 
Cargar  v.  Fee,  155. 
Cargill  V.  Thompson,  977,  1129. 
Carhart  v.  Ryder,  298,  299,  1144. 
Carithers  v.  Weaver,  462. 
Carley  v.  Lewis,  1128. 
Carlin  v.  Ritter,  1569,  1573,  1585,  1593, 

1594. 
Carling  v.  Purcell,  236,  240. 
Carlisle  v.  Blamire,  9D2. 

V.  Prior,  1727,  1731,  1796. 
Carlisle  Cafe  Co.  v.  Muse.  272. 
Carlsen  v.  Curran.  418. 
Carlson  v.  Koernet,  15. 
Carlton  v.  Bowcock,  485. 

V.  Williams,   159,    193. 
Carmack  v.  Drum,  1767. 


Carman  v.  Mosier,  399,  1872. 

V.  Plass,  1838. 
Carmen   v.   Alabama  Nat.    Bank,    1955, 

1956. 
Carmine  v.   Bowen,   1637. 
Carnalian  v.  Brown,   32. 
Carnarvon  v.  Villebois,   1325. 
Carnegie  Natural  Gas  Co.  v.  Philadel- 
phia Co.,  13S5. 
Carnes  v.   Hersey,  854. 
Carney  v.  Mosher,  236,  1407,  1630,  1642. 
Carns-Wilson,   In  re,    1545. 
Carondolet  v.   Wolfert,   1414. 
Carpenter  v.  Allen,  1495. 

v.  Colins,  117. 

V.   Cresswell,   342. 

V.   Griffin,   1670. 

V.  Jones,  1630. 

V.   King,  1137. 

V.  Parker,  534,  1298. 

V.     Pocasset    Mfg.    Co.,     360,     883, 
1695. 

V.    Shanklin,  1037,   1248. 

V.  Thompson,  467. 

V.  Tliornburn,  1680. 

V.  U.  S..  308.  310,  1857.  1865,  1867, 
1887. 

V.  Wilson,  1373,  1397. 
Carr  v.  Dodge,  1651.  1664. 

V.  Ellison,  1524. 

V.  Georgia  R.  Co.,  1574,  1577. 

V.  Lynch.  384. 

V.  Waugh,  11D9. 
Carraher  v.   Bell,   1390. 
Carrigan  v.  Stillwell,  674. 
Carrigg    v.     Mechanics'     Sav.     Bank, 

1858. 
Carroll  v.  Ballance,  88. 

V.   Finnegan,   1883. 

V.   Newton,   788. 

V.  Peake,  544,  546. 

V.  Read.  1291. 

V.  St.    John's   Catholic,    etc.,    Soc, 
348. 

V.   Williams,   384,   385. 
Carson   v.    Arvantes,    133o. 

V.  Broady,  16,  1502. 

V.  Crigler,  497. 

V.    Electric    Light    &    Power    Co., 
1949. 

V.  Godley,  519,  652. 
Carstairs  v.  Taylor,  647. 
Carswell    v.    Farmers    Loan    &    Trust 

Co..  985. 
Cartenbrook  v.  Wedderien,  1628. 
Carter  v.  Andrews,  1961,  1964. 

V.  Burr,  520,  521,  1165.  1166. 

V.  Carter.  1087.  1088. 


TABLE  OF  CASES. 


2157 


[REFERENCES    ARE  TO  PAGES.] 


Carter  v.  Collor,  1871,  1882. 

V.  Du  Pre,  194  3. 

V.  Hammett,  972,  973,  992. 

V.  Marshall,   178,  471,  480,  483. 

V.   Salmon,   2076. 

V.  Walters,  2042. 

V.  Warne,  981,  982. 

V.  Williamson,  361,  365. 

V.  Youngs,  840. 
Carterl  v.  Roberts,  107. 
Cartersville  v.  Lyon,  2D98. 
Cartledge  v.  Crespo,  369. 
Cartwright,  In  re,  744. 
Cartwright  v.  Gardner,  1369. 
Caruthers  v.  McBurney,  1369. 

V.  Williams,  1045,  1657,  1658,  1659. 
Carver  v.   Palmer,  28,  1133,  1569,  1572, 

1580,   1609,  1884. 
Carvick  v.  Blagrave,  897. 
Gary  v.  Whiting,   1203. 
Gary  Hardware  Co.   v.   McCarty,   24. 
Case  V.  Davis,  1248,  1250. 

V.  DeGoes,  1121. 

V.  Hart,  1652,  1662. 

V.   Minot,   o3D,    827. 

V.    Porterfield,    1732,   1796. 

V.  Weber,  21. 
Casey  v.   Gregory,   494,   495,    496,   1117, 
1166. 

V.  Hanrick,  437,  501. 

V.  King.  45,   1737,   1807. 
Cass  V.   Shewman,   1145,   1146. 
Cass    County    Supervisors    v.    Cowgill, 

333. 
Cassaday  v.  Hammer,  848. 
Cassard  v.  Thornton,  1288. 
Casselberry  v.    Forquer,   1852. 
Gassily  v.  Rhodes,  1643,  1644. 
Castagnette  v.  Nicchia,  575. 
Castleman  v.  Belt,  1116. 

V.   Du  Val,   361,  1035,  1041,  1042. 

V.  Harris,   1933. 
Castner  y.  Slater,  1837. 
Castro  V.  Gaffey,   281,  349. 
Caswell  V.   Districh,   186,   189,   1631. 
Catasauqua  Bank  v.  North,  1565. 
Gate  V.  Blodgett,   298,   562,  565. 

V.  Schaum,   2054,   2055,,   2085,   2088. 
Catlin  V.  Barnard,  345. 

V.  Decker,  15,  16,  17,  '516. 

V.  Grissler,  1903. 

V.   Hayden,   2116. 

V.  Wright,   1395. 
Catling  V.  King,  385. 
Caton  V.  Caton.  386. 
Cattley  v.  Arnold,  122,  123,  139,  699. 
Caulk  V.  Everly,  370,  584. 
Cavalier  v.  Pope.  '594,  662,  702. 


Cavanaugh  v.  Clinch,  1467,  1472,  1474, 
1478. 

V.  Iowa  Beer  Co.,  369. 
Cecil  V.  Gunthcr,  1934. 
Center  v.  Everard,  1611. 
Central  Appalachian  Co.  v.  Buchanan, 

588.  1237. 
Central  Bank  v.  Peterson,  1250. 
Central    Bank    of    Troy    v.    Heyedorn, 

1083. 
Central  Land  Co.  v.  Calhoun,  2050. 
Central  Mills  Go.  v.  Hart,  7,   27,   1857. 
Central   R.   Co.   v.  English,   2125,  2126. 

v.  Valentine,  2126. 
Central   Transp.  Co.  v.  Pullman's  Pal- 
ace Gar  Co.,   202,  203,   234. 
Centre    Creek    Min.    Co.    v.    Franken- 
stein, 19,  20,  183,  1860. 
Cesar  v.  Karutz,  562. 
Chadbourn  v.   Rahilly,  417. 
Chadwick  v.   Parker,   1378,   1379,   1382, 
1755,   1769. 

V.  Spargur,  1814. 

V.  Woodward,   559,  60'3,  1227,  1238. 
Chaffe  V.  Benoit,  235. 
Chaffln  v.  Brockmyer,  509. 
Chalfin  V.  Malone,  32S. 
Chalifoux  v.  Potter,    1606,   1624. 
Challoner  v.    Robinson,    2008. 
Chalmers  v.  Smith,   114,   716,   720,  721, 

724,    725,    727,    729,    747. 
Chamberlain  v.  Child's  Unique   Dairy 
Co.,    730. 

V.   Donahue,     112,     113,     166,     167, 
1887. 

v.   Dunlop,   353,   876,   901,  1326. 

V.  Godfrey,   1204,   1210. 

v.   Letson,    268. 
Chamberlin   v.    Brown,    1749. 
Chambers,    In   re,    980. 
Chambers  v.  Foss,  1492. 

V.  Hoover,    1792. 

V.  Irish,    297,   314,   439. 

V.   Kingham.    89. 

V.   Mason,    1088. 

V.  Mattingly,   1236. 

V.   Pleak,   174.   486. 

V.  Ross,    1172,    1492,    1876,    1887. 
Chamblee  v.   McKenzie,   1952. 
Champ    Spring    Co.    v.    B.    Roth    Tool 

Co.,    716,    1593. 
Champernoon   v.  Gubbs,    1826. 
Champion  v.   Shumate,   1921. 
Chancellor  v.   Law,   1943. 

V.  Webster,    2032. 
Chancey  v.   Smith,    13,   1273,    133.3. 
Chandler  v.  Doulton,  2082,   2086. 


2158 


TABLE  OF  CASES. 


[EEFKEENCES    AliE  TO  PAGES.] 

Chandler  v.  Hinds,   1335,   1337. 


V.  Kent,   1779. 

V.  McGinning-,    1377.    1529,    1533. 
V.   Oldham,    1696. 

V.   Thurston,   113,  1636,  1655,   1662. 
Channel  v.  Merrifield,   72. 
Chapel  V.   Hull,    708,   730,    787. 
Chapin  v.  Billings,    1730. 

V.  Foss,   1122,   1502,    1829,    1880. 
Chaplain    v.    Southgate,   536. 
Chapman  v.    Beecham,    1989. 
V.   Bluck,    266,    375. 
V.  Boardman,    28. 
V.   Foss,   1877. 
V.   Gray,    282,    866. 
V.   Harney,    1378,   1379. 
V.  Kirby,     832,     834,     1377,     1379, 

1414,    1769. 
V.  McGrew,   1109. 
V.   Smith,    420,    889,    902, 
V.   Tiffany,    1424,    1437. 
V.  Towner,    126,    376,    380. 
V.  Wright,  1377,   1498,    1499. 
Charles  v.  Byrd.    366,   929,   931. 

V.  Davis,    1663. 
Charless    v.    Froebel,     962,     963,     965, 

1034,   1124. 
Charleston  v.  Page,   2  82. 
Charleston     City     Council     v.     Price, 

1987. 
Charlton    v.     Columbia    Real    Estate 

Co.,  378,  379,   383,  388. 
Charnley   v.   Hansbury,    1166. 
Chase  v.   Dearborn,   494. 
V.  Hall,   825. 

V.  Hazleton,   707,    712,    713. 
V.  Knickerbocker   Phosphate   Co., 

1394. 
V.  McDonnell,    1648,    1652. 
V.  New  York  Insulated  Wire  Co., 

1575,   1576. 
V.  Weston,    904. 
Chatard   v.   O'Donovan,    332,    333,    335, 

336. 
Chatauqua    Assembly    v.    Ailing,    803, 

805,    812,   938,    1370,    1393. 
Chatterton  v.   Fox,   1291. 
Chaude  v.    Shepard,    1979,    1980. 
Chauntler  v.   Robinson,   628. 
Chaworth  v.   Phillips,    891. 
Cheairs  v.   Coats,   1165. 
Cheatham  v.   Plinke,   1396,    1604,  1606. 
Cheek  v.    Preston,   1762. 
Cheeseborough   v.    Green,    627. 
Cheetham  v.  Hampson,   748. 
Cheever  v.   Pearson,   102,   104. 
Cheiney  v.  Langley,  522. 


Cheney  v.  Bonnell,  1403,  1627,  1641. 
V.  Newberry,    380. 
V.  Woodruff,    1118. 
Cherokee    Strip    Live    Stock    Ass'n    v. 

Cass  Land  &  Cattle   Co.,   459. 
Cherry  v.   Heming,   274. 
Chesapeake    Brew.    Co.    v.    Goldberg, 
78L 
V.   Mt.  Vernon  Brew.   Co.,  934. 
Chesebrough     v.     Pingree,     285,     346, 

351,    1192. 
Cheshire   v.   Barrett,    197. 
Cheshire    Lines    Committee    v.    Lewis 

&  Co.,   1435. 
Chesley  v.   Welch,    1636. 
Chester  Emery  Co.  v.  Lucas,  33. 
Chesterman  v.   Gardner,   866. 
Chestnut   v.   Tyson,   212,  218,   533,   535, 

538,  540. 
Chestnut    St.   Nat.   Bank  v.    Crompton 

Loom  T^'orks,    2064. 
Chetham    v.   Williamson,   31. 
Chettle  V.  Pound,   429,   514. 
Cheuvront  v.   Bee,   1091,  1843. 
Chew   V.    Lucas,    550. 
Chibborne's   Case,    870. 
Chicago  V.  O'Brennan,    789,   790. 

V.  Peck,    1478. 
Chicago     Attachment     Co.     v.     Davis 
Sewing    Mach.    Co.,     255,     954,     955, 
972,    973. 
Chicago  B.  &  Q.  R.  Co.  v.  Skupa,  309, 

316,    1418,    1727. 
Chicago    Deposit    Vault    Co.     v.    Mc- 

Nulta,    220. 
Chicago   Legal  News  Co.   v.    Browne, 

1243. 
Chicago,  M.   &  St.  P.  R.  Co.  v.  Nield, 

1784. 
Chicago,  P.  &  St.  L.  R.   Co.  v.  Doyle, 

670. 
Chicago      Theological      Seminary      v. 

Chicago  Veneer  Co.,   1496. 
Chicago    Warehouse    &    Mfg.     Co.    v. 

Illinois   Pneumatic   Tool    Co.,    533. 
Chicago  &  A.  R.  Co.  v.  Smith,  2127. 
Chicago  &  E.  L  R.  Co.  v.  Clapp,  2136. 
Chicago  &  N.  W.  R.  Co.  v.  Miller,  259. 
Chicago   &   W.    M.    R.   Co.    v.   Linard, 

38,    184,   187,    1654,    1659,    1666. 
Chiera  v.  McDonald,  1390. 
Chighizola  v.   Le  Baron,  215. 
Child  V.   Chappell,    483. 

V.  Stenning,    540. 
Childers  v.  Lee,  225,  381. 

V.   Talbott,    225,    234,    237. 


TABLE  OF  CASES. 


2159 


[REFERENCES 

Childers  v.   Verner,    2124. 
Childs   V.    Clark,    1107. 

V.   Hurd,    1586. 

V.   Skillin,    78. 
Chilton   V.    Niblett,    307,    309.    310. 
Chipman   v.    Emeric,    774,    1377. 

V.   Martin,    2032. 
Chipperfield  v.    Carter,    379. 
Chlsholm   V.   Lewis,   2069. 

V.  Toplitz,    214. 
Chism  V.  Thomson,   1951. 
Chisolm   V.    Kilbreth,    1303. 
Chissom  v.  Hawkins,   1971,   1975. 
Chittenden    v.    Witbeck,    1557. 
Chretien    v.    Doney,    1515,    1531,    1S06. 
Christ   V.  Diffenbach,   370. 
Christian   v.    Dripps,    1563. 
Christie   v.    Barker,    1110,    1819. 

V.  Blakeley,    294. 

V.  Clark,    468. 
Christie's  Appeal,   1371. 
Christopher     v.     Austin,     1157,     1160, 
1161,    1165,    1893. 

V.  Nat.    Brew.   Co.,    263,    287. 
Christy    v.    Pulliam,    490. 

V.   Tancred,   1469,   1471,  1482,  1492. 
Chumar  v.  Melvin,    1771. 
Chung  Tow  V.  Hop   Chong,  290,   1461, 

1751,   1791. 
Church  V.  Bloom,   1946,   1963. 

V.  Brown,    385,    395,   396,    918,    921, 
922,    923. 

V.  Griffith,    1581. 

V.  Hempstead,    1382. 

V.  Seeley,    1071. 

V.  Wright,   18. 
Churchill     v.     Lammers,     1312,     1831, 
1833. 

V.   More,   1604. 
Churchward  v.  Ford,  1855,  1859,  1877, 

1886,    1888. 
Churchwardens     of     St.      Saviour     v. 

Smith,    900. 
Cibel  V.   Hill,    1157,   1267,    1290. 
Cilley   V.   Hawkins,    549. 
Cincinnati  v.  Walls,  1858. 
Cincinnati    College    v.    Yeatman,    851. 
Citizens'  Sav.  Bank  of  Olin  v.  Woods, 

1937,     1940,    1941. 
Citron   v.   Bayley,   646,  704. 
City    of   Philadelphia  v.    Reeves,    345. 
City   Power  Co.  v.   Fergus  Falls  Wa- 
ter Co.,    1302. 
Clampltt  V.  Kelley,  62,  174. 
Clancy,    In    re,    1189. 
Clancy  v.   Byrne,    656,  659,    663,   796. 
Clanton  v.  Eaton,  1912. 


ARE  TO  PACES.] 

Clapp   V.    Boston,    21. 

V.  Cable,    505,    1479,    1747,    1751. 
Claridge  v.   Mackenzie,    485,   514. 
Clark    V.    Abbott,   413. 

V.  Aldrich,   992. 

V.   Babcock,    584. 

V.   Banks,     1638. 

V.   Barnes,    55,    56,   1321,   1725. 

V.   Butt,    5!4,    547. 

V.  Calvert,   2017. 

V.  Clark,   387,    393,    396,   799. 

V.   Clark's    Estate,    1867. 

V.  Coughlan,    912,    917. 

V.  Dobbins,   1936. 

V.   Everly,    1355,   1758,    1782. 

V.   Ford,    1237. 

V.  Fraley,    1016,    2002. 

V.  Gaskarth,    2017. 

V.   Gerke,    290,    620,    621.    774,    780. 

V.  Gordon,    1144. 

V.  Greenfield,  941. 

V.   Haynes,   1957. 

V.  Hill,    1563. 

V.  Holden,    713, 

V.  Hyatt,   159. 

V.  Johnson,    904. 

V.   Jones,    1369,   1370. 

V.  Keliher,    1442,    1445,    1457. 

V.  Lindsay,    607. 

V.  Midland     Blast    Furnace     Co., 
1232. 

V.  Mitchell,    1244. 

V.  Overseers   of   St.  Mary,    332. 

V.   Rannie,    1636. 

V.  Rhoads,   140,    1420. 

v.   Roystone,   784. 

V.   Serricks,    350. 

V.   Smith,    130,    245,    1422,    2116. 

V.  Snow,    1804. 

V.   Tukey   Land   Co.,   153. 

V.  Vannort,    336. 

V.   Wheelock,   118,    1433. 
Clarke  v.   Beck,   18. 

V.   Byne,    1828. 

V.  Charter,  1850. 

V.  Clarke,  491. 

v.  Cobb,  186,  1079,  1654,  1655. 

V.   Coolidge,    847. 

V.   Coughlan,   1107. 

V.  Cummings,   715,   1386. 

V.  Fuller.  385. 

V.  Harvey,  785.  1639. 

v.  Holford,  1042.  2046. 

V.  Howland,   1605. 

V.  Merrill,   282,   1515.   1526,   1535. 

V.   Millwall    Dock    Co..    2010. 

V.   Moore,   376,   378,   1327. 


2160 


TABLE  OP  CASES. 


Clarke  v.  Spaulding', 
1244,    1245. 

V.  Welsh,   632,   639. 

V.   Westrope,   786. 
Clarkson    v.    Scarborough,    1072. 

V.  Skidmore,  420. 
Clator  V.   Otto,   1332,   1745. 
Clavering  v.   Clavering,   710. 

V.   Westley,   1827. 
Clay  V.  Wren,  324 
Clayton  v.  Ashdown,  196. 

V.  Blakey,  130,  131,  247. 

V.  Burtenshaw,  372,  377. 

V.   Illingworth,   394. 

V.  Leech,  541,  1001. 

V.  McCay,  1502. 

V.   McKinney,   1089,  1090. 
Clayton's  Case,    52. 
Clearwater  v.  Rose,   44. 
Cleary  v.   O'Shea,    475,   479. 

V.  Waldron,  1786. 
Clegg  V.  Edmonson,  1556,  1357. 

V.  Fishwick,  1556,  1557. 

V.  Hands,  809,   889. 
Cleland  v.  Kelly,  1444. 
Clem  V.  Martin,  1658. 
Clemence   v.    Steere,    707,    708. 
Clemens  v.  Broomfleld,  274,  1329. 

V.   Knox,    845. 

V.   Murphy,  1598,  1599. 
Clement  v.  Wheeler,  737. 

V.  Youngman,  32. 

V.  Young-McShea  Amusement  Co., 
286. 
Clements  v.  Hall,  1557. 

V.  Matthews,  1350,  1630. 

V.   Richardson,   1169. 

V.  Welles,  811,  824,  1002. 
Clementson   v.    Gleason,    803. 
Clemm  v.  Wilcox,   501,   516. 
Clemson  v.  Trammell,  741,  744,  1613. 
Clendenning  v.   Lindner,  1535. 
Clenighan  v.   IiIcFarland,    583. 
Clermont  v.   Tashburgh,   395. 
Cleve  V.  Mazzoni,   804,  -1390. 
Cleveland  v.  Boice,  291. 

V.  Bryant,  393. 

V.  Spencer,  845. 
Cleveland    C.    C.    &   St.   L.    Ry.    Co.    v 
Mitchell,    539. 

V.  Wood,  955,  998,  999. 
Cleveland    Co-operative    Stove    Co.    v 

Wheeler,   793. 
Clevenger  v.  Dunaway,  2070.   2086. 
Cleves  V.  Willoughby,  365,  444,  578. 
Click  V.  Stewart,  1949. 


[REFERENCES    ARE  TO  PAGES.] 

49,     1238,     1239, 1  Clifford  v.  Atlantic  Cotton  Mills,  677, 


G95,    702. 
V.  Beems,  1995,  2006,  2024. 
V.  Dam,  688. 
V.  Gressinger,  318,  1674. 
Clift  V.  Stockdon,  282. 
Clifton   V.   Montague,    556,   581. 
Climie  v.  Wood,  1582. 
Clinan  v.  Cooke,  385. 
Cline  V.  Black,   952. 
Clinton  v.   Shugart,   839. 
Clinton   Wire    Cloth   Co.    v.    Gardiner, 

1472,  1473,   1478,   1481,  1482. 
Clogston  V.  Martin,  561. 
Clothier  v.  Braithwaite,  2007. 
Cloud  V.   Needles,    1255. 
Clough  V.  Hosford,  1866,  1867. 
Clowes  V.  Hughes,  327. 
Cluett  V.  Sheppard,  28,  1153. 
Clulow's  Estates,  1076. 
Clun's  Case,  1015,  1037,  1038,  1042. 
1344,  1071,  1072,  1073,  1074,  1083. 
Clyde  V.  Richmond  &  D.  R.  Co.,  985. 
Clyne  v.  Helmes,  583,   650,  659,  662, 

700. 
Coakley  v.  Chamberlain,  98,  399,  538. 
Coale    V.    Hannibal    &    St.    J.    R.    Co., 

738,  747,  2103. 
Coan  V.  Mole,   232,  246. 
Coari  v.  Olsen,  865,  866. 
Coates  V.  Cheever,  709. 
Coatsworth,    In    re,    1543,    1694,    1697, 

1708,   1709. 
Coatsworth  v.  Ray,  1489. 
Cobb  V.  Arnold,  445,  446,  1859. 
V.  Boston,  2131. 
V.  Johnson,   889. 
V.   Kidd,   1879,    1887. 
V.  Lavalle,  2134. 
V.   Stokes,  1419,  1499. 
Cobel  V.  Cobel,  1119. 
Coburn  v.  Goodall,  887,  987,  1174,  1175, 
1318. 
V.  Harvey,  1987. 
V.  Palmer,  48S,  1778,  1779,  1807. 
Cochran  v.  Pew,  1369. 

V.  Philadelphia  Mort.  &  Trust  Co., 

1390,   1391,  1753. 
V.   Reich,  1756. 
V.   Ward,   260. 
Cochrane  v.  Justice  Min.  Co.,  396. 
V.   Robinson,    354. 
V.  Tuttle,  35. 
Cockburn  v.  Quinn,  804,  812. 

V.  Watkins,  2094. 
Cocker  v.   Musgroove,   1253. 
Cockerline  v.  Fisher,  1404,  1759. 


TABLE  OF  CASES. 


2161 


[KEFERENCES    ARE  TO  PAGES.] 


Cocks  V.  Darson,  219. 
V.  Foley,   1826. 
V.   Izard,   462. 
Cockson  V.  Cock,  786,  889. 
Coddington  v.    Dunham,   527,   745. 
Codman    v.    Hall,    303,    347,    405,    852, 
1833. 
V.  Jenkins,  445,  1880. 
V.   Johnson,    848.    849. 
Cody  V.  Quarterman,  139,  234,  250,  255, 

1422. 
Coe  V.  Cassidy,  1147. 
V.   Clay,   544,    546. 
V.  Griggs,  249. 
V.  Haines,  1816. 
V.    Hobby,    1055,    1058,    1059,    1313, 

1323,   1324.   1327,   1328. 
V.   Vogdes,    1138. 
V.  "Wilson,  1631. 
Coey  V.  Pas.coe,  898. 
Coffee  V.  Smith,  375. 
Coffey  V.  Hunt,  873. 
Coffin  V.  Brooklyn,  521. 
V.   Lunt,    1422. 

V.  Thalman,  584,  767,  771,  853,  893, 
899,   1702,  1703,   1734. 
Coffman  v.   Huck,   308,   1,S67. 
Cofran  v.  Shepard,   115,   116,  1494. 
Coggan  V.  Warwicker,   107,   1864. 
Coghil  V.  Freelove,  1132. 
Cogley  V.  Brown,  1397. 
Cohen   v.    Afro-American   Realty   Co., 
1370. 
V.  Brossevitch,  1786. 
V.  Broughton,  1988. 
V.  Candler,    1920,   1927,   1935,   2048, 

2050. 
V.    Dupont,    1284. 
V.  Green,  127,  138. 
V.  Suckno,  422. 
V.    Tannar,    525,    899. 
V.  Witteman,  724,  1349,  1575. 
Cohn  V.  Hill,   758,   778,   780. 
V.  May,  793. 
V.    Norton,    544,   545,    548,    549,    530, 

551. 
V.    Smith.     1945,    1960,    1961,    1962, 
1963,  1964. 
Colt  V.  Horn,  2076. 

V.  Braunsdorf,  1059. 
V.  Planer.  951,  1888. 
Coke  V.  Gutkese,  562,  565,  632,  654. 
Coker  v.  Britt,  1990,  1993. 
Colburn  v.  Morrill,   1160,   1267,  1269. 
Colclough   V.   Carpeles,   49,   376. 

V.  Mathis,  1936. 
Colderaro    v.    Kempner,    1980. 


Cole  V.   Kagle,   1296. 
V.   Gill,   308. 
V.  Green,  717. 
V.  Hester,   1652. 
V.  Johnson,  1377,   1380,  1758. 
V.  I.ake  Co.,  103. 

V.   McKey,   575.   629,  640,   650.  653. 
V.  Maxfield,  450. 

V.  Patterson,  1065,  1080,  1173,  1832. 
V.  Sanford,  1158,   1484. 
Cole's  Case,   889. 
Colean  Mfg.  Co.  v,  Jones,  1953. 
Colebeck  v.  Girdlcrs'  Co.,  575,  628. 
Coleman  v.  Bunce,  1843. 

V.  Central  Trust  Co..  596. 

V.     Fitzgerald     Bros'     Brew.    Co., 

1477,  1492. 
V.  Hoklen,  2125. 
V.  Reddick,  1270. 
V.  Sherwyn,  518. 
V.  Siler,  1941,   1942,  1913,   1947. 
Coles  V.  Marciuand,  2027. 

V.  Peck,  1545,  1673,  1678,  1696. 
Colhoun  V.   Wilson,   361,    752. 
Collamer  v.  Farrington,  366. 

V.  Kelley,  88,  93,   909. 
Collamore  v.  Gillis,  1573,  1575,  1377. 
Collender    y.    Smith,    971,    1092,    1757, 

1772. 
Collet  V.  Jacques,  1826. 
Collett  V.  Curling,  1891. 
Colley  V.   Streeton,  770,  771. 
Collier  v.  Collins,  637. 

V.  Cunningham,  1641,  1656. 
Collingnon,  In  re,  1189. 
Colling  V.    Treweek,  1446. 
Collingwood  v.   Row,   1687. 
Collins   V.    Barrow,    557,   573,    1892. 
V.  Canty,    1463. 
V.   Crownover,    399,    1632. 
V.   Fillingham,    594. 
V.   Harding,    1010,    1068,    1101. 
V.   Hasbrouck,    909,    942. 
V.   Karatopsky,      594,      607,      1261, 

1268,    1372,    1846. 
V.  Lewis,    523,   529,    1844. 
V.   MacTavish,     207,     208,     210. 
V.   Pratt,    975,    994. 
V.   Taylor.    2049. 

V.  Whigham,    314,   315.    1087,    1902, 
1903. 
Collins'  Appeal.  1249.   2039. 
Collison   V.   Lettsom,    891. 
Collyer  v.   Collyer,    1887. 
Colorado   Fuel    &    Iron    Co.    v.    Pryor, 

406. 
Colored  Homestead   Sz   Building  Ass'n 
V.  Harvey,  318,  1718. 


L.  and  Ten.  136. 


2162 


TABLE  OF  CASES. 


[BEFEKENCES    ARE  TO  PAGES. 1 


Colpitts  V.    McCulloug-h,   1082,    2033. 
Colt  V.  Eves,  1739,  1808,   1816. 
Coltness  Iron  Co.  v.   Black,  1018. 
Colton   V.    Gorham,    1125,    1330. 
Columbia    Bank    v.    Galloway,    1157. 
Columbia    Brew.    Co.    v.    Miller,    1444, 

1490. 
Columbia   Iron   Co.'s  Appeal,   1082. 
Columbia   Theatre   Amusement  Co.    v. 

Adsit,  1052. 
Colville    V.    Miles,    1631. 
Colwell  V.   Peden,   1098. 
Colyer   v.    Speer,    1252. 
Coman  v.  Alles,  694. 
Combs  V.  Midland  Transfer  Co.,  1447. 
Comer  v.  Sheehan,   410,  416,   873,   1116. 
Comfort  V.    Duncan,   1627,   1637. 
Commagere  v.   Brown,    303. 
Commercial    Bank    v.    Pritchard,    282, 

866,    958. 
Commercial    Bldg.    &    Loan    Ass'n    v. 

Robinson,    888. 
Commercial    Bulletin    Co.,    In   re,    981. 
Commercial   Hotel    Co.   v.    Brill,    1344. 
Com.    V.   Colg-an,   2052,    2068. 

V.   Contner,  1039,   1049,    1061,  1250, 

1998. 
V.  Haley,    1505,    1513. 
V.  Lelar,   2022. 
V.   McNeile,    1536. 
V.   Rigney,    1664. 
V.  Sheriff.    66,    85. 
Compton   V.    Ivey,   1733. 
Comstock  V.    Cavanagh,   875. 
Comyn   v.    Kyneto,    32. 
Concord   Bank    v.    Bellis,    200. 
Conde  v.  Lee,   1567. 
Condon  v.    Barr,   1481,    1483. 

V.  Marley,  877. 
Cone   V.   Woodward,    1382,    1758. 
Coney  v.  Brunswick  &  F.   Steamboat 

Co.,  2099. 
Confiscation   Cases,   1712. 
Conforti  v.   Romano,    1755. 
Congdon  v.   Brown,  1442,   1445. 

V.  Cook,    9. 
Conger    v.    Duryee,     855,     1387,     1398, 
1400. 
V.   Ensler,    1694,    1706,    1707,    1711, 
1894. 
Congham  v.   King,   771,   917,  986,  1131. 
Congleton    v.   Pattison,    891,   970. 
Congregational     Soc.     of     Sharon     v. 

Rix,   990,    1131. 
Congregational     Society     v.    Walker, 
451. 


Congreve   v.    Morgan,   688. 

V.   Smith.    68S. 
Conkey    v.    Hart,    1988. 
Conklin    v.    White,    298,    299. 
Conkling  v.   Tuttle,    584,    1327,   1342. 
Conley    v.     Conley,     1762,     1786.     1790, 
1792. 

V.   Schiller,    1298. 
Conlon   V.   McGraw,    1282. 
Conn  V.  Tonner,    1677,   1689. 
Connah   v.   Hale,   2008,    2080,    2088. 
Connecticut     Mut.     Life     Ins.     Co.     v. 

U.    S.,    1288. 
Connecticut    Spiritualist   Camp    Meet- 
ing  Ass'n    V.    East    Lyme,    840. 
Connell  v.    Chambers,   1748. 

V.   Power,    1374. 

V.  Richmond,   1651. 
Conner    v.    Coffin,    1585. 

V.   Elliott,    1938,    1971,    1973. 

V.   Jones,   1163,    1708. 

V.   Schrickor,    1659. 
Connerly  v.  Inman,    1098. 
Connolly   v.   Coon,    1044. 

V.  Giddings,     420. 
Connor  v.   Bernheimer  527. 

V.   Bradley,    1379. 
Connors  v.   Clark,    1435,    1522. 

V.   Withers,    1548. 
Connoughton    v.    Bernard,    1067,    1174. 
Conny's   Case,    199. 
Conover   v.    Smith,    893,    1702,    1711. 
Conquest   v.   Ebbetts,    769,   770. 
Conrad    v.    Morehead;    540. 

V.   Saginaw    Min.    Co.,    1572,    1574. 

V.   Smith,    978. 
Conrad  Seipp  Brew.  Co.  v.  Hart,  1302. 
Consolidated    Coal    Co.   v.    Savitz,    738. 

V.  Schaefer,   1460,    1750. 

V.   Peers,    33,    960,    962,    987,    990, 
993,  1131,   1823. 
Consolidated     Hand-Method     Lasting 

Mach.   Co.   V.  Bradley,   592. 
Consolidated  Land  &  Irr.  Co.  v.  Haw- 
ley,   1652,   1976. 
Constant  v.  Abell,   1493. 

V.   Barrett,    322. 
Constantine  v.    Wake,   1024,    1127. 
Consumers'    Ice     Co.     v.     Bixler,     961, 
963,   987,    989,   1032,   1034,    1123,   1131. 
Conway    v.    Kennedy,    1808. 

V.   Starkweather,   1472,    1473,  1478, 
2039. 
Conwell   V.   Jeger,    407. 
Cooch  V.  Goodman,   274. 
Coogan    V.    Parker,    1192,    1193,    1194, 
1244. 


TABLE  OF  CASES. 


2163 


fREFEREKCES 

Cook    V.    Anderson,    1191,    1236,    1286 
1290,   1335. 
V.   Arundel,     892. 
V.   Bisbee,    107. 
V.   Brig-htly,    1110,    116S. 
V.   Champlain     Transp.     Co.,     738 

739,    740,    1612,     2102. 
V.   Cook,    112,    712. 
V.  Creswell,    1442,    1443,    1457. 
V.   Farrah,    179. 
V.   Gilbert,    1802. 
V.   Guerra,    1083,   10S6,   1116. 
V.   Humber,    35. 
V.  Johnson,    414. 
V.  Jones,    917,    1550. 
V.   Klenk,    37. 
V.  Medbury,    1888. 
V.  Moylan,    873. 
V.   Norton,   328. 
V.   Parker,   1174. 
V.   Penrod,    1357. 
V.  Redman,   231. 
V.  Soule,    587,    589,    596,   597,   1237, 

1843,    1846. 
V.  Transp.   Co.,    1581. 
V.  Waugh,    394. 
V.  Webb,   1879. 
V.  Whellock,    440. 
Cooke   V.   Booth,    1525. 
V.  Brice,    1370. 
V.   England,  586,  591. 
V.  Norris,    84. 
V.  Wise,    1062. 
Cooks  V.   Bellamy,   424. 
Cool    V.    Peters    Box    &    Lumber    Co., 

723. 
Cooley  V.  Collins,  964. 

V.  Perry,    2019. 
Coombe   v.  Green,   773. 
Coomber  v.   Howard,   1033. 
Coomler  v.    Hefner,    132. 
Coon   V.   Brickett,    1391. 
Cooney  v.  Murray,  370. 
Coope  V.   Kollstade,  1280. 
Cooper  V.  Adams,  117,   152,  1425,  1426, 
1600. 
V.  Baker,    1928. 
V.   Blandy,   451,  473. 
V.   Crabtree,    2099,    2101. 
V.  Fretnoransky,    1056,    1059. 
V.   Gambill,  80,   81,   1733,  1734. 
V.  Johnson,    1570. 
V.  Joy,    1529. 
V,  Kimball,    1904. 
V.  Lawson,    649. 
V.   McGrew,    1651. 
V.   Robinson,    50,    2073,    2108. 


ARE  TO  PAGES.] 

Cooper  V.   Sm.ifh,  437. 
Coor    V.    Smitli,    1643. 
Copeland   v.   Goldsmith,    1048. 
V.  Luttg-en,    1214,    1217. 
V.   Stephens,    48.    987,    989,    1823. 
V.  Watts,    1328. 
Copland  v.  Laporte,   345. 
Copley  V.  Balle,  656,  657. 
Copp  V.   Aldridge   &   Co.,   650. 
Copper  V.   Siblej'.    469. 

V.  Wells,   1711. 
Copper  Mining  Co.   v.   Beach,  1526. 
Coppinger  v.   Armstrong,    781,   783. 
Corbett    v.    Cochrane,    65,    137. 

V.   Plowden,    411,    413. 
Corbitt   V.    Reynolds,    1960. 
Corby    v.     Brill    Book     &     Stationery 
Co.,   1452,    1455. 
V.  McSpadden,     57,    62,     102,     104, 
1425. 
Cordes  v.  Miller,  618,  765. 
Corey  v.   Bishop,    788,    1583. 
Corinthian     Lodge     v.      Smith,     1244, 

1245. 
Corle  V.  Monkhouse,    1638. 
Cormel  v.  Lisset,  1822. 
Cornelissens  v.  Driscoll,  1295. 
Cornelius   v.    Rosen,    1074. 
Cornell  v.   Hayden,   464. 

V.   Lamb,    1014,    1081,   1987. 
V.  Vanartsdalen,    582,    1693. 
Corning  v.  Beach,   1416. 

V.   Troy     Iron     &     Nail     Factory, 
735. 
Cornish    v.    Clelfe,    761. 
V.   Searell,    181. 
V.   Strutton,  716. 
V.   Stubbs,   118,    895.   1672. 
Cornock  v.   Dodds,    1209. 
Cornwell  v.   Kuykendall,   1909. 

V.  Leverette,   2048. 
Core  V.  Greenwald,  1980. 
Corporation   of  London  v.   Riggs.   273. 
Corre   Hotel   Co.    v.    Wells   Fargo   Co., 

1551. 
Corrigan  v.  Chicago,  495,  1181,  1182. 

V.  Riley.  454. 
Corse  V.  Corse,  206. 
Cort  V.  Planer.  1490. 

Corns  V.  ,  535. 

Cory  V.  Brlstow,   26,  34. 

Cosgrave  v.   Hammill.    781,   1701,   1711, 

Cosgrlff  V.  Foss,   1692. 

Cosgrove  v.  Troescher,  1565. 

Cosper  V.  Collinge,  810. 

Costigan  v.  Ha-tler,  394. 

Costrike   v.    Mason,    125. 


2164 


TABLE  OF  CASES. 


[R<3FERENCES 

Cotesworth  v.  Spokes,  1394. 
Cotsworth   V.   Betison,    2060.    2D72. 
Cottee  V.   Richardson,    45,    1318. 
Cottle  V.  Sullivan,  73,  1752. 
Cottrell  V.  Moran,  1778. 
Couch  V.  Crawford,  2019. 

V.   Davidson,    1928,    1937,    1939. 

V.   Welsh,  1573,   1574,    1577. 
Coudert  v.  Cohn,   285. 
Coughanor   v.    Bloodgood,    506. 
Cousrle  v.  Densmore,  1283. 
CouFson  v.  Whiting,  297,  300,  1227. 
Coulter  V.   Norton,   531,    821,   538,    831, 

1282. 
Countess  of  Shrewsbury's  Case,  724. 
Coupe  V.  Piatt,  629,  665,  666,  668. 
Coupland    v.    Maynard,    1996. 
Courveisier  v.   Bouvier,   449. 
Cousins  v.   Phillips,   997,   1352. 
Couts  V.  Spivey,  1907. 
Coventry  v.  McLean,   1410,   1414. 
Covert  V.  Morrison,  2134. 
Cowan  V.  Henika,  1036. 

V.  Radford  Iron  Co.,  33,  102. 
Coward  v.   Gregory,   600,  603,   753,  766, 

768,  771,  900,  1399. 
Cowell  V.  Lumley,  618,  1191. 
Cowen   V.    Sunderland,    556,    562,    563, 
566,    569. 

V.  Truefltt,  268. 
Cowie  V.  Goodwin,  557,  1892. 
Cowles  V.  Kidder,  22. 
Cowling  V.  Dickson,  84. 
Cowper  V.  Fletche,  407. 
Cowtan  V.  Williams,  1828. 
Cox  V.  Bailey,  2053. 

V.   Bent,    1216,    127,   380,   1991. 

V.  Bishop,  339,  972,  1135. 

V.  Cunningham,  178,   183,  472,   489 
490. 

V.  Fenwick,  917,  9S6,  1129. 

V.  Glue,  2099. 

V.  Jordon,  2038. 

V.  Leigh,  1247. 

V.  Painter,  2059. 

V.  Sammis,  1419. 

V.  Terre  Haute  &  L  R.  Co.,  204. 

V.  Volkert,  604. 
Coy  V.   Downie,   1191,  1244. 
Cozens  v.' Stevenson,   365,   546,   1150. 
Crabtree  v.  Miller,  825. 

V.   Robinson,    2054,   2055. 
Craddock  v.  Riddlesbarger,  2019. 
Craig  V.  Butler    1046,  1214. 

V.  Dale,  1634. 

V.  Merime,  2051. 


ARE  TO  PAGES.] 

Craig  V.   Summers,   159,   845,   908,    909, 

910,    912. 
Cram  v.   Dresser,   1540,    1844. 

V.  Thompson,    259,    383,    384,    390, 
393. 

Cramer  v.   Carlisle  Bank,  299. 

V.   Mott,    2056. 
Crandall   v.   Sorg,    1407. 
Crandall  Inv.  Co.  v.  Ulyatt,  1588, 
Crane  v.   Batten,   1385. 

V.   Burntrager,    1828. 

v.  Edwards,  1342. 

V.    Hardman,    1812,    1842. 

v.  Murray,  1961. 

v.   O'Connor,  291. 

v.  Patton,  8,  27. 

V.  Van  Derveer,  1788. 
Cranley  v.  Kingswell,   1095. 
Cranston    v.    Rogers,    1021,    1998,    2069, 

2070. 
Crawford  v.  Bugg,  732. 

V.  Chapman,  885. 

v.  Jones,   255,  456,   1893. 

V.  Kastner,  1517,  1519. 

v.  Kline,  1529. 

V.   Longstreet,   202. 

V.  Morris,   124,   1521. 

V.  Newton,  757. 

V.   Redding,   1233, 

V.  Scovell,  200. 

V.  Wick,  261. 

V.  Witherbee,  969. 
Crawley  v.  Mullins,  1333. 

v.  Price,  938. 
Crawshay   v.  Thornton,   1828. 
Crean  v.  McMalion,  1370. 
Creech  v.  Crockett,  151,   1421,  1425. 
Creed  v.  Hartmann,  688. 
Creighton  v.  McKee,  1523,  1535. 

v.  Sanders,  244,   259,  1429,  1445, 
Creel  v.  Kirkham,  39,  189,  1651. 
Crerar  v.  Daniels,  1569,  1570. 
Crescent  City  Wharf  &  Lighter  Co.  v, 

Simpson,  275. 
Cress  V.  Varney,  2109. 
Cressler  v.   Williams,  169,  444,   451. 
Creswell  v.  Davidson,   1386. 
Creveling  v.  DeHart,  962,  1124,  1329. 

v.  West  End  Iron  Co.,  1369, 
Crill  V.  Jeffrey,  1908. 
Grim  v.  Nelms,  181,  479. 
Crine  v.   Davis,  2015. 
Crinkley  v.  Egerton,  317,  1903. 
Cripps  V.  Blank,  1858. 
Critcher  v.  Watson,   1692. 
Critchfield     v.     Remaley,     1427,     1483, 
1488. 


TABLE  OF  CASES. 


2165 


[references 

Crittenden    &    Cowles   Co.    v.    Cowles 

1556. 
Crocker  v.  Cunningham,  1663,  1974. 

V.   Hill,   618,   619. 

V.  Mann,  1987,  2024. 

V.  Sowden,  1343. 
Crockett  v.  Althouse,  493. 

V.  Bearce,   1978. 

V.  Crockett,  730,  731,  737. 
Croft  V.  King,  1740,  1816. 

V.  Lumley,  929,  1367.  1388,  1392. 
Cromie  v.  Hoover,  1587,  1588. 
Crommelin    v,    Thiess,    230,    918,    1262, 

1264,  1490. 
Cromwell   v.   Andrews,  1083. 
Crone  v.  Bane.  2033. 
Croney,  In  re,  981. 
Cronin  v.  Epstein,  1151. 

V.  Watkins,   893,   1702,  1703. 
Cronkhite  v.  Imperial  Bank  of  Cana- 
da, 1594. 
Crook  V.  Hewitt,  815,  828,  2125,   2128. 
Crooker  v.  Jewell,  904. 
Cropp  V.  Hambleton,  1094. 
Crosble  v    Tooke,  394,  1548,  1554. 
Crosby  v.   Bonnowsky,   463. 

V.  Jarvis,  1773. 

V.  Jordan,   1383. 

V.  Loop,  1065,   1101,   1105,  1108. 

V.  Moses,  1537,   1694. 
Cro.sier  v.  Tomkinson,  2011,  2012,  2013. 
Croskill  V.  Wortman,  317. 
Cross  V.  Ballard,  1837. 

V.  Button,   1209. 

V.  Campbell,  1421. 

V.  Freeman,  315,  441,  481. 

V.  Lewis,  2113. 

V.  Tome,  2000,  2051. 

V.  United  States,  1822,  1851. 

V.   Upson,    153,    908,    951. 
Crosse  v.  Duckers,   1631. 

V.  Young,  535. 
Crossfield  v.  Morrison,   996. 
Cro.ssthwaite  v.  Caldwell,  1161. 
Crosswell  v.  Crane,   1871. 
Grotty  V.  Collins,   291. 
Crouch  V.  Briles,  1855,  1856. 

V.   Pastolfe,   1093,   1095,    1096. 

V.  Fowle,   526,   540,  541. 

V.  Parker,  S3. 

V.  Tregonning,  972,  995,  1868. 

V.    Trimby    &.    Brewster   Shoe    Co., 
1528. 

V.  Wabash.  St.  L.  &  P.  R.  Co..  941, 
1388. 
Grouse  v.  Mitchell,  159,  925.  i 

Crow  V.  Hildreth,  372.  j 


ARE  TO  PAGES.] 

Crow   V.  "Wood,   2076. 
Crowder  y.   Self,   2036. 
Crowe  V.  Riley,  809.  889.  918. 

V.   Wilson,  718,  722,  819,  1001,  1002. 
Crowell    V.    New   Orleans    &   N.    E.    R. 

Co.,  8,   2126. 
Crowley    v.    Gormley.    994,    1058,    1059. 

1326,  1327,  1435. 
Cruger  v.  McLaury,  1071.  1385.  1405. 
Crum  V.  Hill,  1565,  1567. 
Crusoe    v.    Bugby.    908,    921.    922,    923 

930,   931. 
Crusselle  v.  Pugh,  660. 
Crystal  Ice  Go.  v.  Morris,  1841. 
Cubbins    V.    Ayres,    1573.     1575,     1608. 

IfilO,  1611. 
Cudlip  V.  Rundle,  743. 
Cuesta  V.  Goldsmith,   1328,   1345. 
Cuilhe  V.  Ackerman,  593. 
Culbreth  v.   Smith,   918. 
Cullen  &  Rial's  Contract,  807. 
Culley  V.  Taylor,  39,  189,  1655. 
Culling  V.  Tuffnal,  1614. 
Culver  V.  Hill,  587,  598,  1843. 

V.  Kingsley,   639. 
Gumming  v.  Barber,  361. 

V.  Bedborough,  842. 
Cummings  v.  Ayer,  586,  659. 

V.  Kilpatrick,    1730. 

v.   Perry,    819. 

V.  Powell,    195. 

V.   Smith,   168. 

V.  Winters,    1749. 
Cummins  v.    Scott,   385. 
Cundiff  V.   Cundiff,    606. 
Cunnea    v.    Williams,    1941. 
Cunningham    v.    Baker,    1664. 

V.  Cambridge    Sav.    Bank,    167. 

V.  Cureton,    1618. 

V.  Davis,  1777. 

V.   Dorsey,    2112. 

V.  Goelet,    1789,   1796. 

V.   Holton,    11,    117,    152,    167,    170. 

V.   Knight,    904. 

V.  Mutual   Reserve  Life  Ins.    Co.. 
644. 

V.  Norton.    1145. 

V.  Pattee,     406,     423,     1520,     1524, 
1551. 

V.  Phillips,    1179,    1180. 

V.   Roush,  238,  245. 
Curd  V.  Parrar,   1743,  1814. 
Curl  V.  Lowell,   112. 
Curran  v.  Flammer,   575,  659,   684,  687, 

690. 
Currier    v.     Barker,     255,     256,     1447, 
1449,    1762. 


2166 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Currier  v.   Ear],  114,    318,  328. 

V.  Gale,    2113. 

V.   Grebe,    1458. 

V.  Perley,     120,      130,      140,      1429, 
1432,   1884. 
Cursen  v.    Faunt,   428. 
Curtice  v.   Thompson,   680. 
Curtis,   In  re,   94. 
Curtis  V.   Bradley,   2063,   2064. 

V.  Cash,    10  40. 

V.  Deering,   867,   1274. 

V.   Galvin,    115,    1424. 

V.  Gardner,   44. 

V.  Hoyt,   2115. 

V.  Hunt,   354. 

V.   Klley,   630,   637. 

v.  Laesia,    1566. 

V.  Pierce,    849. 

V.   Smith,    463. 

V.   Spitty,      446,     986,     1123,      1127, 
1821,    2002. 

V.   Treat,    1858,    1864. 

V.  Wheeler,    139,   402,   908,    1989. 
Curtlss  V.   Miller,   1168. 
Curtner    v.    Lyndon,    1661. 
Cusack   V.   Gunning    System,    1526. 
Cuschner     v.     Westlake,     1351,     1386, 

1388,    1391. 
Cushing  V.  Adams,   2109,    2114, 

V.  Cable,    1138. 

V.  Danforth,    1556. 

V.  Kenfield,    2098. 
Cuthbert   v.    Kuhn,    1068,   1184. 
Cuthbertson   v.    Irving,    431,    440,    897, 

1163. 
Cutter  V.   Hamlen,    562,    565,    569,    652, 

654. 
Cutting  V.  Carter,    730. 

V.   Cox,    39,   146,   165,   1666. 

V.   Derby,   1044,   1438,   1499. 
Czermak   v.   Wetzel,    388, 


D. 

Daggett  V.  Champney,   1336,   1339. 

V.  Webb,    783. 
Dahm   V.    Barlow,   263,   1355.    1356. 
Dail  V.   Freeman,   1646,  1647. 
Dakin  v.  Allen,    307,   309,   1727. 

V.  Williams,    944. 
Dakota    Hot    Springs    Co.    v.    Young, 

17.^5,    1758,    1769,    1772. 
Daiay    v.    Savage,    075,    684,    687,    698, 

699. 


Dalby    v.    Hirst,    784. 

Dale   V.   Taylor,   1951, 

Daley    v.    Quick,    567. 

Dalgleish  v.    Grandy,    1987. 

Dalin    v.    Worcester    Consol.    St.    Ry. 

Co.,    669. 
Dalkowitz  v.  Schreiner,   614. 
Daley   v.   Grimes,    1996,    2001,   2086. 
Dallman   v.    King,    588,    773,    1090. 
Dalton    V.    Angus,    613. 

V.   Fitzgerald,    454. 

V.   Gibson,    624,    628,    659. 

V.   Laudahn,       1044,       1855,      1881, 
1968,    1977. 

V.   Whittem,    2080. 
Daly  V.  Beckett,  210. 

V.   Edwardes,     927,     928. 

V.  Piza,    365,    606. 

V.   Simonson,    301. 

V.   Wise,    295,    298,    558,    561,    1223, 
1227,    1242. 
Damainville   v.   Mann,   975,   1103,   1104, 

1127,    1129. 
Damb  v.  Hoffman,  964. 
Dame  v.  Dame,  105,  1583,  1588. 
Damkroger    v.     Pearson,     1225,     1226, 

1228. 
Dancer   v.    Hastings,    470,    897,   2044. 
Dancy  v.  Walz,   835. 
Danenberg  v.  Reinheimer,  971. 
Danforth   v.    Stratton,    1740,    1808. 
Daniel  v.  Grade,  1046,  1047,  2000. 

V.   Harris,   2039. 
Daniels  v.  Brown,   1664,   1672. 

V.   Cushman,   27. 

v.   Davison,  385,  866. 

V.   Logan,    1301. 

V.   Pond,    114,    787,    788,   789. 

V.   Richardson,   968,    1126,    1127. 

v.   Straw,    1554. 
Dann   v.   Spurrier,    85,    289. 
Danziger  v.  Falkenberg,  1199,  1217. 
Darbey  v.  Whitaker,    1545. 
Darby  v.  Anderson,  216. 

V.  Callaghan,    194. 

V.   Harris,   2017. 

V.   Jorndt,    1932,    1961. 
Darcey  v.    Steger,  859. 
Darch   V.  McLeod,  1864. 
Darcy  v.  Askwith,    708. 
D'Arcy  V.  Martyn,  59,  1049,  1444,  1464. 
Dark  v.  Johnston,  22. 
Darling  v.  Hoban,   1532,  1536,  1537. 

v.   Kelly,   8,  2126. 
Darlington   v.   Dewald,    783. 

V.   Hamilton,   1386. 
Darmstaetter   v.    Hoffman,    995,    1127. 


TABLE  OF  CASES. 


2X67 


[REFERENCES  ARE  TO  PAGES.] 


Darnell  v.  Columbus  Show  Case  Co., 

827. 
Darrah  v.   Baird,  1585,   1588,  1604. 
D'Arras   v.    Keyser,    1681. 
Darrell   v.   Tlbbitts,    860. 
Dart  V.  Vendors,  1014. 
Dartmouth    College    v.    Clough,    918, 

1133. 
Dasher  v.  Ellis,  16. 
Dashwood  v.  Magniac,   707,  711. 
Dassance   v.   Cold,    1017. 
Dassori  v.  Zarek,  990,  992. 
Daubuz  V.  Lavington,   326. 
Dauchy  Iron  Works   v.   McKlm  Gas- 
ket &  Mfg.  Co.,  1036. 

V.  Toles,    363. 
Dausch  V.  Crane,    174. 
Davenant  v.  Bishop  of  Sarum,  846. 
Davenport  v.   Haynie,   1086. 

V.  Magoon,  716,   718.  722,  729,  7S0. 

V.  Reg,   1369,   1388. 

V.  Ruckman,  675,  687. 

V.   Shonts,  1620. 

V.   U.  S.,   777,    778. 
David  V.   Ryan,   765,  952. 
David  Bradley  &  Co.  v.  Peabody  Coal 

Co.,    873,    1040,    1083. 
David    Stevenson    Brew.    Co.    v.    Cul- 

bertson,  280. 
Davidson  v.  Crump  Mfg.  Co.,  1604. 

V.  Donadl,    1812. 

v.   Ellmaker,    474. 

v.   Ernest,   1866. 

V.   Fischer,    557,    559,    562. 

V.   Hammerstein,  1736. 

V.  Hirsh,    1171. 
Davies  v.   Baldwin,  245. 

v.  Clark,  752,   753,  775. 

V.  Davies,    744,   746. 

V.   Edwards,    1822,    1841. 

V.  Mannington,    196. 

v.  New  York,   202. 

V.   Powell,    2023. 

V.   Stacey,   1088. 
Davis  V.   Alden,   1795,    1806. 

V.  Arledge,  2023. 

V.   Banks,    1226. 

V.  Blackwell,  354. 

V.  Brocklebank,    115,    1632,    1635. 

V.   Buffum,    1583,    1585.    1614,    1615. 

V.  Burrell,   856,   1373,  1510. 

V.  Carlsley  Mfg.   Co.,    1593,    1616. 

V.  Cincinnati,  853. 

V.  Clancy,   2115. 

V.  Clark,    712. 

V.  Davis,     468,     1717,     1744.     2063, 
2085,   2087. 


Davis   V.    Deleware    &   H.    Canal   Co., 
454. 

V.   Emery,  1583. 

V.   Eyton,  1640. 

V.   Ford,  1938. 

V.   George,     557,     573,     1167,     1L02, 
1668. 

V.  Gilliam,  712,   713. 

V.   Goldberg,   1922. 

V.   Gyde,  1082,  2033,  2073. 

V.  Hamlin,  1556. 

V.  Hemenway,  322,  1727,  1729. 

V.   Henry,  2029,   2079. 

V.  Jewett,    2117,    2118. 

V.  Jones,     369,     1575,     1582,     1587, 
1614. 

V.  McKinnon,   129. 

V.  Morgan,   1856. 

V.  Morris,  908. 

V.   Moss,  1573,  1585,   1591. 

V.   Murphy,    1426,    1435,    1436. 

V.  Nash,  2115. 

V.  Paciflc  Power  Co.,  643,  646,  660. 

V.  Payne's  Adm'r,  2076. 

V.  Pollock,   254. 

V.  Pou,  1780. 

V.  Robert,  317. 

V.   Schweikert,   SO,  83,   1277. 

V.  Shoemaker.   1849. 

V.   Smith,    562,    566,    568,    569,    594, 
652. 

V.   Sparks,  1940. 

V.  Thompson,    128,    242. 

V.  Town     Properties     Inv.     Corp., 
532,    538. 

V.  Washington,   1920. 

V.   Williams,  334,  449,   451,   501. 

V.  Wilson,    1932,    1963,   1964. 
Davis'  Adm'r  v.  Eastham,  1680. 

V.   Smith,  558. 
Davison  v.  Gent.  1343,   1346. 

V.   Stanley,   1326. 

V.   Wilson,   1508. 
Davy  V.  Cameron,  437. 

V.   Davy,   1826. 

V.   Matthew,  898. 
Dawes  v.  Dowling,  1856. 

V.   Thomas,   842,   1088. 
Dawson  v.  Brouse,  10. 

V.   Cerf,   138. 

V.  Coffey,    1926,    1929,    1964. 

V.  Coffman,    712. 

V.   Cropp,    2034,    2035,   2081. 

V.   Dawson,   1727. 

V.   Dewan,    124  8. 

V.   Dyer.    343.    1244. 

V.   Marsh,  1292,   1508. 

V.  Pennaman,   2048. 


2168 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Dawson  v.  Quillen,  2091. 

V.  Williams,    1826,    1827. 
Day  V.  Austin,  1163. 

V.   Cochran,    16,   152. 

V.   Singleton,   960. 

V.   Stevens,    1649. 

V.   Swackhamer,   584. 

V.  Watson,    1157,   1273. 
Days  V.  Doyle,  1285. 
Dayton  v.  Van  Doozer,  1630. 
Dayton   Hydraulic  Co.   v.   Felsenthal, 

985. 
Dean  v.  Adler,  404. 

V.  Allen,    354. 

V.  Comstock,  117,  308. 

V.   Donaldson,   2042. 

V.  Fail,   81. 

V.   Murphy,    629,  635. 
Dean  of  Bristol  v.  Guyse,   1875. 
Dean   &    Chapter   of   Windsor's    Case, 

887,   1020. 
Deane   v.    Caldwell,    1011,    1311,    1348. 

V.  Hutchinson,  1611. 
Dearborn  v.   Wellman,   2117. 
Dearden  v.   Evans,  711. 
Deaton  v.  Taylor,  1369,   1394. 
Deaver  v.   Rice,   1654,    1662,   1987. 
De  Bardleben  v.  Crosby,  2094. 
Deblois  V.   Earle,   1139. 
Debow  V.  Colfax,   1635,   1642, 
DeBussche  v.   Alt,   811. 
Dechenbach  v.   Rima,   261. 
Decker  v.  Adams,   1481. 

V.  Clarke,  958,    959. 

V.  Decker,  39,   1666. 

V.  Gaylord,  1137,  1139,  1838. 

V.  Hartshorne,      134,      139,      1344, 
1345. 

V.  Livingston,   1081.   1831. 

V.  McManus,    1747. 

V.   Sexton,    1430. 
De   Clercq   v.   Barber   Asphalt  Paving 

Co.,   847. 
DeCoursey    v.    Guarantee    Trust    Co., 

1734,  1782,   1784,    2001. 
Deeble  v.  McMullen,  1607. 
Deeds  v.  Stephens,  394. 
Deering  v.   Farrington,  518,   1026. 

V.   Moore,   1136. 
DeFalbe,    In   re,    1565,   1578. 
Defiance  Water  Co.  v.  dinger,   647. 
Deford  v.  State,  692. 
DeForest  v.  Byrne,   804,   805,  858. 

V.  Walters,  504. 
DeFriest  v.   Bradley,   1515,   1541,  1543. 
DeGiverville  v.  Stolle,  1457,  1458. 
Degnario  v.   Sire,   1980. 


De   Graffenried   v.  Wallace,    660,   1563. 
DeGray     v.     Monmouth     Beach     Club 

House,    823. 
DeHart  v.  Cleveling,  1330. 
Deisher    v.    Stein,    388.    390. 
Deishler  v.  Golbaugh,  1698. 
Delacroix   v.   BulkJey,   362. 
Delamater  v.  Bush,   1061. 
Delancey  v.  Ganong,  16,  1355,  1364. 
Delaney  v.  Fox,   178,  448,   505. 

V.   Root,    189,    190,    1651,   1653. 
Delano  v.   Montague,   230,   1471. 
Delashman  v.   Berry,  1527. 
Delashmutt  v.  Thomas,  1520. 
DeLassalle  v.  Guildford.   367,  560,  583. 
De   La   Zerda  v.   Korn,   1294,   1295. 
Dell  V.  Gardner.   1S63,  1SG4,   1879. 
Deller  v.   Hofferberth,   679. 
Delmar  Inv.  Co.  v.   Blumenfield,   1242, 

1243,  1270. 
De  Loach  v.  Delk,  1650. 
Demainville  v.   Mann,   986. 
Demarest    v.    Willard,    869,    880,    969, 

1107,   1110,    1820,   1830,    1831. 
Demartini  v.  Anderson,   304. 
De    Medina   v.    Poison,    254,    255,    391, 

1893. 
Demi  v.  Bossier,  1638. 
Des  Moines  v.  Dorr,   773. 
Des     Moines    Nat.     Bank    v.     Council 

Bluffs  Sav.  Bank,  1902. 
De  Montague   v.    Bacharach,    27,   233. 
De  Morat   v.  Falkenhagen,   1334. 
De  Mott  v.  Hagerman,  189,   1651. 
Dempsey  v.   Hertzfield,   598. 

v.    Kipp,    822. 
Den    V.    Kinney,    714. 

V.   Westbrook,    307,    309. 
Denby  v.   Moore,    842,   2037. 
Den  d.  Belfour  v.   Davis,    178. 
Den   d.   Bockover   v.    Post,    922,    938. 
Den    d.    Bray    v.   McShane,    1405. 
Den  d.   Brooks   v.  Brooks,   219. 
Den  d.  Bufferlow  v.  Newson,  455,  489. 
Den   d.   Decker  v.   Adams,   1481. 
Den  d.  Farley  v.  Craig,  1986. 
Den  d.   Freeman  v.  Heath,   178. 
Den  d.  Harker  v.  Gustin,  486. 
Den    d.    Howell    v.    Howell,    112,    115, 

1422. 
Den  d.  Humphries  v.  Humphries,  104, 

1421,  1426,  1632. 
Den-  d.   Jones  v.    Willis,    1427. 
Den  d.  King  v.  Murray,  456. 
Den  d.  Love  v.  Edmonston,  306. 
Den    d.    Lunsford    v.    Alexander,    486, 

488,  490,  918, 


TABLE  OF  CASES. 


2169 


[REFEKBNCES  ARE  TO  PACES.] 


Den  d.  McEowen  v.  Drake,  130.  1422, 

1427. 
Den  d.  Mackey  v.  Mackey,   132,  1418. 
Den  d.  Mayberry  v.  .Johnson,   275. 
Den  d.  Mhoon  v.  Drizzle,   102. 
Den  d.  Phelps  v.  Long,  1746. 
Den  d.  Pollock  v.  Kittrell,   293. 
Den     d.     Stedman     v.     Mcintosh,     130, 

1419,  1420. 
Den  d.  Van  Blarcom  v.  Kip,   15. 
Den  d.  Vancleve  v.  Green,  2136. 
Den  d.  Williams  v.  Bennett,  140. 
Dendy  v.  Nicholl,   1392. 
Denechaud  v.    Trisconi,    730. 
Denegre  v.  Walker,  210. 
Dengler  v.   Michelssen,   1148,   1149. 
Denham  v.  Harris,   1248,   1941,   1942. 

V.   Sankey,  88,  92,  1589,  1621. 
DeNicholls  v.  Saunders,  10S3. 
Denison  v.  Ford,  539,  1282.  1291,  1294 
V.  Maitland.    1391. 
V.  Nation,  558. 
V.  Read,   73. 
V.  Sawyer,   1661. 
V.   Wertz,    1332. 
Denn  v.  Cartright,   63,   124,   125. 
Denn  d.  Brune  v.   Rawlins,   127. 
Dennett  v.  Atherton,   525. 
V.  Dennett,   200,   733. 
V.  Penobscot     Fair     Ground     Co., 
1865. 
Dennick    v.    Ekdahl,    1258,    1263. 
Dennis  v.  Hanson,   263. 
V.   Loving,   937. 
V.  Miller,  1332. 
V.   Twitchell,   1108. 
Dennlson  v.  Grove,  295.  296,   299,   752, 
1063. 
V.  Lee,    2037. 
V.   Read,   1566. 
Denny  v.   Fronhelser,   1815. 
Dent  V.  Hancock,  2054. 
Denton  v.  Kernochan,  793. 
V.  Richmond,    1053. 
v.   Strickland,    39. 
Denver  T.  &  W.  Co.  v.  Swem,  1867. 
Department  of  Health  v.  Wendel,  581. 
DePeralta  v.  Ginochio,  474. 
DePere  Co.  v.  Reynen,  958,  1873. 
Depew  v.   Ketchum,   82. 
Depeyster.v.   Michael,  42,  910. 
Derby  v.  Taylor,  908,  1001. 
Derisley  v.   Custance,   901. 
Dermidy  v.  Interstate  Grain  Co.,  1937 
Dermott   v.   Jones,    761. 
Derrick  v.  Luddy,  472,  473,  479,  486. 
V.  Wallach,   1054,  1055,  1369,   1394 


Derrick  v.   Pollard,   1918. 

DeRutte  v.  Muldrow,    1675,    1677. 

Descarlett  v.   Dennett,    1407. 

DeSilver's   Estate,    200. 

Despard  v.  Walbridge,  492.   499,  1490. 

1860. 
Despatch    Line   v.    Bellamy    Mfg.    Co.. 

1564. 
DeTarr  v.   Ferrt  Heim  Brew.  Co..   790. 
DeTreville   v.   Ellis,   219. 
Detroit  v.  Gleason,  1494. 
Detroit   Pharmacal  Co.  v.   Burt,   1328, 

1331. 
Detroit  Sav.  Bank  v.   Bellamy,   1447. 
Detwiler  v.  Cox,  2001. 
Deuel  v.  Rust.  1796,  1799. 
Deuster    v.    Mittag,     603,    1238.    1239. 

1843. 
Deutsch   V.    Abeles,   696. 
Devacht's  Lessee  v.   Newsam,    509. 
DeVaughn   v.   Howell.    1965,   1971. 
Devers  v.  May,   r)tS,   16or.. 
Devin  v.  Dougherty,   1596. 
Devine  v.  Lord.  151.  1183. 

V.   Radford,    752. 
DeVitt    V.     Kaufman     County,     1670. 

1679. 
Devonshire  v.  Brookshaw,  802. 
Devore  v.  Kemp,  1662. 
Dewar  v.  Goodman,  891. 
Dewey  v.  Payne.   955,  973,   1121. 
Dewitt   V.   Pierson.   1281,   1282,    1302. 
De  Wolf  V.  Martin,  193,  483. 

V.  Royal   Trust  Co.,  984.   985,  986. 
Dewson  v.   St.   Clair,  1432. 
Dexter    v.    King,    9,    519,    1224,    1236. 
1289. 
V.  Manley,   529,   821,   833. 
V.  Phillips,   1071. 
Dey  V    Greenebaum,  951,  952. 
Deyo  V.  Bleakley,  50,  1041,  1042. 
De    Young    v.    Buchanan,    1488,    1491. 

1857. 
Dial  V.   Levy,   2022. 
Diamond   v.   Harris,    1191. 

■<■    Macfarlane,    383. 
Diamond   Plate  Glass  Co.   v.   Tennell. 

9fifi     289 
Dibble  V.   Bowater,  1044,  2028,  2035. 
Dick  V.  Winkler,   2002. 
Dickenson   v.  Harris.   1908.   1949,   195o. 
V.  Jackson,  320. 
v.  Patrie,    1775. 
Dickerson  v.  Jenkins,  836. 
Dickinson  v.  Arkansas  City  Imp.  Co., 
15. 
V.   Baltimore,    726,    732. 


2170 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Dickinson  v.  G-oodspeed,  7,  11. 

V.   Harris,   1923,    1924. 

V.   Jones,  729. 
Dickinson  Co.  v.    Fitterling,   950,   952, 

989. 
Dickson  v.  Cliicag-o  R.  I.  &  P.  R.  Co., 
791. 

V.   Kempinsky,    294. 

V.  Lelinen,    1312,    1742. 

V.  Moffatt,    1888. 
Dieckman  v.  Weirich,    284. 
Diedericli  v.  Rose,  1692. 
Dierig  v.  Callalian,   82,  84,   887,   940. 
Dietrichsen  v.  Giubelei,   727. 
Dietz  V.  Barnard,   1753,  1761. 

V.   Kucks,   1329. 

V.  Mission  Transfer  Co.,  888,  1685. 

V.   Sclimidt,  1141. 

V.   Wineliill,   194. 
Diffenderfer      v.      St.      Louis      Public 

Schools,    1524,    1525. 
Digby  V.  Atkinson,   1489,   1490. 
Dig-gle  V.  Boulden,   316,  1727. 
Dighton  V.  Greenvil,  92. 
Dikeman  v.  Butterfield,   1802. 

V.   Sunday  Creek  Coal   Co.,   1533. 
Dilks  V.  Kelsey,  439. 
Diller  v.   Roberts,  1489,   1490,   2001. 
Dillon  V.  Porier,   2096. 

V.   Wilson,  1655. 
Dills  V.    Hampton,    453,  488,    2098. 

V.   Stobie,    10S9,    1167,    1344,    1345. 
Dimick   v.    Deringer,   2135. 
Dimmett  v.  Appleton,   1749. 
Dimmock  v.  Daly,   1279,   1844. 
Dimock    v.    Van    Bergen,    1471,    1488, 

1493,   1494. 
Dingley  v.  Buffum,  1586. 
Dinner   v.   McAndrews,    2025,    2040. 
Dircks  V.  Brant,   1636. 
Disbrow  v.    Jones,    283,   378,    866. 
Disdale  v.   lies,  115. 
Disher  v.  Disher,  712,  729,  731. 
Disselhorst  v.   Cadogan,   1105. 
District  of  Columbia  v.  Johnson,  444. 
Diven  v.  Johnson,   364,  365. 
Divine   v.  Brown,    1733. 
Dix  V.  Atkins,  123,  129,   1531. 

V.  Jaquay,    738,   2103,   2105. 
Dixon   V.   Ahern,    19,    1858,    1859,   1860. 
V.  Baker,  2118. 

V.   Bradford    &    District    R.    Serv- 
ants' Coal  Supply   Co.,   1432, 
1446,   1447. 
V.  Buell,    1109. 
V.  Clark,   1094. 
V.  Dixon,   1555. 


Dixon   V.   Finnegan,   15,   266,  267. 

V.   Harrison,    513. 

V.  Niccolls.    39,      187,      876,      1100, 
1119,    1145,   1654,    1655,    1659. 

V.   Smith,   1247,    1494. 

V.   Stewart,  471,  473,   480,  483. 
Doak  V.  Donelson's    Lessee,  117. 

V.   Wiswell,    1600. 
Dobbin   v.   McDonald,    1476. 
Dobbins  v.   Lusch,    110,    328,    1291. 
Dobschuetz    v.    Holliday,     1350,    1569, 

1572,   1573,   1602,   1622. 
Dobson  V.  Blackmore,   2117. 

V.   Culpepper,   1727. 

V.   Jones,  332. 
Dockham  v.   Parker,    1628,   1654,   1663. 
Dockrill   v.   Schenk,   856,    1393,    1464. 
Dod  V.   Munger,   125,   2051,    2056,    2061. 

V.   Saxby,  1248. 
Doda  V.    Schmidt,   18. 
Dodd  V.  Acklom,   1323,   1332. 

V.  Bellows,  1828. 

V.   Hart,  546. 

V.   Mitchell,    1050. 

V.   Ozburn,   950. 

V.  Pasch,  68,  275. 
Dodds  V.  Hakes,  548. 
Dodge  V.  Lambert,  812. 

V.  Wright,   1382. 
Dodgen  V.   Camp,    1865. 
Dodin    V.   Dodin,    1718. 
Dodson    V.    Hnll,    68. 

V.  Sammell,    353. 
Doe  V.  Aijel,    7i. 

V.  Adams,  421,   1383. 

V.  Alexander,   1382. 

V.  Allen,    1395. 

V.  Amey.    382. 

V.  Andrews,   880. 

V.  Archer,   72,  400,  1079,  1442,  1443. 

V.  Ashburner,    265,    374,    376,    378. 

V.   Austin,  501. 

V.   Axley,    129. 

V.   Baker,  307. 

V.   Barton,   411,    416,   485,   500,   509. 

V.   Bateman,    910,    1383. 

V.   Batten,   1388,   1463. 

V.   Baytup,  453. 

V.  Bell,    249,   250. 

V.  Benham,  1015,   2003. 

V.   Benjamin,    53,    372,    373. 

V.   Benson,   1035. 

V.  Bevan,  930,   932. 

V.   Biggs,    1456. 

V.   Billet,   1015,   2003. 

V.   Birch,  1389.  1392.. 

V.  Bird,    760,    801,   802. 


TABLE  OF  CASES. 


2171 


[BEFEBENCBS  ABE  TO  PAGES.] 


Doe  V.  Bliss,   S44,  945,  1400. 
V.  Bluck,   70.   1420. 
V.  Bold,   1439. 
V.  Boulter,   180. 
V.  Bowdltch,    1053. 
V.  Bridges,    1321. 
V.  Brindley,   1398. 
V.  Brown,   128,   277,    473,    480,    498, 

873,  875,  876,  1435. 
V.  Brydges,   1379. 
V.   Bucknell,    411,    1357. 
V.  Burlington,   706. 
V.   Burt,   223,   267. 
V.   Burton,  489. 
V.   Butcher,  400,   1079. 
V.  Butler,   1448. 
V.   Calvert,    1463. 
V.  Caperton,   306. 
V.  Carter,   151,   929. 
V.   Cawdor,    1357. 
V.  Chamberlaine,    107,   1421. 
V.  Chaplin,   1438. 
V.  Clarke,   69,   372,    376,    380,   498. 
V.  Clayton,    174. 
V.  Cochran,    1867. 
V.  Cole,  869. 
V.  Collins,    269. 
V.  Connaway,    312. 
V.  Cooper,    1357,    1358. 
V.  Courtenay,    1321,    1326. 
V.  Cox,  127,  323. 
V.   Crago,    127,    1481, 
V.  Craig,   1014. 
V.   Crick,  1441,  1458. 
V.  Culliford,    1442,    1445. 
V.   Darby,   1427. 
V.   David,   95,   1376. 
V.  Davles,   44,  127. 
V.  Davis,    323. 

V.   Day,  52,   290,  291,  323,   324,   422, 
V.  Derry,    1419. 
V.   Dixon,   85,   289. 
V.   Dobell,   250,   1451. 
V.  Donovan,    1432,    1435. 
V.  Dunbar,  1457. 
V.  Dyson,  1383. 
V.   Eason,  64. 

V.   Edwards,    181,    494,    495,    1385. 
V.   Elsam,   1364. 
V.   Errington,  405, 
V.   Evans,    1357. 
V.   Fairclough,   1442. 
V.   Flynn,   1356. 
V.  Forster,   1456. 
V.   Forwood,    1442,    1461. 
V.   Foster,  376.   455,  1442. 
V.  Frankis,    181. 


Doe  V.   Franks,   1383. 
V.   Frowd,    1357. 
V.  Galloway,   268. 
V.  Garrison,  1358,   1448. 
V.  Geekie,    63,   124,   1060,    1326. 
V.   Gladwin,    861,    &62,    1364,    1399. 
V.   Godwin,    1366. 
V.   Goldsmith,   421,    1383. 
V.   Goldwin,    321,    1439,   1444. 
V.   Grafton,  129,  140,  1448. 
v.   Gray,  167,  169,  1457. 
V.  Green,   63,    124,   1427. 
v.  Groves,    375. 
v.  Grubb.   1357. 
V.   Guest,   385. 
V.   Guy.    214. 
V.  Hales,  410. 
V.   Hazell,   1429. 
v.   Hildcr,    1418. 
V.   Hogg,   925. 
v.   Howard,  1452. 
v.  Hughes,   411,  1438,   1452. 
v.   Hull,  144. 
V.  Hulme,   1438. 
V.  Humphreys,   1464. 
V.  Hunt.    1462. 
V.  Hunter,   1332. 
V.   Jackson,  307,   760,   1444. 
V.  Jefferson,   169. 
V.   Jepson,    1054,    1055,    1367. 
V.   Johnson,    54,   134,   1324. 
V.   Johnston,    1327,    1418,    1436. 
V.   Jones,    335,    722,    773,   956,    1374, 

1398,   1399. 
V.   Keeling,  801. 
V.   Keith,  109. 
V.  Kennard,   71,  72. 
V.   Kightley.   1427,   1445. 
V.   Kneller,  1025. 
V.   Lachenour,    488. 
V.   Laming,   929. 
V.  Lawrence,   1383. 
V.  Lea,   68,   1446. 
V.  Lewis,    770. 
V.   Lines,   1451. 
V.  Lively,    473,    480. 
V.  Lock,   273,   1025. 
V.  Long,   1358. 
V.  McCarthy,  872,  875,  1438, 
V.  McKaeg,   306,  335. 
V.   Mace.    20.    410,    412. 
V.  Mainby,  125. 
V.  Maisey,   321,   324,  1433. 
V.   Marchetti,    1363,    1367. 
V.   Masters,    1380,    1413, 
V.   Mathpws,    54,    1447. 
V.  Merritt,   1441,   1443. 


2172 


TABLE  OF  CASES. 


[REFEREKCES  ARE  TO  PAGES.] 


Doe  V. 

V. 


Meux,  767.  1390,  1401. 

Miles,    70,    1420. 

Miller,   306,   1393. 

Mills,   489. 

Milward.   1319,   1442,   1456. 

Mitchell,   471,   473. 

Mizem,   487,    1439. 

Moffatt,    382. 

Morphett,  1445. 

Morris,   709. 

Morse.   127,  400,   1016,   1484. 

Murless,   950. 

Olley,  326. 

Ongley,    411,    1456. 

Palmer,    1464. 

Parker,   1356. 

Pasquali,   1358. 

Paul,    1378,    1379. 

Payne,    952. 

Peck,   861,   1394,   1399. 

Pegge,  433. 

Perkins,   143,   144. 

Phillips,  73,   471,  1366. 

Pittman,    1357. 

Poole,   1320,   1321,   1325,    1326. 

Porter,   139. 

Powell,    925,    931,   1375. 

Price,   113,    1421. 

Prideaux,    400. 

Pritchard,    945,  946,    1388,   140Q 

Prosser,    148. 

Pyke,  1349. 

Raffan,   1435. 

Rainsford,  1518. 

Ramsbotham,   510. 

Reddick,   2135. 

Rees,  372. 

Reid,  809,  1439. 

Reynolds,    175,    177. 

Richards,   102,   103.    104. 

Rickarby,    952. 

Ridout,  1314. 

Ries,  372,  375,  377. 

Roberts,   140,  152,  196,   197. 

Rock,  111. 
.   Roe,  501,  1383,   1416,   1442,  1445. 

1724,   1745. 
,   Rowe,   1396. 
.   Rowlands,  761,  768,  769. 
.   Scott,   1448. 

.   Seaton,   424,   510,    311,   513. 
.   Smaridge.   122.    125,  1482. 
.   Smith,   181.    376,   873,    930,   1412, 

1445. 
.   Smythe,  437,    487. 
.   Snowden,    1452. 
.  Somerton,   1446. 


Doe   V.   Spence,    1452. 

V.   Spiller,   1442,   1445. 

V.   Spry,    802. 

V.   Stagg,   140. 

V.   Stanion,   1332,   1357,   1686. 

V.   Stapleton,   54,  134. 

V.   Steel,   1464. 

V.   Stennett,    1487. 

V.   Stevens,    1367. 

V.  Stowe,   215. 

V.   Stratton.    251,   382. 

V.   Rturges,   214. 

V.  Summersett,   405,   1438. 

V.   Sus-san,   46. 

V.   Sutton,  753. 

V.  Taniere.    400. 

V.   Terry,    1461. 

V.   Thomas,   112,   115,   116.   1315. 

V.   Thompson,  414. 

V.   Tiffany,  489. 

V.  Timothy,    1445,   1448. 

V.   Tom,    326. 

V.  Turford,    1461. 

V.   Turner.    112,   151,   1640. 

V.  Ulph,    862. 

V.  Walker,    48,   90. 

V.  Walters,    1439. 

V.   Watkins,   1452,   1458. 

V.   Watson,    495,    514. 

V.  Watt,    1365,   1396. 

V.  Watts,    106,    126,    131,    400,    404. 
1484. 

V.  Weese,   1356. 

V.   Weller.  1451. 

V.   Wells,    1355,'  1356,   1357. 

V.   Wiggins,   471,   473,   485. 

V.  Wilkinson,  486,  1442,  1445. 

V.  Williams,  950.  1358,  1394,  1440, 
1996. 

V.  Wilson,  715,  1382. 

V.  Windlass,    1377. 

V.  Witherwick,    1641. 

V.  Wood,    28,   31,    32,    33,    129,    139, 
169,    1343,   1421. 

V.  Woodbridge,    1398,    1399. 

V.  "^'oodman,    1440.    1456. 

V.   Worsley,    922. 

V.  Wrightman,    1427,    1442,    1448. 
Doepfner  v.  Bowers,  1533. 
Doherty  v.  Allman,   706,   717,  718,   719, 
730. 

V.   Doe,    1056,    1057,   1059. 
Dolan  V.   Scott.   113. 
Dolby  V.   lies.   212.  434,  446.  451,    1859. 

1864,  1877. 
Dolittle  V.   Eddy,    163,   308. 
Dollar  V.  Roddenbery,   164G,   1647. 


Table  of  cases. 


2 173 


[REFERENrES  ARE  TO  PAGES.] 


Dollard  v.  Roberts,  629,  633,  637,  665. 
Dollen   V.    Batt,    1028. 
Dolph  V.   White,   891. 
Dolton  V.  Sickel,  1273,  1275. 
I>omenlcls  v.   Fleis'her,   666. 
Dominick  v.  Michael,  197. 
Donahoe  v.   Kendall,    632. 

V.   Mitchem,   1776. 
Donahue  v.   New  York,  71. 
Donald  v.  Suckling,   920. 
Donaldson  v.  Smith,  50,  51,  63,  1036. 

V.   Strong-,   937,   98S,   991. 

V.   Uhlfelder,    369. 

V.  Wherry,   1173. 

V.   Wilson,   655. 
Donason    v.    Walker,    719. 
Donellan  v.   Read,  233,  600,  1023,  1059, 
1326,   1327. 

V.  Wood.  Curtis  &  Co.,  1202. 
Donelson  v.   Polk,  994. 
Donk  Bros.   Coal   Co.,  v.  Leavitt,    122, 

651. 
Donkersley  v.  Levy,   1345. 
Donnell  v.  Harshe,   1649. 
Donnelly    v.    Frick    &    Lindsay    Co., 
1585,   1588. 

V.   O'Day,   179. 

V.  Thieben,  1587. 
Donnewald     v.     Turner    Real     Estate 

Co.,    1569,    1587,    1621. 
Donnison  v.  People's  Cafe  Co.,   379. 
Donohue   v.    Chicago    Bank   Note   Co., 

244,    1432,    1443. 
Donovan   v.   Koehler,   1280. 

V.   Schoenhoefen       Brewing      Co., 
236,   376,   384,  391,  1519. 
Dood  V.  Rothschild,  660.  662,  693. 
Doolan  v.  McCauley,  215. 
Dooly  V.  Stringham,  716,   717. 
Doran  v.  Chase,   1285. 

V.   Gillespie,   1747.   1750. 

V.   Kenny,   989. 
Doremus  v.  Howard,   1627,   1628,    1629, 

1654,   1661. 
Dorman   v.   Ames,   680. 

V.  Plowman,   242. 
Dormer's  Case,  1380. 
Dorr  V.  Harkness,  741,  1214. 
Dorrance  v.  Bonesteel,  1337,  1338. 

V.   Jones,    982,   983,    1081. 
Dorrell  v.  Collins,  273. 

V.  Johnson,    145,    1419,    1481. 
Dorrill  v.  Hopkins,   1063.  , 
Dorschel  v.  Burkly,   1732. 
Dorsett  v.   Gray,   1073. 
Dorsey  v.  Hays,  2026. 

V.  Moore,  2098. 


Dorsh  V.   Lea,   2008. 
Dorwin  v.  Potter,  590,  596. 
Doscher  v.  Blackiston,  1562. 

v.   Shaw,    1349. 
Doss  V.  Craig,  1751. 
Dostal  V.  McCaddon,  1587,  1615. 
Doty  V.   Burdick,   486,  1355,  1739. 

V.   Gilbert,   1329. 

V.   Gillett,    1876. 

V.   Gorham,   15SS. 

V.  Heth,   908,   1651,    1976. 
Doubitofte   v.   Curteene,   1166. 
Dougal  V.  McCarthy,  1471.  1482. 
Dougherty  v.  Chesnutt,   26i. 

V.   Kellum,    2094. 

V.   Matthews,    970,    989. 

V.   Seymour,  302. 

V.   Spencer,  1576. 

V.   Thompson,  1729. 

V.   Wilson,  1151. 
Dougherty's  Estate,  In  re,  1899. 
Doughty  V.   Bowman,   893. 
Douglas    V.    Chesebrough    Bldg.    Co., 
1237. 

V.  Pulda,  506. 

V.  Herms,   1397. 

V.  Seiferd,    119,   126,   133,   135,  138, 
1337,   1479. 
Douglass     V.     Anderson,     1357,     1763, 
1766. 

V.   Branch  Bank,    287,   1154,   1840. 

V.   Geiler,    20,   1871,   1888. 

V.   Murphy,    889. 

V.   Parker,   1357,   1761,   1762. 

V.   Whitaker,   1766. 

V.   Wiggins,    729,    730. 
Douglaston    Realty    Co.    v.    Hess,    73, 

77,    893,   1710. 
Doupe  V.   Genin,   624,   626,    628. 
Douse   V.   Earle,   761,   781. 
Dove  V.  Dove,  1108. 
Dowd  V.  Gilchrist,   452. 
Dowell  V.   Dew,  388. 
Dower  V.  Richardson,  312. 
Dowling  V.   Mill,    1522. 

V.   Nuebling,    559,   575,    583. 

V.   Wall,   1912,    1927,    1932. 
Downard  v.  Groff,  417,  419,  1642,  1644, 

1645. 
Downer  v.  Rowell,  1670. 
Downing  v.  DeKlyn,   1349. 

V.  Jones,    1549. 

v.  Palmateer,  1062. 
Downs  V.  Cooper,   2073. 
Dowse  V.  Cale,   898,   903. 
Doxey's  Estate  v.  Service,  348. 
Doyle,  In  re,  922. 


2174 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.  ] 


Doyle  V.  Dixon.   365. 

V.   Gibbs,   337.   1419. 

V.  Longstreth,    1064. 

V.   Lord,    816,    827. 

V.  Union.  Pac.  R.  Co..  38,   563,  565. 
Dozier  v.  Greg^ory.   725,   732. 

V.   Robinson,    2038.    2094. 
Dragro  v.  Meade,   5S8,  590. 
Drain   v.  Jacks,    1748. 
Drake   v.    Board   of   Eduoation.   1524. 

V.  Chicago  R.  I.  &  P.  R.  Co.,  2099. 

V.  Cockroft.    1844. 

V.  Dawson.    2048,    2069. 

V.  Lacoe,   909. 

V.  Mitchell,    1082,    2032. 

V.  Miinday,    265,    1025. 

V.  Newton,    245. 

V.  Sewell,    2136. 

V.  Whaley,    1961. 

V.  Wigrle.    712. 

V.  Wilhelm,    1475. 
Drakford  v.  Turk,  410.  416,  1902,  1922. 
Drane  v.  Gregory,   464. 
Drant  v.   Vause,    1687. 
Draper    v.    Crofts,     1469,     14S2,    1499. 
1S71. 

V.   Stouvenel.   194. 

V.   Tliomrson.    2053. 
Drelske  v.  People's  Lumber  Co.,  1585. 
Di'esner  v.  Fredericks.  1135. 
Dresser  v.  Dresser,  1503. 
Drew  V.  Guy,  802. 

V.  Mosbarger,  1359,  1734. 
Drexler  v.  Cohen.  1852. 
Drey  v.  Doyle,  1447,  1455.  14S5. 
Dreyfus  v.  Carroll,  1787. 

V.  Gage  &  Co.,   1941,  1942.   1944. 

V.   Hirt,    865.    1064.    1086,    1101. 
Drigg-s  V.  Dviight.   392,   548. 
Drinkard  v.  Heptinsdall.  67. 
Driver   v.   John  W.   Edringion   &   Co., 
149S. 

V.  Maxwell.  579,  2047. 
Drohan  v.  Drohan,  213. 
Drouin  v.  Wilson.  778.  779. 
Drown  v.  Smith,  706.  707,  713. 
Drum  V.  Harrison,  314. 
Drummond  v.   Fisher,   940. 
Drury   v.   Macnamara,   547. 

V.   Molins.    730. 
Druse  v.  Wheeler,   308. 
Duble.  In  re.  2021, 

Dubois  V.  Kelly,  1571,  1577,  InSO.  15S6, 
1587.   1598,   1614,  1616. 
V.  Van    Orden.   1839. 
DuBouchet  v.    Wharton,    1753,    1S06. 
Dubuque   v.   Miller,    14S7. 


Kimball. 


Dubuque     Lumber     Co. 

1494. 
Ducey  Lumber  Co.   v.   Lane,   1860. 
Duck  V.   Braddyl,   1254. 
Ducker  v.   Del    Genovese,   756,   765. 

V.   Rapp,   1143.    1146. 
Duckmanton  v.  Duckmanton,  267. 
Dudding  V.   Hill,  166. 
Dudley  V.   Estill.    79. 
V.   Hurst.    1563. 
V.   Lee.    1733. 
V.  Warde,    1585. 
Duer  V.   Allen,   720,   742. 
Dufau  V.   Wright,   1139. 
Duff  V.    Fitzwater,   1733,   1790. 
V.   Hart.  1282. 
V.   Snider,   1600,  1711. 
V.   Wilson.    414,    519,    878,    1140. 
Duff's  Appeal.  1018. 
DufEee  v.    Mansfield,    256,    346,    1144. 
Dutfield  V.   Elwes,  220. 
V.   Hue,   1396. 
V.   Whitlock.    1521. 
Puffin  V.  Dawson,  687. 
Duffitt   V.  Tuhan.  464. 
Duftus     V.     Bangs,     1574,     1592,     1629, 

1973.  1974. 
Duffy  V.  Day,  1273.  1335. 

V.  Ogden,    63,    1453. 
Duke  V.  Ashby,  450. 

V.  Compton,  874,  1734,  1803. 
V.   Grilhth.   1678. 

V.   Harper.    16,    17.    245,    516,    1355. 
Duley   V.    Kelley,    29. 
Dumergue    v.    Rumsey.    1613. 
Dumes  v.   McLosky,   2034. 
Dumn  V.  Rothermel,  241.   287, 
Dumpor's  Case,   1384,   1385. 
Dunbar  v.  Bonesteel,  297. 
Duncan  v.    Beard,   167. 
V.   Clark,    1953. 
V.  Jayne,   1936,  1944. 
V.  Moloney,    545,    1147, 
Duncklee    v.    Webber,    26; 

534. 
Duncombe  v.  Felt.  713.   721. 
Dungey  v.  Angove,   1S2S.   1880. 
Dunham  v.   Townsend.    306.   1866. 
Dunk   V.   Hunter.    372.   376,    1990,    2073. 
Dunlap   V.   Bullard.   910,   1001. 

V.  Dunseth.   1953. 
Dunlop    V.    James,    977. 

V.   Mulry.   931. 
Dunn   V.    Bagby,    1693,   1694. 
V.   Barton,    811,   1002. 
V.   Jaffray,    SO. 
V.   Kelly,    1960,    1963. 


1428. 


1309. 
,    361,    619, 


TABLE  OF  CASES. 


2175 


[RBFBRENCES  AKE  TO  PAGES.] 


Dunn   V.   Mellon.    10.    527. 

V.   Robins.    645. 

V.   Tillery.  314.  315,   316. 
Dunne    v.    Trustees    of    Schools,    3S1. 

1420.  1786.   1790,   1864. 
Dunning  v.    Finson,    1786. 

V.   South,    1665.   1965,   1978- 
Dunphy  v.  Goodlander.  66. 
Dunshee  v.  Grundy,  498,   1421. 
Dunton  V.  Sharpe,  1113. 
Dupas   V.    Wassell,    459. 
Duppa  V.  Mayo,  1044,  1073,   1104.  1105, 

1378. 
Dupree  v.  Dupree,   726,   732. 
Durand  v.  Curtis,   987.  992,    1131. 
Durando  v.  Wyman.  951. 
Durant  v.  Palmer,  675,  680,  687. 

V.   Taylor.    186. 
Durant    Land     Improvement    Co.     v. 
East      River      Electric      Co.. 
1759.    1766.    1767.    1768.    1793. 

V.  Thomson       Houston       Electric 
Co..  1757,  1700. 
Durdin   v.    Hill.   1658,    1663,    1953. 
Durfee  v.   United  Stores,   1337. 
Durham  v.  Speeke,  1978. 
Durham   &    S.  R.   Co.   v.   Walker,    273, 

1106. 
Durkee  v.    Carr,   284. 
Durr  V.  Cha^e,   267. 
Duryee  v.    Turner,   1040.    1851. 
Dustin   V.   Cowdry.   15C7. 

V.  Curtis,    593,    662. 
Dutcher   v.    Culver,    1046,    1987,    19SS, 

2000,    2031,   2043. 
Dutton  V.    Colby.    1746. 

v.  Gerrlsh,    365.    559,    560. 

V.  Holden,    14. 

V.  Warchauer.  325.   2135. 
Dutro  v.  Kennedy,  1618,  2117. 
Duxbury  v.  Sandiford,   24. 
Dwight    V.     Cutler,     310.     1855,     1850. 

1866. 
Dwinell   V.    Brown.    534.   1098. 
Dwyer  v.  Carroll.  10,   14. 

v.   Rich,   271. 
Dye  V.   Denham.   20S6. 
Dyer  v.  Haley,   1627. 

V.   Robinson,  650,  789. 

V.  Wiprhtman,     1180,     1181,     1183, 
11S4. 
Dyett   V.    Pendleton,    1282. 
Dyke  v.    Taylor,   931. 
Dynevor  v.   Tennant,  88. 


E. 


Racrett  v.   Kent,   2022. 

Eadie   v.  Addison,  379. 

Eagrle  v.  Swayze.  623. 

Eaprle  Tube  Co.  v.  Holsten,  377. 

Eayleton    v.   Gutteridge.   2055. 

Eakin  v.  Brown.  793. 

Eames  v.   Mayo.  1899,   2057. 

Earl  V.   Malone,  1911. 

Karl    of   Suffolk's  Case,    2113. 

Earl  Orchard  Co.  v.  Fava,   1438,   1439, 

1746.    1749.    1750.    1792.    1794. 
Earle  v.   Arbogast.  729,  742,  744. 

V.   Hale.    486. 

V.   Kingsbury,    1075. 

V.  McGoldrick,   1786. 
Ea-shy   v.   Easby.   1128. 
Eason  v    .Johnson.    1931,    1961.   1963. 
East   End  Imp.  Co.  v.  Sipp.  700. 
East  Jersey  Iron  Co.  v.  Wright,  30. 
East    Jersey    Water    Co.    v.    Blgelow, 

680. 
East  Norway  Lake   Church  v.    Frois- 

lie,  335.  337. 
East  St.    Louis    Connecting   R.    Co.    v. 

Jarvis,    204. 
East  Tenn.  V.   &  G.  R.  Co.  v.  Morris- 
town,   839,   841. 
Easterby  v.  Heilbron.  361. 
Eastern  Tel.  Co.  v.  Dent,   934,  1375. 
Eastham  v.    Anderson.    255.    445. 
Eastland  v.  Sparks,  1885. 
Eastman   v.   Amoskeag  Mfg.   Co.,   680. 

v.  New  York,    548. 

V.  Perkins,    265. 

V.  Richard,     14S3. 

V.  Vetter,    1437,    14  47. 
Easton    V.    Mitchell.    62.    1490. 

V.   Penny,   1326,  1440,    1441. 

V.  Pratt  754. 
Easton  Tel.   Co.  v.   Dent,   1409. 
Eaton  V.   Hall    27. 

V.  Hunt,   315. 

V.  Jaques,    975,    976. 

V.  Lyon.   1525.  1532. 

V.   Southby.  2006.  2019,  2073. 

V.  Whitaker.    383.    384,    387,    388. 
395.    396. 

V.  Wilcox.  1364. 
Eaves  v.  Estes,  1565,   1568.   1601. 
Ebbetts  V.  Conquest,    769,   770. 
Eberlein  v.  Abel,  54.   1441. 
Eber.-50l   v.  Trainor,  7,  12. 
Eberson   v.  Continental   Inv.   Co..   611. 
Eberts  v.   Fisher,   1373. 


2176 


TABLE  OF  CASES. 


Eberwine   v.   Cook,   1358,   1419. 
Eblin  V.   Miller,   583,   617. 
Eccles  V.  Mills,   892,  901. 
Ecclesiastical   Com'rs   v.    Merral,    106. 

V.   O'Connor,    1149. 
Eccleston    v.    Chipsham,    903,   1831, 
Ecke   V.    Fetzer,    888,    893,    1704,    1709, 

1711. 
Ecker  v.  Chicago,  B.  &  Q.  R.  Co.,  950, 

951. 
Eckhardt  v.  Raby,  71,   73. 
Eckles  V.  Booco,  439. 
Eckman   v.  Atlantic  Lodg-e,   655. 
Eclipse    Oil    Co.    v.    South    Penn.,    85, 

102,   115. 
Eddy,  Matter  of,   1078,  1166. 
Eddy  V.  Coffin,   507,  834. 
Edelmuth  v.   McGarren,    302. 
Edesheimer  v.  Quackenbush,  542,  547. 
Edgar   v.   Jewell,    334. 

V.  Walker,  675,   677,  696. 
Edge  V.  Boileau,   343,   530,   1244. 

V.   Strafford,  35,  232,  237,  1882. 
Edgerton  v.   Page.   521,   528,   530,   1260, 

1262,   1281,  1284. 
Edghill   V.  Mankey,    1632,    1635,    1672. 
"  Edmands  v.  Rust  &  Richardson  Drug 
Co.,  1176,  1177. 
Edmison  v.  Aslesen,   578. 

V.  Lowry,    814,    1160,    1265,   1269. 
Edmonds  v.   Mounsey,    1311,   1369. 
Edmondson   v.   Kite,    1858. 

V.  White,   1719. 
Edmonston  v.  Webb,  136. 
Edmunds    v.    Missouri    Elec.    L.    &   P. 
Co.,    1881. 
V.  Wallingford,   2013. 
Edmundson   v.   Preville,   134. 
Edson    V.    Munsell,    2113. 
Edward  v.  Gale,  604. 
Edwardes    v.    Barrington,    927,    928. 
Edwards  v.  Anderson,   1918,   1919, 
V.  Candy,   1264. 
V.  demons,    235,   1990. 
V.  Cooper,    2095. 
V.  Cottrell,    1939,    1951,   1956. 
V.   Etherington,    557,   573,    1892. 
V.  Hale,     151,     1138,     1322,     1323, 

1327,    1467,    1471,    1476. 
V.  McClurg,    33. 

V.  McLean,    289,    577,    1222,    1230. 
V.  New    York    &    H.    R.    Co.,    30, 

565,   594,    640,   656,    658. 
V.  Noel,   163. 

V.  Perkins.    519,    621,    1627. 
V.  Rees,    1047. 


[REFERENCES  ARE  TO  PAGES.] 

Edwards    v.    Spalding,    955,    962.    973, 
1127,    1328. 
V.   State,   1950. 
V.  Van  Patten,  1706,  1711. 
V.  West,   1686,  1687. 
V.   Wickwar,    875,    876,    1311. 
V.   Wray,    324. 
Edwards'  Appeal,   1252. 
Edwardsville  R.   Co.   v.   Sawyer,   44. 
Edwick    V.    Hawkes,    809,    1505,    1506, 

1509. 
Efflnger  v.    Lewis,    103,    104. 
lEgan    V.    Abbett,    1098,    1108,    1111. 
I  V.   Gordon,    304. 

Ege    V.    Ege,    1027,    1247,    1252,    1989, 

2001,  2031. 
Egler  V.  Marsden,   1822. 
Ehinger  v.  Bahl,   584,   596. 
Ehrman     v.     Mayer,     18,     1014,     1065, 
1067,   1101,   1170,    1173,    1312. 
V.   Gates,  1922,  1961,   1962. 
Ehrmantraut  v.    Robinson,   348. 
Eichart  v.  Bargas,   1379,   1380,   1764. 
Eichenlaub  v.   Neil,   1373. 
Eichner  v.  Cohen,  851. 
Eimermann    v.     Nathan,     1338,     1342, 

1436. 
Einstein   v.  Levi,    1203,   1208. 

V.  Tutelman,    1209. 
Eisenhart  v.  Ordean,   1258,  1264,   1294, 

1301,    1302,    1446. 
Ela  V.  Bankes,  37,  80. 
Elam  V.    Hamilton,    2069. 
Eldaen  Realty  &   Construction  Co.   v. 

Bensamon,    1788. 
Elder  V.   Henry,  1820,    1849. 
V.   Robinson,    1677. 
V.   Schumacker,   200. 
Eldred  v.   Leahy,    519,   527,   1151,   1152, 
1844. 
V.   Sherman,    154,    1434. 
Eldredge  v.  Bell,  938,  1364,  1374. 
Eldridge   v.    Hoefer,    330,    1593,    1624. 

V.   Stacey,    2055,  2071. 
Electric  Tel.  Co.  v.  Moore,  1873,  1882. 
Elevator   Co.  v.   Brown,   1711. 
Eley's  Appeal,   210. 
Elford  V.   Clark,   1987,    2008,    2011. 
Elgar   V.    Watson,    1490. 
Elger   V.  Marsden,    1822. 
Elgutter   V.   Drishaus,    1332,    1436. 
Elias  V.  Snowdon   Slate  Quarries  Co., 

710. 
Elizabeth  Town   Sav.  Inst.   v.  Conroy. 

68. 
Elkin   V.   Moore,    345,   1063. 
Elliot   V.   Gantt,    845. 


TABLE  OF  CASES. 


217' 


[EEFEREXCES  ARE  TO  PAGES.] 


Elliott     V.     Aiken.     1167,     1219,     1260, 
1332,    1337. 
V.  Bankston,    285. 
V.  Dycke,    175. 
V.  Johnson,    895,   1703. 
V.  Missouri     Pac.     R.     Co.,     2128, 

2129. 
V.  Rogers,    1881. 
V.  Round   Mountain   Coal  &   Iron 

Co.,    1744. 
V.   Smith,   495,  496. 
V.  State,   11. 

V.   Stone,    48,  118,   1368,    1425,1762. 
V.  Stone  City  Bank,    132,  137. 
Ellis   V.   Bradbury,   854,    856,    918,    986. 
V.  Fitzpatrick,      439,      458,      1366, 

1753,    1786. 
V.  Jones,  1911,  1912. 
V.  Lamb,    20SS,    20S9. 
V.  McCormack,   1143,    1237. 
V.  Martin,    2095. 

V.  Paige,  118,  128,  242,  1422,  1635 
V.  Rice,    1041,   1042. 
V.  Rowbotham,  1179. 
V.   Taylor,    2030,    2079. 
V.  Waldron,   643. 
V.  Welch,    517,    526,    1187. 
V.  WrifTht,   1686. 
Ellison  V.  Dolby,  1638. 
KUs,  In  re,   981,    982. 
Ellsworth  V.  Hale,  105. 

V.  McDowell,   S09. 
Elmer  v.  Sand  Creek  Township,  1040, 

1839. 
Elms  V.  Randall,  504,   1739,   1779. 
Elphinstone     v.     Monkland     Iron     & 

Coal  Co.,  1054. 
Elsee  V.    Gatward,    609. 
Elston  V.  Jasper,   200. 
V.  Schilling,   1547. 
Elting  V.  Palen,    787,    789. 
Elwes  V.  Brigg  Gas  Co.,   271. 

V.  Maw,    1578,    1580. 
Elwood  V.  Forkel,  1S42. 
Ely  V.   Collins,   420. 
V.  Ely,   765,   952. 
V.  Fahy,    1237. 
V.   Randall,  103. 
V.   Spiero,    1061,   1242,    1842. 
Emerick     v.     Tavener,     16,     439,     464, 

1357,  1483,   1741. 
Emerson   v.    Spicer,    216,    218. 
V.  Sturgeon,   1506,   1507. 
V.  Thompson,    1121. 
V.  Weeks,  168,  1857. 
Emei-y,  In  re,  505. 
Emery  v.    Boston  Terminal   Co.,   239. 


Emery  v.  Emery,  1859. 
V.  Fuglna,   1627. 
V.   Hill.    926,   940,   1549. 
Emery  &  Barnott,  In   re,   1300. 
Emig  V.    Cunningham,   2006. 
Emmert  v.  Hays,  100. 
Emmes  v.  Feeley,   115,   116,  151,   1074, 

1078,  1183,  1494. 
Emmett  v.   Quinn,  888,   893. 
Emmons   v.    Scudder,    168,   1097,    1098, 

1471,    1487. 
Emory  Mfg.  Co.   v.  Rood,  1883. 
Emott  V.  Cole,  1021. 
Empire  Distilling  Co.  v.  McNulta,  985. 
Empson  V.  Soden,   1579,   1629. 
Emrich  v.  Union  Stock  Yard  Co..  283, 

1171. 
Emry  v.  Roanoke  Nav.  &  Water  Pow- 
er Co.,  1673. 
Emuss  V.   Smith,   1687. 
Engel  V.   Eureka   Club,    612. 

V.  Fitch,    393. 
Engel-Heller     Co.     v.      Henry     Ellas 

Brewing  Co.,   1788,  1793. 
Engels    V.    Mitchell,    115,    1419,    1787, 

1792. 
England   v.  Cowley,   2057. 
V.  Marsden,    2013. 
V.  Slade,  510. 
V.  Tredegar,    354. 
Engle  V.  Tennis  Coal  Co.,   450. 

V.  Thorn,    731. 
Engler  v.  Garrett,   866. 
English  V.  Duncan,  1907,  1934. 
V.  Key,  879,   1073,   1074. 
V.  Yates,  1369. 
Engstrom  v.  Merriam,   544,   548,  1157. 
Enley  v.  Nowlin,  1657. 
Ennis  v.  Lamb,  1740. 
Entelman  v.  Hagood,  1507,   1510. 
Enyeart  v.  Davi.s,    1323,   1325. 
Enys    V.    Donnithorne,    49,    354,    1834, 

1836. 
Bollng  V.  Zantzingor,   1108. 
Epley  V.  Eubanks,   876. 
Eppes  V.   Cole,    1855,    1856. 
Epping  V.  Devanny,   1238. 
Epstein  v.  Greer,  1442,  1460,  1851. 

V.  Saviano,  752,  755. 
Equator     Min.     &     Smelting     Co.     v. 

Guanella,  361. 
p-;,,,,itr-'i-'i'^  Life  Assur.   See.   v.   Schum. 

68,  1788, 
Kquny    JJldg.    &   Loan    Ass'n   v.   Mur- 
phy,  327. 
Krdman   v.   Moore.   1566. 
Erickson  v.  Jones,  1586,  1588. 


L.  and  Ten.  137. 


2178 


TABLE  OF  CASES. 


[BEFEEENCES  ARE  TO  PAGES.] 


Ernst  V.  Crosby,  302,  303,  304. 

V.   Strauss,    1287. 
Erskine  v.  Adeane,  367. 
V.  Armstrong,    385. 
Eschbach  v.  Hug-hes,  593. 
Eschman  v.  Atkinson,   825,   1271. 
Espen  V.  HInchcliffe,   1741,  1760,  1764. 
Espley  V.  Wilkes.   826. 
Esshom     V.     Watertown     Hotel     Co., 

1968,    1973. 
Essler  v.   Johnson,   1782. 
Estabrook    v.    Hug-hes,    1596,    1599. 

V.   Stevenson,    77,    83. 
Rstelle   V.   Dinsbeer,   1370,   1752. 
Estep  V.   Estep,   575. 
Esterly  Machine  Co.  v.   Spencer,  2080, 

2089. 
Bates  V.  McKinney,  1922,  1928. 
Estey  &  Co.  v.  Corn,   760. 
Esty  V.  Baker,  114,  115,  151,  156,  1424. 

V.  Wilmot,    1506. 
Eten  V.   Luyster,   98,    1001,    1351,   1386, 

1817. 
Etheridge  v.  Osborne,  543,  1152,   1238, 

1240,    1268,    1272,   1281. 
Etherton  v.  Popplewell,   2084. 
Etowah  Mln.  Co.  v.  Wills  Valley  Min. 

&  Mfg.   Co.,    893,    1703,   1704. 
Ettlinger     v.     Degnon-Mcl^ean     Con- 
tracting Co.,   18G2. 
Evans   v.    Bidwell,    481. 

V.   Conklln,    347,    1126,    1137,    1962, 

1963. 
V.  Davis,   801,  1366,  1393. 
V.   Elliott,   410,   411,   415,   426,  2030, 

2044,    2073,    2079. 
V.   English,    1904,    1913. 
V.  Enloe,   881,   1355. 
V.   Evans,    2116. 
V.  Groesbeck,   1951. 
V.   Hamrick,    879,    1101. 
V.  Herring,   2038,   2077,    2089. 
V.   Jackson,   209. 
V.   Lincoln  Co.,  844,   1025,   1996. 
V.  McKanna,    1309,   1324. 
V.   Mathias,  2044. 
V.  Muller,    1787. 
v.  Murphy,   608,   614. 
v.  Reed,    152,    1482. 
V.  Vaughan,  45,  524. 
V.  Voght,  1768. 
V.  Walshe,    1551. 
V.   Winona   Lumber  Co.,    236,    255, 

1893. 
V.  Wright,    2067. 
V.  Wyatt,    1390. 
Eve  v.   Crowder,    1902,   1914. 


Eveleth  v.   Gill,  1786. 
Evelyn   v.    Raddish,   754,   772. 
Everett     v.     Williamson,     1167,     2000, 

2021,   2035. 
Evcringham   v.    Braden,    1644. 
Everman  v.  Robb,  1629,  1971,  1974. 
Evers  V.   Weil,    633,   669. 
Everts    v.    Beach,    1879. 
Evertson   v.   Saviryer,   1118. 

V.   Sutton,    320,   1724,    1729. 
Ewer   V.   Moyle,    1065. 
Ewing   V.    Barnard,    1337    . 

v.   Bowling,    1746. 

V.   Cottman,   489,   1285. 

V.  Miles,    1364,    152C,    1535,   1547. 

V.   O'Malley.    1457,    1464. 

V.   Williams,     1143,     1146. 
Exall  V.   Partridge,    2013. 
Excelsior    Steam    Power    Co.    v.    Hal- 
stead,    1467,    1468,    1478. 
Eyer  v.  Jordan,  650,  660. 
Eyles  V.   Ellis,   1086. 
Eyre   v.    Dolphin,    1555. 
Ezelle  V.   Parker,    106,   455. 


F. 


Faber   v.    Phillips,    1844. 

Fabian  v.  Winston,  1378,  1379. 

Fabri   v.    Bryan,    1506. 

Facts  Publishing  Co.  v.  Felton,    1742. 

Fagan   v.   Vogt,    1051,    1664. 

V.  Whitcomb,    735. 
Fagg  V.   Dobie,    994. 
Fairchild  v.  Fairchlld,  1018. 
Fairmont    Lodge    v.    Tilton,    625. 
Faith  V.  Taylor,   1964. 
Faler  v.  McRae,   46. 
Falkner  v.    Beers,    439,   501,    1446. 
Fall  V.  Hazelrlgg,   308,   1867. 

V.   Marysville,  841. 

V.  Moore,  107,   1487. 
Pallert  Brewing  Co.  v.   Blass,  1982. 
Fallis   V.   Gray,   1098,   1244. 
Fallon    v.    Robins,    85,    301. 
Fanning  v.    Stimson,   963,    9G4,    1034. 
Farewell    v.    Dickenson    1021. 
Pargason  v.    Ford,    1924. 
Fargls  V.  Walton,    14,   15. 
Farley  v.   Craig,   1071,   1850,   1986. 

V.   McKeegan,   128,    243. 

V.   Parker,   200. 

V.  Thompson,    1083. 
Farlow  v.    Stevenson,   850. 


TABLE  OF  CASES. 


2179 


[REFERENCES  ABE  TO  PAGES.] 


Farmer   v.    Pickens,    471. 

V.   Rogers.    275,    1316,    1317. 
Farmers'   Bank  v.   Cole,   1249. 

V.  Mut.      Assur.      Soc,      971,      976, 
1129. 
Farmers'   Deposit  Nat.   Bank  v.   Wes- 
tern   Pennsylvania   Fuel   Co.,    204. 
Farmers'    High    Line    Canal    &    Res- 
ervoir  Co.   V.  New   Hainpshire  Real 
Estate   Co.,    2113. 
Farmers'  Loan  &  Trust  Co.  v.   Eaton, 
219,    220. 
V.  Northern   Pac.   R.   Co.,    985. 
Farmers'  &  Mechanics'   Bank  v.   Ege, 

878,    1103. 
Farnam   v.   Hohman,    1442,   1445,   1459, 

1460,   1763,   1765. 
Farnum  v.  Hefner,  920.   925,  929,   1350, 

1375,   1408,    1975. 
Faron   v.   Jones,    1217. 
Farr  v.  Kenyon,  933,  945,  946,   1400. 
Farrall  v.   Davenport,   387. 

V.  Hildltch.    341. 
Farrance   v.    ElKing^ton,   1502. 
Farrant   v.   Lovel,    734,    1002. 
V.  Ollnlus,   1053. 
V.   Thompson.    737,    1584. 
Farrar  v.   Stackpole,    1563. 
Farrington   v.   Baley,  1999. 
V.   Kimball.    994,    995. 
V.  Morgan,    1717. 
Farrls  v.   Houston,   414,    483,    492,   494, 

503. 
Farrow    v.    Edmundson,    17.    37,    335, 
1355. 
V.   Wooley.    1653. 
Farson    v.    Goodale.    114,    1426,     143G, 

1449. 
Farwell    v.   Easton,    804,    1399. 

v.   Grler,    1923. 
Farwell   &   Co.  v.   Stick.    1941. 
Fash   v.   Kavanagh,    119.    1228. 
Faulcon   v.  Johnston,    1640. 
Faulkner  v.   Alderson,   11. 
Favrot   v.    Mettler,    580. 
Fawcett   v.    Hall,   425,   915. 
Fawkner  v.   Booth,    1864. 
Faxon,   Ex  parte,   980. 
Faxon  v.   Jone.s.    1267,   1489. 

V.  Ridge,     282,     1965.     1967,     1973, 
1974. 
Fay   V.    Brewer,    738. 

V.   Halloran,    1021,    1102,    1119. 

Faylor  v.  Brice.   1364.  1372,   ISSO,  1415. 

Feagln    v.    McCowen,    2069,    2070. 

Featherstonaugh    v.    Bradshaw,    1875. 

V.  Fenwick,    1555,    1556,    1557. 


Fechter  v.  Schonger,  992. 

Feder  v.   Van   Winkle,  1565. 

Fehlauer  v.   St.  Louis,  675.  687,  790, 

Feilden    v.    Slater,    822. 

Feinstein   v.  Jacobs,   632,   633. 

Fejavary  v.  Broesch,    1968. 

Felch   V.   Harriman,    1627. 

Felcher   v.  McMillan,    1575.   1576. 

Felix   V.   Griffiths,   1191,    1209. 

Felker     v.      Richardson,     1322.     1342, 

1965. 
Fell   V.   Whltaker,    2082. 
Fellows    V.    Gilhuber,    659. 
Felton     V.    Chellis,    1481. 

V.   Deall,   221. 

V.  Millard,    1439.    1778. 
Fender  v.  Rogers,   1857,    1860. 
Fenn  v.  Grafton,  35. 

v.   Smart,    1385. 
Fennell  v.   Guffey.   888.   975.   1127. 
Fenner  v.   Blake,   1324,    1327. 

V.   Duplock,   473,  485. 
Fennlmore  v.   White,    1586. 
Fenny   v.    Child,    378,    1617. 
Fenton  v.  Logan,   2023. 

v.  Montgomery.    748. 
Fera  v.  Child,   644. 
Ferber  v.  Apfel,    1767,   1788. 
Feret  v.   Hill,   9,   294,   1359. 
Ferguson   v.    .    746. 

V.   Cornish,    63. 

V.   Etter,    88,   463. 

V.   Hubbell.   19. 

V.   Jackson,    1516,   1517,  1778. 

V.   Murphy,    1065,    1967,    1973. 

V.  Ray,   271. 

V.   Troop,    14,   15,    1286,   1287,    1288. 
Fernwood    v.    Masonic    Hall    Associa- 
tion,   1023,    1997,    2085,    2086,    2087. 
Ferrall   v.   Kent,   1651.   1C61. 
Ferrand   v.  Wilson.    711. 
Ferris  v.  Hoglan,   24.   27,   38,   167,   171, 
186. 

V.   Quimby,    1618. 
Fesmire  v.  Brock,   1879. 
Feust  V.   Craig,   375.   1337,   1338. 
Few   V.    Mitchell,    1915. 

V.  Perkins,    767.    1374,    1401. 
Feyreisen    v.    Sanchez,    54. 
Fidelity   Safe   Deposit  &  Trust  Co.   v. 

Armstrong,    101. 
Fidelity   Trust   Co.    v.   Kohn,    945. 
Field  v.  Adams,   2019. 

v.  Herrick,     195,      217,     444,     520. 
1147,    1150,    1151,    1484,    1736. 

V.   Howell.   48. 

V.  McGee.    312. 


2180 


TABLE  OF  CASES. 


[PEFERENCES   AEE  TO  PAGES.] 


Field  V.  Mills,  909,  922,  1001. 

V.  Mitchell,    2082. 

V.   Schieffelin,   216. 

V.   Snell,    904. 

V.   Swan,    416. 

V.  Wheeler,   1638. 
Flelden  v.    Tattersall,    786. 
Fielder  v.   Shields,  1879. 
Fields   V.    Argo,   1903. 

V.   Brown,    351. 
Fife   V.    Irving,   1081,   1082,   1249,   2033. 
Fifleld   V.    Farmers'   Nat.    Bank,    1564, 

1565. 
Fifty  Associates  v.  Grace,   1125. 

V.  Rowland,      1175,      1370,       13S0, 
1506,    1753. 
Files   V.   Mag-oon,    723. 
Filkins  v.  Steele,  1242. 
Fillobrown   v.    Hoar,    588,    1090,    1165, 

1295,   1372,    1842. 
Filton  V.  Hamilton   City,  348. 
Finch  V.   Miller,    1041,    1097,    2029. 

V.   Moore,    133,    134,    1436,    2029. 

V.   Shackleford,    720. 

V.   Throckmorton,    1368. 

V.  Underwood,     1537,     1538,     1539, 
1550. 
Finch's  Case,   1492. 
Flnck   V.   Rogers,    1280. 
Findlay   v.    Carson,    968. 

V.   Smith,   707,   709,  711,  713,  714. 
Findon   v.    McLaren,    2008. 
Fine  Realty  Co.  v.  New  York,  71. 
Fink  V.  Kincald,   499. 
Finkelmeier  v.   Bates,   45,   1701. 
Finkelstein  v.  Herson,   123,   138,   1446. 
Finley  v.   Bristol,  127. 

V.   Simpson,    347. 
Finn  v.  Morrison,   2056. 
Finney  v.   Cist,   1517. 

V.   Harding,   1932,   1951,  1960,  1963. 

V.   St.    Louis,    1489,    1588. 

V.   Steele,    562.    570. 

V.  Watklns,  1573,  1581,  1382,  1623. 
Finnigan  v.  Biehl,    690. 
Fiquet    v.    Allison,    1651,    1665. 
First   Congregational   Meeting  House 

Soc.  V.  Rochester,  348. 
First  English   E.  L.  Church  v.  Arkle, 

436,    439. 
First  Nat.  Bank  v.  Adam,   1583,   1601, 
1614,    1898,    1969,    1970,    1972, 
1973,    2038,   2057. 

V.  Beegle,   1644. 

V.  Consolidated    Elec.    Light    Co., 
1917. 

V.  Flynn,    1023,    1908,    1948. 


First  Nat.  Bank  v.  Lucas,  772. 
Firth  V.  Rowe,  909,   1350,  1574. 
Fiscliel  V.    Keer,    1254. 
Fischer  v.   Johnson,   109. 
Fischer-Leaf  Co.   v.   Caldwell,    2126. 
Fish  V.  Campion,   1065,   1067,  1068. 

V.  Dodge.    678. 

V.   Ryan,    1175,    1284,   1492. 

V.   Thompson,    13  4  5. 
Fishbaugh    v.    Spunaugle,    1945. 
Fishburne    v.    Engledove,    2086. 
Fisher  v.   Algar,    2063,    2066,  2082. 

V.  Allen,    1255. 

V.   Barrett,   834. 

V.  Deering,    874,    884. 

V.  Dixon,    1563. 

V.   Fisher,   1699. 

V.   Goebel,    606. 

V.   Grace,  2129. 

V.  Lewis,    893. 

V.   Lighthall,    573. 

V.  Nergararian,    605,    1238,   1528. 

V.   Pforzheimer,   973,  1133. 

V.   Rankin,    693. 

V.   Slattery,    1549. 

V.   Smith,   1094,  1769, 

V.   Thirkell,    688,    689. 
Fiske  V.    Bigelow,    1778. 

V.   Brayman,    1119. 

V.   Fraraingham      Mfg.      Co.,      37, 
265,    696. 

V.  Mcintosh,   195. 
Fitch  V.  Armour,    649,   1176,   1177. 

V.   Gosser,    2098. 

V.   Sargeant,    1168. 

V.   "UHndram,    312. 
Fitchburg  Cotton   Manufactory   Corp. 
V.     Melven,     410,     1074,     1157,     1164, 
1300,    1891. 
Fitton   V.    Hamilton   City,    202. 
Fitz  V.   lies,   801,    821. 
Fitzgerald    v.    Anderson,     1586,    1600, 
1603,    1622. 

V.   Beebe,    414,   817,    1300. 

V.   Fowlkes,    1939,    1949. 

V.  Jones,  1548. 

V.  Portarlington,    1057. 

V.   St.  George,   1473. 
Fitzgibbon   v.    Scanlan,    1556. 
Fitzherbert   v.    Shaw,    1597. 
Fitzhugh   V.   Baird,    1154. 
Fitzmaurice  v.    Bayley,    385. 
Fitzpatrick    v.    Childs,    1163. 

V.  Waring,    206,    207. 
Fitzsimmons    v.    Howard,    2093,    2094. 
Flagg   V.    Dow,    58,    1323,    1325. 

V.   Flagg,    324. 


TABLE  OF  CASES. 


2181 


[REFEKENCES  ARE  TO  PAGES.] 

Flaherty  v.   Andrews,  1510.  I 

V.  Nieman,    556,    669. 
Flanders   v.   Lamphear,    324. 
Flanagan  v.   Pearson,   16, 
Flanigen   v.   Philadelphia,   1802. 
Flannery  v.  Simons,   1224. 
Fleck  V.  Feldman,   1141. 
Fleetwood  v.  Hull,   807,  889. 
Fleisch   v.    Schnaier,    919. 
Fleischman  v.  Toplitz,   781,  1217,  1218, 

1219. 
Fleischner    v.    Citizens'    Real    Estate 
&    Inv.    Co.,    661.    675,    676,    680,    696, 
699. 
Fleishauer  v.  Bell,  1755,  1773. 
Fleming  v.   Collins,    731. 
V.  Davenport,   1907. 
V.  Fleming    Hotel    Co.,    930,    1412. 
V.  Gooding,    470. 
V.  Hughes.   1887. 
V.  King,     1259,     1260,     1261,    1287, 

1288,   1305. 
V.  Mills,    448. 
V.   Snook,    785. 
Fletcher  v.   Fletcher,  1741,   1805. 
V.  Herring,    787. 
V.   Kelly,    1569. 
V.  Livington,   21. 
V.  Rylands,    647. 
V.   Stevenson,    354. 
Flewwellin  v.   Lent,   1770. 
Flexner  v.   Dickerson,   197,   198. 
Flight  V.  Bentley,  899,  1103. 
Flint    V.   Pearce,    1707. 

V.   Sweeney,    1225,    1234. 
Flood  V.   Flood.    1861. 

V.  Huff,    633. 
Flock  V.   Hunting,    1691. 
Florala  Saw  Mill  Co.  v.  Parrish,  1634, 

1636,   1672. 
Flournoy   v.   Wardlaw,   1662. 
Flower   v.   Pearce,    282. 
Floyd,  In  re,  860. 
Floyd   V.   Floyd,   140,    1009,    1446. 
V.  Maddux,    604. 
V.  Mintsey,  17. 
Floyd-Jones  v.   Schaan,   1226. 
Fluder   v.    Vaughan,    1859. 
Fludier    v.    Lombe,    34. 
Flureau  v.   Thornhill,   551, 
Flury  V.  Grimes,  2069. 
Flynn  v.  Hatton,   593,  598,   662, 

V.   Trask,    586,   597. 
Fobes  V.   Shattuck,   786. 
Fogarty    v.     Junction     City    Pressed 

Brick  Co.,  813. 
Fogg  V.   Hill,   1890, 


Fogg  V.  Price,    1676. 
Fogle   V.    Chaney,    1358,   1759. 
Foley   V.   Addenbrooke,   345,    356,    357, 
903,    1576,    1831. 
V.  Constantino,    79. 
V.  Wyeth,    306,    2125. 
Folley   V.   Giles,    1528. 
Follln  V.  Coogan,   1371,   1377,   1753. 
Folmar  v.    Copeland,    1953,    1987, 
Folsom    V.    Carli,    1858. 
V.   Harr,    1676. 
V.  Parker,    650. 
Folts   V.    Huntley,    42,   518,    1180,   1181. 
Foltz    V.    Prouse,    1120. 
Folz  v.  Shalow,    1430. 
Fonda  v.   Lape,   1150. 
Fontaine  v.   Schulenburg  &   Boeckler 
Lumber  Co.,   856,   857,   888.    971,  972. 
Foote  V.   Cincinnati,    1180. 

V.   Colvin,    1666. 
Foquet   v.    Moor,    1324. 
Forbes   v.    Smiley,    1426,    1864, 

V.   Williams,    1612. 
Ford    V.    Clewell,    1901. 
V.  Cobb,    1601,    1617. 
V.   Erskine,   713. 
V.  Green,   328,    1933, 
V.  Tiley,    391. 
V.  Tynte,    2023. 
V.  Wycoff,    2091,    2092. 
Fordyce  v.  Hathorn,   1089,  1093.  1094. 

V.  Young,    445,    488,    515,    940. 
Forgotson   v.   Becker,    1168,    1319. 

V.  Brafman,    1982. 
Forgy  V.   Harvey,    471,    482, 
Formby   v.   Barker,    822. 
Forrest  v.   Buchanan,   586. 

V.  Durnell,     908,     948,     949,     1134. 
1918,    1919. 
Forrester    v.    O'Rourke    Engineering 

Constr.  Co.,  745, 
Forrester's    Case.    196. 
Forse   v.   Sovereen,   416. 
Forster  v.  Cookson,  1250,  1254. 
Forsythe   v.   Bullock,    468,    1778,    1782. 

V.  Price,    1638. 
Fort  V.   Orendorff,    590. 
Fort   Dearborn  Lodge  v.   Klein,   1507. 
Ft.   Worth  &  D.    C.    R.    Co.   v.   Wool- 

dridge,  1371. 
Fortescue  v.  Bowler,  1509,  1575,  1621. 

V.  Fowler,    729. 
Fortier    v.    Ballance,    511,    1355,    1356, 

1753. 
Fortman    v.   Goepper,    1601. 
Fosbrooke   v.   Balguy,   1558. 


2182 


TABLE  OF  CASES. 


[HEFERENCES  ABE  TO  PAGES.] 


Fosgate    v.    Herkimer    Mfg.    &    Hy 

draullc  Co.,   2136. 
Foss  V.   Marr,   1643. 

V.   Stanton,    767,  772,  1724,    1733. 
V.  Van   Drlele,    505,    1299. 
Foster,   Ex   parte,   1187. 
Foster  v.   Clifford,    379. 
V.   Eberle,  1304. 
V.   Elliott.   2125. 

V.  Goodwin,    314,    315,    316,    1918 

V.  Hilton,    1255. 

V.  Mapes.    536. 

V.  Marchant,    219. 

V.   Morris,    503. 

V.  Napier,    1940. 

V.   Oldham,    950. 

V.  Penry,    1783. 

V.  Pey.ser,    556,    559,    560. 

V.   Pierson,    1296,     1298. 

V.   Reid.   1002,   1970. 

V.  Robinson,    1638. 

V.  Spooner,    11. 

V.   Westmoreland,    1923. 

V.   Woodward,    867,    1275. 
Fottera.ll   v.   Armour,   1443. 
Foucar    v.    Holberg,    1133. 
Foulger  v.    Arding,    850. 

V.  Taylor,  1250,   1254. 
Foulke  V.   Millard,    1899. 
Fountain   v.   Whitehead,   2003,   2048. 
Fournier  v.    Brown.    1912. 
Foust   V.    Trice.    454. 
Fow    V.    Roberts,    696. 
Fowell    V.    Tranter,    85. 
Fowkes  V.   Joyce,    2011,  2076. 
Fowle   V.  Welsh,  536. 
Fowler  v.    Bott,    1194,   1202. 

V.   Carr,    1645. 

V.   Eddy,    2038,   2068. 

V.  Hawkins,    1965.    1976. 

V.   Johnstone,    707,    713. 

V.  Mott,  1191,  1194. 

V.  Mutual  Life  Ins.  Co.,  1713. 

V.  Payne,  952,  1191,  1210. 

V.  Rapley,  1926,  1927,  1928,  1931. 

V.  Roe,  1785,  1792. 

V.   Simpson,    174. 
Fowler  Cycle    Works   v.    Fraser,    583. 
Fox  V.    Althorp,    1852. 

V.   Brissac,    1629. 

V.   Buffalo  Park,   655,   656. 

V.   Dalby,    332,    333. 

V.   Jones,    1932. 

V.  Lynch,     730,     781,     1606,     1609, 
1623. 

V.  McKinney,    1965,    1973. 

V.  Macaulay,     1504. 


Fox  V.  Murdock,   1264,  1285. 

V.  Nathans.    51,    63,    64,    122,    123, 
125,    1447. 
Foxworth   V.   Brown,    1929,    1932,    1945. 
Fraer  v.   Washington,   1709. 
Frame    v.    Badger,    1627. 
Franceschini    v.    Chaucer,    1813,    1975 
Francis  v.   Harvey,    451. 
V.   Schoellkopf,    2121. 
V.  Wyatt,    2009,    2011. 
Franciscus  v.  Reigart,  840,  1012,  2062. 
Frank   v.    Conradi,    586. 
V.   McDonald,   303. 
V.  Maguire,   962,   1329. 
V.  Mandel,    593,    662. 
V.   New   York,   L.   E.   &  W.  R.  Co., 

950,    951,    973,    984,   985. 
V.   Simon,    626. 

V.   Stratford-Hancock,    1675,    1690, 
1982. 
Franke  v.    Hewitt,   378. 
Franklin  v.   Brown,  556,  558,   570,  573, 
574. 
V.   Carter,    2037. 
V.  Merida,    474,    476. 
V.  Meyer,    1942,    1973. 
V.  Palmer,    494,    495,    496. 
V.   Tracy,    5  67. 
V.   Triplett,    752. 
Franklin   Land,   Mill   &  Water   Co.    v. 

Card,   1484,    1695,   1709,    1710,    1711. 
Franklin    Tel.    Co.   v.    Pewtress,    1883. 
Fraser  v.  Davie,   1016,    2002. 

V.  Drynan,    57. 
Fratcher  v.   Smith,   233,   909,  918. 
Fra'tt  V.  Hunt,  782,   1669. 
Frazer  v.   Skey,   540. 
Frazier  v.  Caruthers,  1385,   1393,  1762. 
Frederick  v.  Callahan,    888,    893,   1704, 
1711. 
V.  Daniels,    1489. 
Free  v.    Stuart,   1589,   1592. 
I'"reeljorn    v.    LaLonde,    1723. 
Freeland  v.   Ritz.   386,   391. 
Freeman   v.    Collier  Racket  Co.,   1931. 
V.   Dawson,   1582,   1584. 
v.   Gordon,    1649. 
V.  Headley,    307,    1693. 
V.  Heath,    178. 
V.  Hunnewell,   637,   672. 
V.   MofTit,    177,    497. 
V.   Ogden,    1^9,    1352,    1806. 
V.   Rosher,    2088. 
V.   Slay,   1295. 
V.   Stacy,    1849. 
V.   L'nderwood,    185. 
V.   Wilson,    1511,    1512. 


TABLE  OF  CASES. 


2183 


[BEFEEENCES  ARE  TO  PAGES.] 


Freeny  v.   Hall,    2049. 
Freer  v.  Stotenbur.  709,  2098,  2114. 
Freese  v.  Arnold,  1659,  1665. 
Freldenberg  v.  Jones,  647,   648. 
French  v.    Burns,    833. 

V.   Fuller,   2116,    2135. 

V.  Macale,    1054. 

V.   New    York,    1609. 

V.   Pettlngill,    1283, 

V.   Prescott,   1613. 

V.   Richards,    617. 

V.  Wilier,    1717,    1802. 
Frepons   v.    Grostein,    608,    1160,    1162. 
Fretton   v.    Karcher,   2038,    2076,    2077, 

2078. 
Frey   v.   Drahos,    818. 

V.   Vignier,    600. 
Freytag-  v.    Anderson,   1362. 
Friary,    Holroyd    &     Healey's    Brew- 
eries V.  Singleton,  972,   999. 
Frledhoff  v.    Smith,    253. 
Friedland  v.   Myers,  542,    545,  552. 
Friedlander  v.   Ryder,  866.  1575,   1576, 

1579,    15S6,    1589,    1591. 
Friedman   v.   McAdory,   395. 
Friend    v.    Estabrook,    424. 
Frink  v.  Pratt,  1906,    1960. 
Frisbey    v.    Thayer,    2027,    2028. 
Frisble   v.    Price,    113. 
Frischberger  v.   Hurter,   661,   679,   688, 

700. 
Fritzuskle    v.    Wauroskl,    1794. 
Front   V.    Hardin,    S,    1664. 
Frontin  v.   Small,   431,   444. 
Frorer    v.    Hammer,    1931,    1961,    1963. 
Frost    V.    Akfon    Iron    Co.,    64,    1468, 
1469,    1474,    1490. 

V.   Earnest,    526,    1187. 

V.  Kellogg,   1652. 

V.   Wolff,    276. 
Fry    V.    Breckenri(lg'e,    2057. 

V.   Day,    297,    300,    1786,    1792. 

V.   Ford,    1906,    1952,    1953. 

V.  Jones,    39,    2000,    2002. 

V.  Partridge,   1329,   1330. 
Frye   v.    Gragg,    438. 

V.  Hill,    976,    994. 
Fryer  v.   Coombs,   499. 
Fryszka   v.    Prybeskl,   962. 
Fuchs  V.   Cohen,    1788. 
Fuhr  V.  Dean,   22,  1506. 
FulCher  v.  West,   2047,   2058. 
Fulkerson    v.    Lynn,    1945. 
Fuller   V.    Brownell,    1586,    1622. 

V.    Rose,    272. 

V.   Ruby,    1161,    1270,    1895. 

V.  Stelglitz,   1847.   1848. 


Fuller  V.  Sweet,  181,  474,  479. 

V.  Swett,   1165. 
Fuller    Co.    V.    Manhattan    Const.    Co., 

441,   528,   1845. 
Fuller-Warren   Co.   v.   Harter,   1619. 
FuUington  v.    Goodwin,    1569. 
Fulmer   v.   Grossman,    1475. 
Fulmerston   v.   Steward,  1323. 
Fulton   V.   Stuart,   918. 
Funk   V.   Haldeman,   28. 
Funk's    Lessee    v.    Kincald,    490,    500, 

874. 
Funston  v.   Hoffman,   2122,   2126. 
Furbush  v.   Chappell,   2017,  2052 

V.    Fisher,    2056. 
Furlong  v.   Leary,   116,   1737. 
Furman   v.   Galanopulo,    1488. 
Furneaux  v.  Fotherby,   2028. 
Furnival    v.   Crew,    1526. 
Furser  v.   Prowd,    1096. 
Fursman   v.    Pennace,    1812. 
Fusselman   v.   Worthington,   1753. 


G. 


Gabel  v.   Page,  65. 

Gable  v.  Preachers'  Fund  See,  1407. 

V.  Wetherholt,   461,   502. 
Gadsden   v.   Quackenbush,   1138. 
Gaertner  v.  Bues,  1808. 
Gaff   V.    Sims,    1837. 
Gaffield  v.   Hapgood,    1570,   1577,    1578, 

1586,  1622. 
Gaffney   v.    Megrath,    1804. 
Gage   V.   Acton,   1081. 

V.  Bates,  1378,  1379,  1759. 

V.  Campbell,  439,  455,  491. 

V.  Gage,  1879. 

V.   Smith,   1402,   1876. 
Gaines,  Ex  parte,  841. 
Gaines   v.    Green    Pond   Iron   Mln.   Co., 
707,    709,    710. 

V.  Keoton,   1943. 

V.  McAdam,  1338. 
Gailher    v.     Hascall-Richards     Steam 
Generator  Co.,  557. 

V.  Stockbridge,  984. 
Galbraith   v.    Rojrers,  .f908. 
Gale  V.  Bates,  786. 

V.  Edwards,  1105. 

V.  Hrckman,  835,  1230. 

V.  Oil  Run  P-trolotim  Co.,  1355. 
GalewskI  v.  Applebaum,  287. 


2184 


TABLE  OF  CASES. 


[REBEREXCtS  ARE  TO  PAGES.] 


Gallagher  v.  Bennett's  Heirs,  463,  504. 

V.  Burke,  1291,  1296. 

V.  Button,  5  32,  365,  637,  648. 

V.    David    Stevenson    Brew.     Co., 
1731. 

V.    Himelberger,     19.     1490.     186D, 
1864. 

V.  McQueen,  1990. 

V.  Reilly,  1813,  1814. 

V.  .Shepley,   787,  788. 
Galligher  v.  Connell,  490,  1793. 
Galloway,  In  re.  978. 
Galloway   v.  Kerby,    1490.   1491. 
Galloway's  Lessee  v.  Og-le,  464. 
Galveston   City   R.    Co.    v.    Gulf   Land 

Co.,  1193,  1205. 
Galveston  "WTiarf  Co.  v.  Gulf.  C.  &  S. 

F.  R.  Co.,  1860. 
Galvin  v.  Beals,  -375,  582,  586. 
Gambrell  v.  Falmouth,  2035. 
Gamon  v.  Vernon,  1127,  1129,  1821. 
Gandy  v.  Dewey.  1973. 

v.  Dickson,  2034. 

v.  Jubber,  122,  123,  699. 

V.  Wiltse,  365. 
Gange  v.  Lockwood,  760. 
Ganley  v.  Hall,  668. 

Gannett  v.  Albree.  803,  812,  946,   1539. 
Gano  V.  Hart,  2D 39. 

v.  Vanderveer.  234.  540. 
Gans  V.  Hughes,   819,   820,  829. 
Ganson  v.  Baldwin,  1450. 

V.  Tifft,  617,  909.  911.  1033. 
Ganter  v.  Atkinson,  31. 
Garber  v.  Gianella,  282.  866. 
Garcia  v.  Gunn,  941. 
Gardener  v.  Rhodes,  678. 
Gardenhire  v.  Smith,  1649. 
Gardiner  v.  Bair,  1529,  1532. 

v.  Derring,  715. 

V.  Williamson,  1019.  1166.  1998. 
Gardner  v.  Dakota  County,  1483,  1486, 
1489,    1490. 

v.  Fooks,   394. 

V.  Gardner,  1121. 

V.  Hazelton,  107.  375. 

v.  Ingram,  87,  1443. 

v.    Keteltas,    535,    545,    546.    1504, 
1736. 

V.  Rhodes,  690. 

V.  Samuels,  1704,  1712. 

V.  Watson,  893. 
Garland  v.  Aurin,  2125. 

V.  Gaines,  1136. 
Garner  v.  Byard,  962,  1151. 

V.   Cutting,   1936,   1925.   1926,   1927, 
1934,   1949,   1957. 


Garner  v.  Hannah,  846,  856,  869.  1025, 

1374.  1405.  1415. 
Garnett  v.  Jennings,  2078. 
Garnhart   v.    Finney,    1389,    1391,    1396, 

1538,  1539,  1544,  1552. 
Garrard  v.   Frankel,  301. 

V.  Tuck,  306. 
Garrett  v.  Clark,  128,  245. 

V.  Dewart,  1118. 

V.  Finch.  297. 

V.  Hughlett,  1987. 

V.   Scouten,  1409. 

V.  Somerville,  632. 
Garrett's  Appeal,  1092. 
Garrie  v.  Sclimidt,  1778. 
G^arrison  v.  Hutton,  542.  547. 

V.  Webb,  1904. 
Garroute   v.    White,    1918,   1919,    2092. 
Garsed  v.  Turner,  392. 
Garst  V.  Good,  1941. 
:5artland  v.  Hickman,  1371,  1585,  1591, 

1604. 
Gartrell  v.  ClaJ^  1920,  1927,  1935. 

V.  State,  949. 
Gartside  v.   Outley,   410,  411.  412.  416, 

426,  1300. 
Garvey  v.  Dobyns,  1075. 
Garvin  v.  Jennerson.  1866. 
Gasco  V.  Marshall,  2116. 
Gaskill  V.  Trainer,  1381. 
Gaskins  v.  Blake,  463. 
Gaslight  &  Coke  Co.  v.  Towse,  393. 

V.  Turner,  302. 
Gasnick  v.  StefEenson,  1935. 
Gatcli  v.  Garretson,  601,  834. 
Gately  v.  Campbell,  539,  579. 
Gates  V.  Goodloe,  1244. 

v.  Green,  1202,  1206,  1210. 

V.  Max,  1107. 
Gauggel  V.  Ainley,   1593, 
Gault  V.  Neal,  1751. 

V.   Shepard,  1329. 

V.  Stormont.  308. 
Gauntlett  v.  King,  2023,  2088,  2089. 
Gavan  v.  Norcross.  579,  597,  1197,  1207. 
Gaw  v.  Bingham,  1948. 
Gay,  In  re.  46,  55. 
Gay  V.  Davey,  1217. 

V.  Ihm,  275. 

v.  Joplin,  1692. 
Gay  Mfg.  Co.  v.  Hobbs,  49. 
Gaylord    v.    Cincinnati    German    Bldg. 

Ass'n,  959. 
Gazlay  v.  Williams,  930,  931. 
Gazzolo    V.    Chambers,    519,    535,    346, 

1151,  1310,  1504,  1736. 
Geary  v.  Bearcroft,  291.  2115,  2127. 
Geddes,  In  re,   1544. 


TABLE  OF  CASES. 


21S5 


[KEFEr.ENCES  ARE  TO  PAGES.] 


,     519, 

1404, 


Ex'r, 


GecJdis  v.  Folliett,  1309,  1349. 
Oedge  V.  Bartlett,  823,  S31. 

V.  Stioenberger,  844,  1908,  1938 
Gee  V.  Gee,  1072. 
Geer  v.    Boston   Little    Zinc   Co 
534,    1297,     1300,     1386, 
1405. 
V.  Traders'  Bank,   209. 
Geiger  v.  Braun,  134,  244,  1430. 
Geiger's     Adm'r     v.     Ilarman's 

1251,  1902. 
Geisler  v.  Acosta,  1759. 
Gelof  V.  Morgenroth,  687. 
Gelston  v.   RuUman,  1898. 

V.   Sigmund,   1521,   1736,    1778. 
General  Assur.   Cn.   v.   Worsley,    1456. 
Genet    v.    Delaware   &   Hudson    Canal 

Co.,  33,  1047. 
Geneva  Mineral  Springs  Co.   v.   Cour- 

sey,  240,  955. 
Genin  v.  Ingersoll,  486. 
Gensler  v.  Nicholas,  1522,  1794. 
Gent   V.   Harrison,   731. 
Gentle  v.  Faulkner,  924. 
Gentleman  v.  Soule,  18. 
George  v.  Coates,  850. 
V.  Fisk,  2  397,  2117. 
V.  Goldsbj',  193. 
V.  Mahoney,  1770. 
V.  Putney,  504,  1163,  1297,  1299. 
George    A.    Fuller    Co.    v.    Manhattan 

Const.  Co.,  441,  528,  1845. 
George's    Creek    Coal    &    Iron    Co.    v. 

Detmold,  321,  324,  730. 
Georgia    Southern    R.    Co.    v.    Reeves, 

348. 
Georke    v.    Wadsworth,    817,    820,    825. 
Gerbert  v.   Sons  of  Abraham,  1593. 
Gerhart    Realty    Co.    v.    Brecht,    1171, 
1530. 
V.  Weiter,  1457. 
Gerlach  v.  Walsh,  1790. 
German  v.  Chapman,   803. 
German  Sav.  &  Loan  Soc.  v.  De  Lash- 
mutt,    200. 
V.  Weber,   1601. 
German   Society   v.    Philadelphia,    852. 
German  State  Bank  v.   Herron,   1907, 

1426. 
Gerrard  v.  O'Reilly,   1053. 
Gerry  v.  Siebrecht,  361,  1049. 
Gerson  v.  Norman,  1912. 
Gerzebek   v.    Lord,    584,    586,    600,    601, 

603,  753,  776,  899,  900. 
Gett  V.  McManus,  1612. 
Gettysburg  Elec.  R.  Co.  v.  Electric  L. 

IT.  &  P.   Co.,  764,  952. 
Ghegan  v.   Young,  963,   1034,  1124. 


ahio  V.  Shutt,  1906,  1936,  1955. 
Gibbens  v.  Thompson,  1035,  1758. 
Gibbins  v.  Buckland,  510. 

V.   Howell,  220. 
Gibboney  v.  Gibboney,  246. 
Gibbons  v.  Dayton,   135,  1468,  1474. 

V.  Dillingham,   2115. 
Gibbs  V.  Cruickshank,  320,   1989. 

V.  Horton    Ice    Cream    Co.,    262. 
V.   Ross,  1035. 
Gibson  v.   Courthope,  1883. 
V.  Ellor,  777. 
V.  Farley,  1120. 
V.   Gautier,   1936,   1948,   1956. 
V.    Hammersmith    &    City    R.    Co., 

1575,    1577,    1584,    1587. 
V.   Ireson,  2007. 
V.   Kirk,    1822,    1894. 
V.  Lock,  2080. 
V.  Mullican,  2013. 
V.   Needham,   372,  377. 
V.  Poarsall,  302,  303. 
V.  Perry,  1194,  1210. 
V.  Princeton  Bank,  1255. 
V.   Soper,    200. 
V.  Wilcoxen,  256. 
Giddens  v.  Boiling,  1739,  2094. 

V.  Dodd,  87. 
Giddings  v.  Felker,   963. 

V.  Giddings,  1555. 
Gies  V.  Storz  Brew.  Co.,  439,  1718. 
Giffln  V.  Martel,  1508,  1511. 
Gift'ord  V.  Meyers,  1652. 
Gilbert  v.   Greenbaum,   1906,   1922. 
V.  Henck,   1144,   1146. 
V.  Moody,  2021. 
V.  Port,   31S,  1674,   1CS6,  1687. 
V.  Price,   1527. 
Gildersleeve  v.  Ault,  2310. 

V.  Overstolz,   1292. 
Giles  V.  Austin,   1415. 

V.      Comstock,     1037,      1040,      1158, 

1159,  1164. 
V.   Bbsworth,   446,    494,    lOSl,    1989, 

2033,   2045,   2050,   2053. 
V.   Hooper,   843,   846. 
V.  Shepard,  1164. 
V.   Simonds,   22,  733. 
V.  Spencer,   2031. 
Gilfoyle  v.  Cabill,   138.  1430. 
Gilhooley   v.    Washington,    1154,    1281. 

1282,   1302,    1840,   1892. 
Gill  V.  Buckingham,   1958. 

V.   Middleton,  583.  609,   610. 
"rillard    V.   Cheshire  Lines  Committee. 

238,   291. 
Gillespie  v.  Hendron,   1860. 
V.   Holland,   294. 


2186 


TABLE  OF  CASES. 


[kefebences  are  to  pages.] 


Gillespie  v.  New  York,  1188. 

V.  Thomas,  1188. 
Glllett  V.  Mathews,  498. 
Gilliam  v.  Moore,  503. 

V.  Smither,   1945. 
Gillian  v.  Norton,  812,  944. 
Gillick  V.  Jackson,  636. 
Gillingham  v.  Gwyer,  2045. 
Gillvon    V.    Reilly,    62a,    631,    632,    665, 

669. 
Gilman  v.  Brown,  1187. 

V.  Elton,  2008. 

V.  Hoare,   424,  4  25. 

V.  Milwaukee,   1478. 

V.  Wills,  164  3. 
Gilmore  v.  Hamilton,  57,  103. 

V.  H.  W.  Baker  Co..  1764. 
Gilpin  V.  Adams,  164. 
Girtman  v.  Stanford,   2069. 
Gisbourn  v.  Hurst,  2008,  2080. 
Gitting-s  V.   Nelson,  1917.   1975. 
Given   v.   Blann,   2018. 
Givens  v.  Caudle,   774. 

V.  Easley,  1918. 

V.  Miller,  1796. 

V.  Mullinax,  481,  483. 

V.    Van   Studdiford,    678. 
Gladwell  v.  Holcomb,   1488. 
Glain  v.    Sparandeo,   639. 
Glanz  V.  Schaefer,  1759. 
Glascock  V.  Robards,  307. 
Glasdir  Copper  Mines,  In  re,   1622. 
Glaser  v.  Cumisky,  1700,  1701. 

V.  Priest,   1828. 
Glasg-ow  V.  Ridseley,   1906. 
Glasner  v.  Fredericks,  1134. 
Glass  V.  Colman,  659,  700. 

V.  Patterson,  1076. 
Gleason   v.   Boehm,   630,   635,    637.   665, 
667,  670. 

V.   Gleason,   1015. 
Glen  V.  Dungey,  1882. 
Glenn,  In  re,  1741. 
Glenn  v.  Hill,   575,  593,  609. 

V.  Thompson,   1750. 
Glenwood  Lumber  Co.  v.  Phillips,  24. 
Glickauf  v.  Maurer,   610,  612,  623. 
Glidden  v.  Bennett,  1562. 
Globe    Marble    Mills    v.    Quinn,    1581, 

1583,  1590,  1614,  1617. 
Gluck   V.    Baltimore,    1180,    1183,    1184, 
2131. 

V.  Elkan,  1399,  1717. 
Glynn  v.  Thomas,  2036. 
Gocio  V.  Day,  1693. 
Godard  v.  Gould,  1617. 
Goddard   v.   Brown,    207,  208,  210. 

V.  Gaines,  1146. 


Goddard  v.   Hall,    1875. 
V.   Keate,   1134. 

V.  King,  1050. 
Godfrey  v.  Black,  810,  812,  944. 

V.  India  Wharf  Brew.  Co..  606. 

V.  Townsend,  2136. 

V.  Walker,  111. 
Godley  v.  Hagerty,   652,   654. 
Godwin  v.  Harris,  1377,  1385,  1393. 
Goebel   v.   Hough,    8,    10,    12,    94,   1736, 

1755,  1844,  1S45. 
Goeing  v.  Outhouse,  1944,  1945. 
Goelet  V.  Lawlor,  1755. 

V.  Roe,   1736. 

V.  Spofford,  84. 
Goerl  V.   Damrauer,   545,  1148,   1149. 
Goesse  &  Remmers  Bldg.  &  Const.  Co. 

V.  Kinnerk,  1804. 
Goff  V.  Harris,  269. 
Gold  V.  Gleason,  2025. 
Goldberg  v.  Lloyd,  1226,   122S,  1233. 

V.  Mittler,  1477. 

V.  Wood,  281,  349. 
Golding  V.  Brennan,   1329. 
Goldman  v.  Gainey,  544,  548. 

V.   New   York  Advertising  Co.,   25, 
28. 
Goldsberry  v.  Bishop,   318,  1718. 
Goldsborough    v.     Gable,     1055,     1478, 

1483,  1488,  1490. 
Goldsmith  v.  Darling,  1332. 

V.   Schroeder,    1334,    1339,    1341. 

V.  Smith,  1779. 

V.  Wilson,  918. 
Goldstein  v.  Asen,  1292. 

V.   Hollingsworth,   774,  850. 
Golob  V.  Pasinsky,  593,  623,  626. 
Gomber  v.  Hackett,  13.88. 
Gomez  v.   Gomez,  206,  1523,   1540. 
Gooch  V.  Clutterbuck,  996. 
Goodall  V.  Gerke  Brew.   Co.,   302. 
Goode  V.   Howells,   1446. 

V.  Ruehl,  856. 

V.  Webb,  51. 
Goodenow   v.   Allen,    105,   118. 
Goodfellow  V.  Noble,  245,  605. 
Goodgion  v.  Latimer,   1730. 
Goodland  v.  Ewing,  379,  1133. 
Goodlet  V.  Cleaveland,  1734. 
Goodman  v.  Hannibal  &  St.  J.  R.  Co., 
1592. 

V.  Jones,  182. 

V.  Malcolm,  1355. 
Goodnow    V.   Pope,    1721. 
Goodrich  v.  Jones,  787. 

V.  Sanderson,  536. 
Goodright  v.  Cator,  1380,   1402. 

V.  Cordwent,  1463. 


TABLE  OF  CASES. 


2187 


Goodrfght    v.    Davids,   941,    942,    1387, 
1400. 

V.  Mark,  85. 

V.  Rlchard.son.  49,  63,  86,  125. 

V.  Vivian,  725. 
Goodsell  V.  Rutland  Canadian  R.  Co., 

266. 
Goodtltle  V.   Herbert,  113. 

V.   Holdfast,   1413. 

V.  Saville,  1364. 

V.  Way,  377. 

V.  Woodward,  1439, 
Goodwin  v.  Clover,    242.   249,   251.  255, 
2124,   2125. 

V.  Goodwin,  46. 

V.  Hudson,  1105,  1117. 

V.  Mitchell.  1935. 

V.  Noljle,  9S1,  982. 

V.  Perkins,  105. 

V.  Saturley,  934. 

V.   Sharkey,   1042,   2001. 

V.  Smith,  1644.  1645. 
Goodwine  v.  Barnett,  1729. 
Goodyear    Shoe    Mach.    Co.    v.    Bo.ston 

Terminal  Co..  527,  1187,  1188. 
Gordon  v.  Armstrong,  1662. 

v.  Cummings,   630,   666. 

v.  George,  786,  887. 

V.  Harper,  921. 

V.  Miller,  1577. 

V.  Peltzer,   688,   689,  794. 

V.  Richardson,    1415. 
Gore  V.  Gardner,  1658. 

V.  Goston,    1254. 

V.   Lloyd,    265,    372,    376. 

V.  Stevens,    505. 
Gorman  v.  Bellamy,   1711. 

V.   Keongh,    302,    303. 
Gorsuch  V.   Rutledge,  280. 
Gorton    v.    P^alkner,    2005,    2011,    2018, 
2023. 

V.  Gregory,  888,  891,   1705. 
Gorton's  Case,   281. 
Gose,  In  re,  930. 
Go.^hen  v.  People,   1404,  1505. 
Goshorn   v.    Steward,    1882,    1890. 
Go.ss  V.  Ijord  Nugent,  1559. 

V.   Woodland    Fire   Brick  Co.,    988. 
Goss     Heating     &     Plumbing     Co.     v. 

Oviatt,  1205,   1208. 
Gossett  V.   Drydale,   1636,   1639. 

V.  Fox,  1743. 
Gott  V.  Gandy,  574. 
Gottsberger  v.  liadway,  583. 
Gough  V.  Howard,  788. 

V.   Wood,    1620. 
Gould,  Ex  parte,  1604,  1605. 
Gould   V.   Brad.^tork,   2055. 

V.  Bugbee,  1365. 


[SBFBRBNCCS  ARE  TO  PAGBS.] 

Gould 


Eagle    Creek    School    EHst. 
334,    918,   919. 

V.  Moring,    1137. 

V.  Stafford,  677,  697. 

V.   Sternburg,   2115. 

V.  Thomp.son,  310,  1425,  1856,  1865, 
18C6,  1867. 

V.  Web.ster,  1636. 
Gouldsworth  v.  Knights,  897. 
Gourdier  v.   Cormack,    2097. 
Gourlay  v.  Somerset,  1,545. 
Gouverneur  v.   New  York,   853. 
Governor  v.  Bancroft.  1956. 

V.   Davis,   1936. 
Gowan   v.  Christie,  1018. 
Gowen  v.  Shaw,  11S80. 
Gower  v.  Postmaster  General,  891. 
Grabenhorst   v.    Nicodenius,    1289. 
Grabfolder  v.   Gazetti,   1904. 
Grace,  Ex  parte,  1558. 
Grace  v.  Haas,  347. 

V.  Michaud.   1428,   1431,   1447.   1450. 

V.   Morgan,   2082. 

V.   Shively,   2027,   2028. 
Gradle  v.  Warner,   1389,   1395,   1688. 
Grady  v.   Il)ach,   1877. 

V.  Wolsner,  675,  677,  686. 

v.  Worrell,  215. 
Graff  V.  Lemp  Brew.  Co.,  595. 
Graffam  v.  Pierce,  367. 
Grafton   v.  Brigham,   1811. 
Graham   v.  Allsopp,    10S7. 

V.  Anderson,  1160,  1332,  1436.  1441. 

V.  Chatoque  Bank,  217,  218. 

V.  Dempsey.  1472. 

V.  Hiesel,  302. 

V.  Houston,  39,  1648. 

V.  James,  1546,  1553. 

V.  Moore,  4  8.8,  502. 

V,   Seignous,   1961,    1970. 

V.  Tate,  841,  842,  1090,  1091, 

V.   Whichelo,    1329,    1330. 

V.   Womack,    1404. 

V.  Woodson,  1062. 
Gramm  v.  Sterling,  379. 
Grand  Canal  Co.  v.   McNamee,   730. 
Grand  Hapids   Booming  Co.   v.  Jarvis, 

2103,   2124. 
Grand  United  Order  v.  Merklin,  327. 
Granger  v.  Brown,  1762. 

V.  Parker,   329,   139,  472,  490. 

V.   Riggs,  318.  1074. 
Granite    Bldg.    Corp.    v.    Greene,    807, 
809,    810,    889.    922.    1387,    1388,    1390, 
1399. 
Grannis  v.  Clark,   540,   545. 
Grant  v.  Gill,   S83. 

V,  Oxford   Local  Board,   26. 


21S8 


TABLE  OF  CASES. 


[EEFEPENCES  AKE  TO  PAGES.] 


Grant  v.   Ramsey,   261,  263. 
V.  White,   492,   1421.   1487. 
V.  Whitwell,  1904,  1916,  1925,  1931. 
Grant's   Appeal,    1251,    2027. 
Grashaw  v.  Wilson,  364. 
Grauel  v.  Sceller,   301. 
Gravenor  v.    WooJhouse,   473,   480. 
Graver  v.  Fehr,  1744. 
Graves,  In   re,  1687. 
Graves  v.  TJerdan,  272,  521,  628,  1196. 
V.  Cameron,  1214. 
V.  Porter,    1075,   1128. 
V.  Walter,  1965. 
V.  Wells,  1634. 
Gray  v.  Bompas,   1465,  1469. 
V.  Bremer,  1949. 
V.  Cornwall,  1709,  1710,  1711. 
V.   Gaffl,   365,  1302. 
V,   Johnson,    445,    451,    1832,    1895. 
V.   Kaufman   Dairy   &   Ice   Cream 

Co.,   1339. 
V.  Kerr   Land   Co.,    6. 
V.  Lafayette  County,  159. 
V.  Liaion,  1295,   1296. 
V.    Maier    &    Zobelein    Brew.    Co., 

1778. 
V.  Oyler,  1598. 
V.  Parker,  44. 
V.  llawson,   2013. 

V.   Reynolds,  1S9,  1718,   1727,  1756. 
V.     Robinson,    39,     184,     186,     164S, 

1652,  1662. 
V.  Roj^ers,   1103. 
V.  Shields,   51. 
V.  Stait,  2326. 

V.  Stevens,  1631,  1664,  1965. 
V.  Wilson,   1251. 
V.  Worst,   1646,   1647. 
Grayson  v.  Buie,  780. 
Greason    v.    Ketteltas,    206,    207,    212, 

1544,  1545. 
Great  Western  R.  Co.  v.  Smith,  1352. 
Greber  v.  Kleckner,  2115,  2127. 
Greco  v.  Bernheimer,  7U3. 
Greeley  v.  Greeley,  2093,  2095. 

V.  Winsor,  1967. 
Green  v.  Lell,  1848. 
V.  Dietrich,  315. 
V.    Eales,    585,    586,    587.    593,    592, 

596,  598,  C18. 
V.  Eden,  754. 
V.  Hague,  645. 
V.  James,  880. 
V.  Kroeger,  1476. 
V.  Lindon  Cemetery  Co.,  1877. 
V.  Low,  1680. 
V.  Mann,  575,  604,  606. 
V.  Missouri  Pac.  R.  Co.,  1503,  1721. 


Green  v.  Phillips,   1564. 

V.  Redding-,   578,  1213,  1225. 
V.  Sun  Co.,  2398. 
V.  Tourtellott,   1726. 
V.  Williams,  54S,  549. 
Green's  Case,  1387,  1390,  1391,  1394. 
Greenaway  v.  Adams,  165,  922. 

V.  Hart,  899. 
Greenberg  v.  Murphy,  1278. 
Greene  v.  Hague,  646. 

V.   Ker,   365,   369. 
Greenleaf  v.  Allen,  352,  964,  1132,  1822. 
Greeno  v.  Munson,  16,  501. 
Greenslade  v.  Tapscott,  936,  928,  947. 
Greenup  v.  Vernor,  166,  318,  1S73. 
Greenwood  v.  Moore,  16,   17,  516. 
V.   Strother,    230. 
V.  Tyber,  191. 
V.  Wetterau,  528. 
Greer  v.  Van  Meter,  827. 

V.  Wilbar,  1729. 
Gregg,  In  re,  1063,  1091. 
Gregg  V.   Boyd,    1407,    1630,   1641. 
V.  Tamsen,  1860. 
V.  Von  Phul,   308. 
Greg-g's  Case,  1413. 
Gregor  v.  Cady,   574,   575,  609,  610. 
Gregory  v.  Crab's  Heirs,  494. 
V.  Deidge,    485. 
V.  Hill,   1510. 
V.  Lee,  197,  199. 
V.  Michaels,  214,  468. 
V.  Mighell,   385,   388. 
V.  Rosenkrans,  1046. 
V.  Wilson,   395,   1439. 
Greider's  Appeal,  954,  1168,  1315,  1317, 

1347,  1996. 
Greiner  v.  Cota,  1528. 
Grescot  v.  Green,  600,  776,  900,  971. 
Gresham  House   Co.   v.   Rossa  Grande 

Gold  Co.,  1459. 
Greton  v.    Smith,    244,    254,    1270,   1284, 

1476,  1864,  1876. 
Gretton  v.   Mees,   1893. 
Greville   Nugent   v.   Mackenzie,   1018. 
Grey  v.  Cuthbertson,  893,  1703. 
V.  Friar,  85,  86. 

V.   Sheridan  Elec.   Light  Co.,  1301. 
Gribbie  v.  Toms,  1064,  1065,  1163,  1274, 

1276,  1301. 
Gridley  v.  Bloomington,  582,  661,  679, 
687,    688,    700. 
V.   Binbigler,   851. 
Grier  v.  McAlarney,  1988. 
Griesheimer  v.   Bothman,   534,   649. 
Griffon  v.    Ford,   208,    209. 

V.  Manice,  643,  671.  672. 
Griflin  v.  Barton,  77,  81,  1733. 


TABLE  OF  CASES. 


2  ISO 


[REFBRKNCES  ARE  TO  PAGES.] 


Griffin   v.   Clark,    1759,   1764. 

V.  Fello'ws,  1354. 

V.  Griffin,  1556. 

V.   Knisely,  373.  376,  1490,  1491. 

V.  Marine  Co.,  1631. 

V.   Phoenix  Pottery  Co.,   848. 

V.  Ransdell,  1585. 

V.  Rochester,  328. 

V.  Scott,  2058. 

V.  Sheffield,   152,  437,  453,  464. 

V.  Tomkins,  1401. 

V.   Woodvi^ard,  2033. 
Grifflng  Bros.   Co.   v.  Winfield,   450. 
Griffith  V.  Brackman,  331,  1730. 

V.  Burlingame,    1109,    1112. 

V.  Collins,  309,  316,  1727. 

V.   Gillum,  1945,  1946. 

V.  Lewis,   122,  684,  700. 

V.  Schwenderman,  197. 
Griffiths  V.  Puleston,   237,  1632. 
Grig-gs  V.  Hartcn,  1941. 
Grig-sby   v.    Western    Union    Tel.    Co., 

375. 
Grimes,  In  re,  981. 
Grimman   v.    Legge,    1074,    1168,    1332, 

1891. 
Grimwood    v.    Moss,    1394,    1395,    1396, 

1402,  1996. 
Grisham  v.  Lutric,  239,  240. 
Griswold  v.  Branford,  246. 

V.  Butler,  200. 

V.  Cook,  186. 

V.  Morse,  980,  1349. 
Grizzard  v.   Roberts,    439,  501,   1742. 
Grizzle  v.  Pennington,   45,  950. 
Grobham  v.  Thornboroxigh,  1164,  ISSO. 
Groesbeck  v.  Evans,  1936,  1951. 
Grogan    v.    Broadway    Foundry    Co., 
692. 

V.  Magan,  885. 
Grommes   v.    St.    Paul    Trust   Co.,    962, 
1124,    1141,    1174,    1176,     1179,    1328, 
1369. 
Groome   v.  Ogden  City  Corp.,  518,  526. 
Gross  V.  Bartley,  1923. 

V.   Chittim.  S76,  1111. 

V.  Heckert,  552. 
Grossman  v.   Lauber,  1087. 
Grossman's  Appeal,  1802. 
Grosvenor   v.    Henry,    334,    1421. 
Grosvenor  Hotel  Co.  v.  Hamilton,  532, 

1278,  1295. 
Groton    Mfg.    Co.    v.    Gardiner,    1971, 

1976. 
Groustra  v.  Bourges,   117. 
Grove,  Ex  parte,  1899,  2021. 
Grove  v.  Barclay,  1884. 
Grubb  V.  Bayard,   33. 

V.  Grubb,  30. 


Grubbs  v.  Stephenson,  1903. 
Gruhn   v.   Gudebrod  Bros.  Co.,  1850. 
Grumley  v.   Webb,    1555. 
Grund    v.    Van    Vleck,    2088. 
Grundin   v.   Carter,   99,   512,   8S0,   1100. 
Grnndy    v.    Martin,     406,    1458,     1737, 

1750. 
Grunnell  v.  Welch,  2036. 
Grute  V.  Locroft,  49. 
Grymes  v.   Boweren,   1575,   1578,   1579. 
Guaranty  Building  Co.,   In  re,  1752. 
Guay  V.    Kehoe,    1693. 
Gubbins  v.  Equitable  Trust  Co.,  1967, 

1973,    1975. 
Gude  Co.   V.  Farley,  28,   272,   798,   837, 

927. 
Gudgel  V.   Southerland,   1077. 
Gudgell  V.   Duvall,    229,    1990. 
Gudgeon  v.  Bessett,  2S0. 
Gudger   v.    Barnes,    453. 
Guess  V.  McCauley,  308. 
Guest   v.  Beeson,   200. 

V.  Caumont,    1885. 

V.  Opdyke,   189,   190,   1651,    2016. 
Guetzkow   Bros.   Co.  v.   Breese,   862. 
Guffy  V.   Hukill,    1371,    1402,   1403. 
Gugol   v.    Isaacs,    1159,    1181. 
Gulf,   C.   &   S.  F.    R.   Co.  V.  Caldwell, 
2123. 

V.  Cusenberry,    151,    156. 

V.   Settegast,     709,     735,    782,     918, 
948,    949,    138S,    2098. 

V.   Smith,    2098,    2099,    2124. 

V.   Thornton,    2130. 
Gulledge   v.    White,   1786. 
Gulliver   v.    Fowler,    10,    364,   365,   582, 

583,   591,    1218,    1222. 
Gunn  v.   Scovil,  1855,   1856. 

v.   Sinclair,    88,    90,   139,   494,   1429, 
1734,    1782. 
Gunning  v.   Sorg,   940,  1406. 
Gunnison  v.  Bancroft,  1824. 
Gunsolus  V.  Lormer,   1486,   2126,    2127. 
Gunter  v.  DuBose,   2094. 
Gustaveson  v.   Otis,   1842. 
Gustin  v.   Union  School   Dist.,   1689. 
Guth  V.   Mehling,    1288. 
Guthman     v.     Castleberry,     579,     625, 
2037. 

V.  Vallery,  98,   152,   399,   512,  1072, 
1432,    1493,   1872. 
Guthrie  v.   Guthrie,    1692. 

V.  Jones,    1569,    1570,    1573,    1582, 
1623. 
Gutman  v.  Conway,  1339. 
Gutteridge  v.   Munyard,   754,   760,  802. 
Guvenator  v.   Kenin,   1434. 


2190 


TABLE  OF  CASES. 


Guy   V.   Barnes,    2P8. 
Gwlnnell  v.   Earner,    703. 
Gwynn   v.   Jones,   16. 
Gwynne  v.   Mainestone,  66. 
Gybson   v.   Searls,   1331. 
Gyll  V.   Glass,  428. 


H. 


Haas  V.  Brown,  720,  781. 

V.   Ketc-ham.    1260,    1284. 
Haase  v.   Schickner,  1739. 
Habersham  v.    Epplnger,   2069. 
Hachett  v.   McNamara,   213,  1551. 
Hack   V.    Leonard,   1410. 
Hackett  v.   Marmet  Co.,  1366,  1421. 
V.   Richards,       1175,       1176,      1177, 
1813. 
Hackney  v.    Mclninch,   490. 

V.   State,    1950. 
Hadden  v.  Knickerbocker,   1932,   2014 

V.   Powell,    1902. 
Hadley  v.   Bernero,   73,    76. 
V.  Havens,    1774. 
V.  Morrison,    1869. 
V.   Taylor,    693. 
Haeussler  v.   Holman  Paper    Box  Co., 

1489.  ' 

Haffey  v.   Miller.    1011. 
Haflick  V.   Stober,    1589,    1603. 
Hagan   v.   Buck,   1410. 

V.  Gaskill,    87,    1376. 
Hagar    v.    Buck,    885,    888,    1412,    1416, 
1689. 
V.  Wikoff,    489. 
Hagerty   v.    Lee,    348. 
Hague   V.   Ahrens,    938,   939. 
Hahn  v.  Guilford,  468,  1778,  1782. 
Haight  V.  Cohen,   1057. 
Haines  v.  Beach,   120,  1291. 
V.  Chappell.    2069. 
V.   Downey,     300. 
V.   Graf    Mfg.  Co.,  1154. 
V.   Welch,    1639. 
V.  Worthington,    1889. 
Haizlip   V.    Rosenberg,    645,   697. 
Halbert  v.    Bruce,  85. 
Halbut   V.  Forrest  City,    202,    762,   776 
Haldane  v.  Johnson,   1096. 

V.  Newcomb,    756. 
Hale  V.  Burton,   1988. 
V.  Hale,    206. 
V.  Omaha  Nat.   Bank,    1976. 


[REFERENCES  ARE  TO  PAGES.  1 

Haley  v.  Boston  Belting  Co..  359,  972, 


1001,    1134. 
V.   Hickman's   Heirs,    1447. 
Hall  V.  Amos,   2080,  2088. 
V.  Beston.    365,   583. 
V.   Burgess,   1273,   1275,    1891. 
V.   Butler,    472,    486. 
V.   Center,    1689.    1690. 
V.  City    of    London    Brewery    Co., 

519,   526. 
V.   Combes,    268. 
V.   Craig,    1828. 
V.   Ewin,    811,    827. 
V.  Gould,   1176,    1179,   1813. 
V.   Haywood,    1355. 
V.  Horton,    392. 
V.  Hoxsey,    1146. 
V.   Irvin,      818,      825,      1263,      1265, 

12C9,     1270. 
V.   Jacobs,    1857,    1863. 
V.  Joseph     Middleby,      855,      1074, 

115S,    1175,  1179,    1180.   1267. 
V.   Lund,    820. 
V.   McGaugl^iy,    1953. 
V.   Myers.    1427.     1432,    1483,    1488. 
V.   Ochs.    1141,    1143,    1146. 
V.   Phillips,  361. 
V.   Powell,   268. 
V.  Ryder,   298,   299. 
V.   Smith,    1237,    1243,   1364. 
V.   Solomon,   349,    800. 
V.   Southmayd,   1886. 
V.   Wadsworth,    1432,    1437. 
V.  "Wallace,    306.    309,    310. 
V.   Warren,    1545,    1584,    1585. 
V.   Western     Transportation     Co., 
1SS3. 
Hall  Mfg.   Co.  V.    Hazlitt,   1623. 
Hall    Steam    Power    Co.    v.    Campbell 

Printing  Press  &  Mfg.  Co.,  1475. 
Hall     &     Paulson     Furniture     Co.     v. 

Wilbur,    459,    1779,    1804. 
Hallberg  v.   Brosseau,    286. 
Hallen   v.   Runder,   1584. 
Hallenbeck   v.    Chapman,    364,    1245. 
Haller   v.    Squire,    12.    1274,    1333. 
Hallet.  In  re,   209. 
Hallett  V.  Wylie,   373,   377.  1032.    1191, 

1210,    1240,    1272. 
Halley  v.    Troester,    200. 
Halligan   v.    Chicago    &    R.    L    R.    Co., 
2115. 
V.   Wade,    1165,    1171,    1274,     1283, 
1303. 
Halroyd  v.   Sheridan,   688. 
Halsey    v.    Lehigh    Val.    R.    Co.,    2109, 
2122,   2126,   2127. 


TABLE  OF  CASES. 


2191 


[EEFEEENCES 

Halstead   v.    Coen,    734. 

Ham   V.   Schuyler,   170. 

Haniaker  v.   Manheim   Light,   Heat   & 

Power  Co.,  1111. 
Hamblay  v.   Trott,   734. 
Hamby  v.   Wall,    1857,    1S79. 
Hamer  v.   McCall,   441. 
Hamerton   v.  Stead,   126.   3S0,    1325. 
Haniill   v.   Jalenick,   437. 
Hamilton   v.   Cutts,   1298,   1299. 

V.  Dennison,    2125. 

V.   Feary,    593. 

V.  Graybill,    818,    826,    1264,    1269, 
1767. 

V.   Kilpatrick,    1948. 

V.   Maas,    1933. 

V.   Pittock,    178. 

V  Reedy,    2019. 

V.   Stewart,    1624. 

V.   Taylor,    665,   670. 

V.  Windolf,    2036. 

V.   Wright,    519,    522. 
Hamilton    Building   &    Loan    Ass'n    v. 

Patton,    1730. 
Hamit  v.    Lawrence,   1419. 
Hamlett  v.   Tallman,   1940. 
Hamlin   v.    Sears,    286. 
Hamllne    v.    Engle,    1742. 
Hammers    v.   Hanrick,    453. 
Hammock   v.    Creekmore,    184. 
Hammon  v.  Douglas,   1483,    1485. 

V.  Jones,    1736. 
Hammond  v.  Barton,   49. 

V.  Blue,    455. 

V.  Dean,    178. 

V.   Eckhardt,    1474. 

V.  Harper,   1937. 

V.  Jones,    546,   547,   1504,   1736. 

V.   Mather,    1383. 

V.   Sexton,    840. 

V.   Thompson,      1036,      1038,      1044, 
1045,    1074,    1078,    1105. 
Hammons   v.   McClure,    483. 
Hampshire   v.    Wickens,    395,   396. 
Hanaw   v.    Bailey,    1655. 
Hanbury   v.    Cundy,    1055. 

V.   Litchfield,   394. 
Hanchett   v.    O'Reilly,    619. 

V.   Whitney,    132. 
Hancock  v.  Austin,   25,   26,   1020,    1996, 
2054,    2055. 

V.   Boggus,    2070. 

V.  Caffyn,    372,    377. 
Hand   v.   Blow,   1385. 

V.   Hall,    236,    1518. 

V.   Osgood,    236,    384,    1519. 

V.  Suravitz,   860,    1306. 


Ar.H  TO  rAflF.S.l 

Hnnd  v.  Williamsljurgh  City  Fire  Ins. 

Co.,    318,    1674. 
Hander    v.    Dennison,    1G62. 
Handforth    v.    Jackson,    1598,    1600. 
Handrahan    v.    O'Regan,    600,    824. 
Handschy   v.    Sutton,   343. 
Handyside    v.    Powers,    632,    660. 
Hanks  v.   Prico,    1009,   2136. 

V.  Workniaster,   1432. 
Hanley   v.    Banks,    519,    535,    624,    625. 

1844. 
ITanna   v.   Countryman,    1719. 
ITannen  v.   Ewalt,  970,  989,  1128,  1823, 
1835. 

V.  Pence,  694. 
Hanrahan  v.  O'Reilly,  1573,  1579,  1614, 

1616,  1676. 
Hanse  v.  Cowing,  681,  686. 
Hanselman  v.  Broad,  646. 
Hansen  v.  Meyer,  888,  893,  1703. 

V.  Prince,  1107,  1972. 
Hanson  v.   Cruse,  594. 

V.  Dennison,  39. 

V.   Stevenson,    982. 
Harbeck  v.    Sylvester,   1145. 
Harbin  v.   Barton,  405. 
Hard  v.  Brown,  2S9,  1982. 
Hardaker  v.  Idle  District  Council,  616. 
Harder  v.  Harder,  735. 

V.  Plass,  1965. 
Hardin  v.  Porsythe.  495,  501. 

v.  Pulley,  171,  306. 
Harding  v.  Austin,  1178. 

V.  Crethorn,  1140,   1469,  1493,  1494. 

V.  Gibhs,  lf;79,  16S1,  1690. 

v,  Hardrett,  4  39. 

v.   Seeley,   45,   1516,   1526,   1535. 
Hardison   v.   Hooker,    600. 
Hardison  Whiskey  Co.  v.  Lewis,   1338. 
Hardy  v.   Briggs,  1047. 

V.   Ketchum,   1736. 

V.  Poss,    2069,   2070. 

V.  Seyer,  69. 

v.  Winter,    293,    1155. 
Hare  v.  Purges,  1523,  1525,  1539. 

V.  Gator,  986. 

V.  Celey,  39,  187,  1651. 

V.  Groves,  12J2. 

V.  Proudfoot,   1065,  1831. 

V.    Stegall,    2040.    2081,    2083. 
Harebottle  v.   Peacock,   32. 
Harford  v.  Taylor,  859,  1311,  1374. 
Harger  v.   Edmonds,   1847. 

V.  Spofford,  2096. 
Hargrave  v.  King,  922,  926. 
Hargravc's  Case,   978. 
Hargroves,  Aronson   &  Co.  v.   Hartop, 
626,  702. 


2192 


TABLE  OF  CASES. 


[KBFBEENCBS  AEE  TO  PAGES.] 


Harker  v.  Gustin,  486. 
llarkin  v.  Crumbie,  636. 
Harkness  v.  Sears,  15S0. 
Harlan  v.  Emery,   1887. 
Harle  v.  McCoy,  307,  308. 
Harley  v.  King,  880,  993,  994. 

V.  McAuliff,  1811. 

V.  O'Donnell,  59. 
Harloe  v.  Lambie,  1037.  1774. 
Harlow  v.  Lake  Superior  Iron  Co.,  30, 

31,    32,    289,   709. 
Harman  v.  Ain.slie,  1367. 

V.   Gartman,  406. 
Harmann  v.  Powell,   809. 
Harmer  v.  Bean,  872,  1102. 
Harmon   v.   Flanagan,   1102. 

V.  Payton,  2091. 
Harmont  v.  Sullivan,  523,  1844. 
Harmony  Co.  v.  Rauch,  1242,  1271. 
Harmony    Lodge    v.    White,    961,    963, 

964,  1034,  1123. 
Harms    v.    McCormick,    287,    357,    4D6, 
340,  1122,  1829,  1830. 

V.  Solem,   2036,   2038,   20S1,  2083. 
Harnett  v.  Korscherak,  245. 

V.   Maitland,    728,    744,    747. 
Harpel  v.  Fall,  594,  650,  652. 
Harpelie  v.  Carroll,  2035. 
Harper  v.  Bird,  904,   1033. 

V.   Burgh.   904,    1033. 
Harrell  v.  Fagan.  1921. 

V.  Sonnabend,   388. 
Harrington  v.   Brown,   1805. 

V.  Douglas,  561. 

V.  Hall,  1273. 

V.  Watson,    1191,    1196,    1743. 

V.  Wise,  1025. 
Harrinson  v.  Jelley,  654,  665,  666. 
Harris  v.  Barber,  1785. 

V.  Boots  Cash  Chemists,  997. 

V.  Brown,  753. 

V.  Carson,  1636,  1638. 

V.  Clayton,  2073. 

V.  Cohen,  679,  696,  697,  790. 

V.   Corlies,  1205. 

V.  Damman,  1906,  1956. 

V.  Dub,  268,  1837. 

V.  Foster,  879,  1085,   1116,  1492. 
V.   Frank,     918,     986,     1129,     1821, 
1965-  1970. 

V.   Frink,   187,   306,   310,   1635,   1666. 
V.  Gillingham,    151S. 

V.  Goslin,  715,  776,  778,  900. 

V.  Greenberger,  1150. 

V.  Halverson,  64.  1447,  1736. 

V.  Hancock,  1318. 

V.  Heackman,  962,  1192,  1328. 

V,  Hickman,  774,  850. 


Harris  v.   Hiscock,    1348. 

V.  James,  678. 

V.   Jones,     754,    755,    779 

V.  Kelly,  1639. 

V.  Mantle,  709. 

V.    Oakley,   268. 

V.   Ohio  Oil   Co.,  1364. 

V.  Parker,  428. 

V.   Perry,   789. 

V.   Ryding,    272. 

V.  Shaw,  2064. 

V.   Wier,    2035. 
Harrison   v.    Barnby,   1831,    1832,   2043. 

V.  Barrow-in-Furness,  933. 

V.  Barry,   2039. 

V.  Blackburn,  290,  292. 

V.   Clifton.   1045. 

V.  Good,   806. 

V.   Guill,    1989. 

V.  Howe,  365. 

V.  Jordan,  83. 

V.  Malet,    571. 

V.    Mar.shall,    439,    501,    1723,    1746, 
1751. 

V.  Meyer,  1244. 

V.  Middleton,   172,  1734. 

V.  Muncaster,  524,  532,  537. 

V.  Parmer,    376,    378. 

V.  Pinkney,  78. 

V.  Ricks,  185,  186,  187. 

V.  Smith,  1585. 
Harrow  School  v.  Alderton,  7D6. 
narrower  v.   Heath,   1650. 
Harry  v.  Harry,  1502. 
Hart  V.  Bouton,  1726,  1738. 

V.  Cole,  667. 

V.  Cornwall,  847. 

V.  Finney,  1483. 

V.  Globe  Iron  Works,  1602, 

V.  Hart,  56,   839,  860,   1518,   1693. 

V.  Lindley,  145D. 

V.    Pratt,    1313,    1322,    1332,    1334, 
1336,  1804. 

V.  State,  1658,  1659. 

V.  "Windsor,  526,  556,  557,  558,  370, 
573,   1892. 

V.  Wynne,  1043. 
Hartford    Iron    Min.    Co.    v.    Cambria 

Min.  Co.,  33,  271. 
Hartford    Wheel    Club    v.    Travelers' 

Ins.   Co.,   1369,    1387,    1388. 
Hartford    &    N.    Y.    Steamboat    Co.    v. 

New  York,   365. 
Harthill  v.  Cooke's  Ex'r,  1239,  1543. 
Hartman   v.   McAlister,   1685. 

V.  Thompson,  988,   1126. 
Hartsell  v.  Myers,  361,  137,  113». 
Hartshorn  v.  Earley,  195. 


TABLE  OF  CASES. 


2193 


[KEFERENCBS  AUV.  TO  PAGES.] 

Hartshorn  v.    Hubbard,    324. 
Hartshorne  v.  Kierman,   2077. 

V.  Watson,  1174. 
Hartwell  v.  Camman,  33. 

V.   Kelly,    1600. 
Hartwig  v.  lies,  1922. 
Harty  v.  Harris.  1486. 
Hartz  V.  Eddy,  962. 
Harvey  v.  Barnard's  Inn,  379. 
V.   Brydg-es,    1506.    1508. 
V.  Clark,   1807. 
V.  Copeland.  1429. 
V.  Gunzberg,  1478. 
V.  Hampton,  1926,  1928,  1929,  1960, 

1963,  1964. 
V.   McGrew,    1301,    1133. 
V.  Oswald,  1387. 
V.  Pocock,    20S0,   2081,    2083. 
Harvie  v.  Wlckham,  2016,   2J22. 
Harvin   v.   Blackman,    448,    461,    181. 
Hasbrouck  v.   Stokes,   1738. 

V.   Winkler,   1042. 
Haseler   v.    Lemoyne,    2  388,    2(389. 
Ilaseltine  v.  Ausherman,  1053,  1957. 
Haskell  v.  Putnam,  463. 

V.  Sutton,  218. 
Haskins  v.  Georg-e  A.  Fuller  Co.,  831. 

V.  Haskins,  309. 
Haslage  v.  Krugh,  1120. 
Haslett  V.   Burt,   1609. 
Hassard  v.  Tomkins,   406. 
Hasterlik  v.  Olson,  1394. 
Hastings  v.  Crunckleton,  713. 

V.     Livermore,     2099,     2136,     2116, 

2118. 
V.  Lovejoy,  370,  1057,  1058. 
V.  North    Ea.stern  R.  Co.,   893. 
V.  Pratt,  320,  1729. 
V.  Wilson,  982. 
Hasty  V.   Wheeler,   708,   722. 
Hatch  V.  Bullock,  441,  465. 
V.  Hale,  2087. 
V.  Hart,   1630,  1666,   2031. 
V.     McCloud    River    Lumber    Co., 

959. 
V.  Stamper,  745,  1222,  1233,  1234. 
V.  Van  Dervoort,  973. 
I-Iatchell  v.  Chandler,  208€. 

v.  Kimbrough,  8,  38,  187. 
Hatchett  v.  Miller,  1923. 
TIately  v.  Myers,  1483,  1488. 
Un.t*ield   V.    Fullerton,    1150,    2'D29. 
Hathaway  v.  Ryan,    1858. 
Haiisauer     v.     Dahlman,     1529,     1552, 

1558. 
Hausman  v.  Mulheran,   1846,    1851. 
Havemeyer  v.   Switzer,   1840. 
Haven  v.  Adams,    1694. 


Haven   v.   Wakefield,   1238. 
Havens  v.  Middleton,    861. 

V.  West    Side    Elec    L.    Co.,    1578, 
1584. 
Hawes  v.   Favor,  750,   751,  800. 

V.   Shaw,   416,   484. 
Hawkes  v.  Orton,   543,   1268. 

V.  Young,  1880. 
Hawkins  v.   Beakes,   1965,  197«. 
V.  Collier,    444,    2069. 
v.   Giles,    1966. 
V.  .lames,    2078. 
v.   Kelly,    1073. 
v.   Mosher,   856. 
V.   Walrond,    20€5. 
Hawley  v.   Moody,    259,   262,   383. 

V.   Robeson,    1748. 
tiaworth    v.   Taylor,    283. 
Hawralty  v.  Warren,   1691. 
Hawthorne    v.     Coursen,     1273,     1346. 
1980. 
V.   Siegel,    14,    2129. 
Hay  V.   Connelly,   309. 
V.  Cumberland,    270. 
v.  Palmer,    1073. 
V.   Short,    598. 
v.  Tillyer,    1576. 
Haycock  v.  Johnston,  365,   13S9. 
Hayden  v.   Ahearn,  1737. 
V.   Bradley,    5S6. 

V.  Consolidated   Mining  &  Dredg- 
ing Co.,    2100,    2102. 
v.   Florence     Sewing     Mach,     Co., 

1816. 
V.  Lucas,    396. 
V.  Patterson,   878,  1117. 
Hayes  v.  Arrington,   231,   234. 
V.   Atlanta,   106,   242. 
V.  Bickerstaff,   535,  536. 
V.  Ferguson,    507,    860,    1163. 
V.  Goldman,   1339. 
V.  Lawver,    874. 
V.  New   York  Gold   Mln.  Co.,    887, 

8SS.   1573. 
V.  O'Brien,    1675,    1691. 
V.  Schultz,    1606. 
Hayford  v.   Wentworth,   1567,    1578. 
Hayner  v.   Smith,   319,   520,  1-258.   1260. 

1261,   1262. 
Haynes    v.    Aldrich,    1335.    1338.    1472. 
1475,    1478. 
V.  Sherwin-Williams    Co.,    1790. 
V.  Synnott,    1146. 
V.  Union    Inv.   Co.,    1701). 
Hays  V.   Berry,   1918,   1921,   1931. 
V.  Doane,    1570.   1S78. 
V.  Goldmaii,    1336,    1536. 


L.  and  Ten.  1S8. 


2194 


TABLE  OF  CASES. 


[KKFKUKNCKS  ATIR  TO   PAGES.] 


Hays  V.   IlafFon,   15  81. 

V.   Moody,   l^'J;!. 
Hay.s,    Foster   &  Ward  Co.,    In   re,    95, 

1189. 
llfiyvvard   v.   Fumer,   27. 

V.   Haswell,    376. 

V.   Parke,  391. 

V.   Ramge,     1250,    1200. 

V.   School   Di.strlc't,    1571,   1588. 

V.   Sedgeley,   2127. 
Haywood    v.    Miller,    334,    1726. 

V.  O'Brien,    1922. 

V.   Rogers,    7,    187. 
Hazard  v.   Uayrnond,  1248. 
Hazard   Powder  Co.    v.   Loomis,    46. 
llazelhurst    v.    Kendriok,    942. 
Huzeltine    v.    Aushorman.    1173,    1949, 
2091. 

V.   Colburn,    130,    1457,    1748,    1750, 
1765. 
Ilazen   v.    iloyt,   82. 
Hazlett  V.    Mangel,    2085. 

V.   Powell.    586,     1232,     1279.     1302. 
Hazlewood       v.       Peniiybacker,       755, 

1C98,    1704. 
Head  v.  Head,   1357. 

V.   Pryor,    ISCO. 
Headley   v.    Hov'iiengarncr,    518. 
Headrick  v.  Brattain,   1629. 
Heal  V.  Niagara  Oil  Co.,  193. 
Heald  v.  Builders'  Mut.  Fire  Ins.  Co., 

1630. 
Healy    v.    McMaiiiis,    1179. 

V.   Trant.    1361,    1576. 
Heap  V.    Barton,    1597. 

V.  Hartley,    21. 
Heard  v.   Lockctt.   949,   1001. 
Hearn   v.    Allen,    817. 
Hearne   v.   Lewis,    1074. 
Heavllon     v.      Farmers'     Bank,      104  4, 

1645,    1046,    1647. 
Hcbberd   v.   Mayo,    65.    240. 
Hebron  Church  v.   Adams.    1804,   1807. 
Hecht   V.   Dettnian,   1044,    1645,   1047. 

V.  Ferris.    1829. 

V.  Heerwagen,    1080. 
Hochtman    v.    Sharp,    1934. 
Ileckart   v.    McKee,    510. 
Hccklau   V.    Hauser,    1979. 
HeddericU  v.    .Smith.    1571,    1573,    15SC. 

1587.    1593,    1596. 
Hedekln  v.  Gillespie,  588.  594. 
Hedges    v.    Hiker,    206,    215. 
Hoermans   v.    Schmaltz,    452. 
HolYeltlnger   v.    Fulton.    333,    334. 
Ilofferman   v.   Taylor,    209. 
Hell'ner  v.  Lewis.    1581,   1584. 


HelT(;id    V.    Alger,    2036. 
Hefli'on    V.    Trebcr,    1515. 
Hoilin   V.    Bingham,    273. 
Helling   v.    Van    Zandt,    1109. 
Hegan   v.   Johnson,   372,    IDOO,   2073. 
Hegan    Mantel    Co.    v.    Cook's    Adni'r, 

1544,   1552,    1815. 
Hegeman    v.    McArthur,    1273,    1337. 
Heidelbach  v.   Slader,   1856,   1S70. 
Heidelbach      Seasongood      &     Co.      v 

Slader,  877.  1855. 
IJoidenreich    v.    Ra.ggio,    302. 
Heilbron   v.   Heinlen,   290. 

V.   Last   Chance  Water  Ditch   Co., 
2110,    2114. 
Helms    Brew.    Co.    v.    Flannery,    205, 

1176. 
Heine    v.    Treadwell,    1684. 
Heineck    v.    Grosse,    302. 
Helnrlch  v.   Mack,    1758. 
Heintze   v.    Bentley,    575. 
Hciple   V.    Reed,    1366. 

V.   Rein  hart,    1366,    1776. 
Hoise   V.    Pennsylvania    R.    Co.,    797. 
Heishey   v.   Metzgar,   1646. 
Heissler  v.    Stone,    1062. 
Helbig    V.    Slaughter,    703. 
Helburn  v.   Molford,   1197. 
Helena  v.   Turner,    204. 
Helier    v.   Casebort,    1132. 
Hellams  v.   Ration,   241,   1893. 
Hellawell   v.   Eastwood,    2017. 
Ilellier  v.  Casbard,  352,  1032,  1132. 

V.   Sillcox,    1880. 
Helmes   v.   Stewart,    492. 
Helser  v.    Pott,    1988,    2046. 
Helwig  V.  Jordan,   677,    680. 
Ilembrock   v.   Stark,    1108,    1845. 
Kemenway,  Ex   parte,    1592. 
Mcmming    v.    Brabason,    1615. 
Hemphill    v.   Flynn,    1478. 

V.   Giles,     139. 

V.  Tevis,    417,    878. 
Hempstead    R.    30.,    B.    &    B.    Ass'n    v. 

Cochran,    1907. 
Henchclt    v.    Klmpson,   1250,   1254. 
Henck    V.    Barnes,    891. 
Henderson    v.    Arthur,    304.    306. 

V.  Carbondale    Coal    &    Coke    Co., 
1763,   1765. 

V.   Detroit,    ISbO. 

V.  Henderson,    511. 

V.   Mears,    1260. 

V.   Own  by,    1506. 

V.   Sfhuylkill     Valley     Clay    Mfg. 
Co.,    289.    372.    1528. 

V.   Squire,   1469.    1493,   1195. 


TABLE  OP  CASES. 


2195 


Henderson  v.  State,   1924. 
V.   Thorn,   768,   7S3. 
V.   Treadway,    162S. 
V.  Virden    Coal    Co.,    348. 
Hendrick  v.    Cannon,    1500.    1746. 
Hendricks  v.  Clcmmons,  188. 
Hendrickson  v.  Beeson,  874,  875,  1102, 

1737,    1758. 
Hendrix    v.     Dickson,    854,     872,     8SS, 

901.  1000. 
Ifendrlxson   v.  Cardwell,    1634. 
Hendry  v.   Squler,    84,   87,   588,   597. 
Henkel   v.   Murr,   667. 
Henkels  v.   Brown,   2064. 
Henkle    v.   Dillon,    1601. 
Henley    v.    Branch     Bank,     464,     490, 
516. 
V.  Brocknian,   579,   2045. 
Honn   V.   Hanyon,    1011. 
Hennen   v.    Kwalt,    1127. 
Hennessey  v.   Peder.son.   1801. 
Hennessy    v.    Hoag,    1888. 

V.   Kenney,  1552. 
Henniker  v.  Turner,   1S32. 
Henning   v.    SavaK«.    1158,    1238. 

V.   Warner,    448,    502. 
Henry  v.   Davis,   1949. 
V.  Fine,    200. 
V.  Perry,    28,    309,    1726. 
Henshaw,    In    re,    1704. 
Henshaw     v.     Wells,     412,     413,     877 

1085,   1116. 
Henson    v.   Beckwlth,    650. 

V.   Cope,    366. 
Henstead's    Case,    115,    405. 
Henwood    v.    Cheeseman,    1821,    1823, 

1855,    1887. 
Herbage   Rents,   In   re,   1111,    1819. 
Herbaugh    v.    Zentmyer,    1128. 
Herberg  v.  May,  1290. 
Herbert  v.  Dupaty,  890. 
Herbst  v.  Hafner,   608,   623. 
Hereford   v.   Pusch,    1582. 
Heritage  v.   Wilfong,    1779,   1782. 
Herlakenden's   Case,   711.    737,   2124. 
Herman   v.   Laemmlc,    1348. 

V.   Winter,    1682. 
Hermann    v.    Curiel,    1890,    1893. 
Hermitage  v.   Tomkins,    424. 
Herndon  v.  Bascom,   1732,    1733. 
Herpolshelmer     v.     Christopher,     544, 
546,    548,    549. 
V.   Funke,    519,    522,    528,   531,    830 
836.    1266,    1279. 
Herr  v.  Johnson,   1013,   1987. 
Herrell     v.     Sizeland,     29,     105,     1358 
1421. 


[REFEHENCES  .\11E  TO  PAGES.] 

Horrin    v.    Ubbey,    299. 

Hcii-iiig  V.  Dean  of  St.   Paul's,  73*. 

Herrmann   v.   Heydem.-in,   235. 

Herron    v.   Gill,    1247,    1898,    2019. 

Herscher  v.  Brazier.   289. 

Hersey  v.  Chapin,   114,  798,   2099. 

Hershberger    v.    Johnson,    1600,    1601. 

Hoisliey  v.  Clark,   439. 

HiTskeil    V.    Bushnell,     39,     187.    1049, 

1651. 
Hcrter    v.     Mullen,     1472,     1476,     1477, 

1492.    1513. 
Hertzberg    v.    Breisenbach,    544,    546. 

547. 
Horlzberger     v.      Wltte.     1597,     1605, 

1014. 
llerzig  V.   Blumenkrohn,  910,    911. 
Hess    V.    Hinkson,    632,    666. 
V.   Martin,    236,    1518. 
V.   Newcomer,    759,    778,    779. 
V.   Roberts,    28. 
Hessel    v.     Johnson,     99,     1133,     1351, 

1352,    1992,    2006. 
Hesseltine   v.  Soavey,   1337,  1339. 
Hessler  v.   Schafer,    14. 
Hetlield  v.   Lawton,    124,   1436,    1630. 
Hett   V.    Zanzen,    1489. 
Hetzel   V.  Barber,    496. 
Heuser  v.    Antonius,   1795. 
Hewitt    V.     General    Elec.    Co.,    1567, 
1623. 
V.  Hornbuckle,    757,    1170,    1332. 
V.   Stearn    Engine    Co.,    1573. 
Hext   V.    Gill,   730. 

Hexter  v.    Knox,    587,    591.   606,   1237. 
Hey    V.   Bruner,   1573,    1610. 

V.   McGrath,    126,   128,    129,   133. 
V.   Moorhouse,     1512. 
V.  Wyche,    861,   863. 
Heyden  v.  Castle,  462. 
Heydon   v.    Smith's  Case,    10,   11,    2128. 
Heyen  v.  Ward,    464. 
Beyer  v.    Beatty,   439,    1779. 
Heyward     v.     Willmarth,      267,     1675. 

1676. 
Heywood   v.    Berkeley   Land   &  Town 
Imp.  Ass'n,  803. 
V.   Fulmer,   163. 
V.  Heywood,   1089. 
Hibbard  v.   Hurlburt,    268. 
V.  Newman,    1483. 
V.  Ramsdell,    1559. 
Ilickey  v.  Conley,   1700,    1793. 

V.   Lake    Shore    &    M-    S.    R.    Co., 
348. 
Hickman    v.    Isaacs,    802. 
V.  Machln,   320,    416. 


2196 


TABLE  OF  CASES. 


[REFKEBNCES  AEB  TO  PAGES.] 


Hickman   v.    Rayl,      605.      1151,      llo4, 

1198,    1238. 
Hickox   V.    Seegner,    79. 
Hicks  V.  Doty,  1830. 

V.   Downing,   738,    742,   1830. 

V.  Harvey,  52. 
Hidden    v.    Jordan,    1864. 
Hiester  v.   Shaeffer,    1173. 
Higbie  Co.   v.  Weeghman  Co.,   1263. 
Higgenbothem    v.    Lowenbein,    1808. 
Higginbotham  v.   Higglnbotham,   332, 

334. 
Higgins    V.    California    Petroleum    & 
Asphalt   Co.,    92,    1047,    1067, 
1166. 

V.  Farnsworth,   2117. 

V.   Gager,-  231,  232,  235,  349,  800. 

V.  Halligan,   50,   63. 

V.   Ridden.  1621. 

V.  Street,   1171,   133S. 

V.   Turner,    88,    91,     460,     463,    496, 
1779,   1782. 
Higgon  V.  Mortimer,  2116. 
Hightower     v.      Fitzpatrick's     Heirs, 
1719. 

V.   Henry,    364,    365. 
Hihn  V.  Mangenburg,  1419. 
Hilbourn  v.  Fogg,  116,  449,  512. 
Hildreth  v.   Conant,   115,   1432,   1737. 
Hilke  V.  Eisenbeis,  2038. 
Hill  V.  Allen,  1686,   2136. 

V.  Barclay,    395,    76S,    1409,    1539. 

V.   Beatty,   1542. 

V.   Burgess,   737. 

V.  Coal   Valley   Min.    Co.,    20,    167, 
1860. 

V.  Coats,  2040,   2070. 

V.   De    Rochemont,    787,    789. 

V.  Dobie,   981. 

V.  George,   1921. 

V.   Gilmer,  1903. 

V.  Goolsby,    171. 

V.   Grange,     817,     898,    1039,     1097, 
1378. 

V.  Hill.    308. 

V.  Kempshall,    1377. 

V.   Reno,    92. 

V.  Rudd,  296,  933. 

V.  Saunders,    509. 

T.   Schultz,  819. 

V.  Sewald,    1563,    1565,    1572,    1586, 
1620. 

V.  Sadie,   316. 

▼.  Stocking,  1740,  1787,  1789,  1796, 
20?9. 

V.  Tupper,   21, 

T.  Wand,   426. 


Hill   V.    Watkins,    464. 

V.   Wentv.-orth,    1562,    1563. 

V.  West,  817. 

V.  Williams.   442,   1173,    1836. 

V.  Wilson,    1201. 

V.  Winn,  452. 

V.  Woodman,  275,   1198. 
Hillary  v.  Gay,    1507. 
Hllley  V.    Perrin,    1081. 
Hillhouse  V.  Jennings,   254. 
Hilliard   v.    Gas   Coal    Co.,    1222,    1232, 
1302. 

V.   Genmell.   1490. 
Hilman  v.  Brigham,   1921,  1951. 

V.  Hore,    424. 
Hilsenbeck  v.  Guhring,   635,   667,   670. 
Hilsendegen     v.     Scheich,     120,     1035, 

1040. 
Hilson  V.  Blain,  1095,  2030,  2031,  2073, 

20S7. 
Hilton  V.  Goodhind,   1061. 
Himely  v.  Wyatt,  2008,   2009. 
Himesworth  v.   Edwards,   232. 
Hinchman  v.   lies,   115. 
Hinckley  v.    Beckwith,   585.   590. 

V.  Casey,  1S03. 

V.   Guyon,   372,  377,   1779. 
Hinde  v.  Gray,  889. 
Hindle  v.   Pollitt,  788. 
Hindman   v.    Edgar,   370,   1673. 
Hines  v.   Combs.   207. 

V.   Wilcox,   367,    560,   567. 
Hingham  v.    Sprague,   2115. 
Hinricks  v.   New  Orleans,   1188. 
Hinsdale  v.  Humphrey,   347.  348,   1822, 
1824. 

V.  McCune,  295,  298,  369,  561. 

V.  White,    1174.  1809,   1812. 
Hintze  v.   Krabbenschmidt.  235. 

V.  Thomas,   987.    994,    1823. 
Hipsley  v.  Price,    1921,  1956. 
Hirch  V.  Olmesdahl,   1842. 
Hirsch   v.   Livingston,   419. 
Hirschfield  v.   Alsberg,    790,   796. 

V.   Franks,   1273. 
Hirst  V.  Horn,  1448,  1498. 
Hirtenstein  v.   Farrell,    643. 
Hisey  v.  Troutman,   1627. 
Hislop  V.  Moldenhauer,   1717,   1760. 
Hitchcock  V.  Bacon,  1304. 

V.  Hassett.   1898.   1966. 

V.   McKinster,   1790. 

V.  Page,    1685. 
Hitchings  v.   Thompson,  473. 
Hite  V.   Parks,   1708,   1712. 
Hitner  v.  Ege,   575,  745. 
Hitt  V.  Greiser,  1490. 


TABLE  OF  CASES. 


2197 


[KEFEEENCES  AIIE  TO  PAGES.] 


Hoag  V.  Hoag,  494. 

V.  Willlamsbursh  Sav.  Bank,   036. 
Hoagland    v.    Crura,    399.    1072,    1122. 
1493,   1872. 
V.  New  York  C.    &   St.    L.    R.   Co., 
519. 
Hoar  V.  Mill,  1812. 
Hobbs  V.    Batory,    366,   1137. 
V.  Davis.  1898. 

V.  Ontario  Loan  &  Trust  Co.,  324. 
V.   Smith,    931. 
Hobson    V.    Gorring^e,    1620. 

V.  Tulloch.  803. 
Hoby    V.    Roebuck,     233,     1023,     1059, 

1997. 
Hochenauer  v.  Hilderbrant,  507,   1163. 
Hocking    County     v.     Spencer,     1822, 

1824. 
Hodge  V.  Giese,  282,  408. 
Hodges  V.  Fries,  547,  548,  549. 
V.  Gates,  315. 
V.  Howard,   286,   386, 
V.  Lawrance,    2025. 
V.   Shields,   461. 
V.  Waters,    178. 
Hodgkin   v.  McVeigh,    488. 
Hodgkins  v.  Farrington,   22. 

V.  Price.   71,  844,   1025,  1454,   1765. 
V.   RobPon,  1064,   1068. 
Hodgkinson   v.    Crowe,   396. 
Hodgson  V.   Dexter,   759. 

V.  Gascoigne.   1408,  1641. 
Hodklns  v.   Robson,    1290. 
Hodsden  v.   Harridge,   1849. 
Hodson  V.  Heuland,   388. 
Hoerdt  v.  Hahne,  1343. 
Hoeveler  v.  Fleming,  1199,  1269,  1285, 

1287,  1288. 
Hoff    V.    Royal    Metal    Furniture    Co., 

1523. 
Hoffeditz  v.  South  Penn.  R.  &  M.  Co., 

2130. 
Hofferberth  v.   Myers,   692. 
Hoffman  v.  Clark,  109,  439. 
V.  Delihanty,  1883. 
V.  Hoffman,    452,   453. 
V.  McCollum,    1486. 
V.  Van   Allen,    134,    1430. 
Hogarth    v.    Jennings,    2085. 
Hogg  V.  Brooks,  1440,  1459. 

V.  Reynolds,    908,    917,    1127. 
Hogsett    V.    Ellis,    306.    310,    410,    416, 
1117,    1450,     1492,     1194.     1855,     1856, 
1857,  1867,  1884,   1SS6. 
Hohly     V.     German     Reformed     Soc, 
1744. 


Holbrook    v.    Chamberlin,    780,    15G9, 
1570,   1572,   1573,   1607.   1611. 
V.  Young,     117,     533,      534,      IZ'Jl. 
1298,   1844. 
Holcomb  V.    R:iwlyns,   1121. 
Holcombe    v.   liewson,    809. 
Holdcnian  v.  Smith,  1627,  1654. 
Holden  v.   Boring,   401,  402. 

V.  Cox,     1926,      1928,      1931.     1961. 
1902. 
Holden  Bldg.  &  Loan  Ass'n  v.  Wann, 

177. 
Holder  v.  Chambury,   1826,  1828. 
V.   Taylor,   526,   540,  541,  545. 
Holford  V.   Dunnett,  728,   729. 
V.   Hatch,  980,  1001,  1133. 
V.  Pritchard,    1856. 
Holgate  V.   Kay.    1147,    1148.    1152. 
Holladay  v.  Bartholomae,   2014. 

V.  Chicago    Arc    Light    &    Power 

Co.,  24.  25,  27. 
V.   Rutledgc.    1911. 
Holland   v.    Bird,   2029,    2030,   2079. 
V.  Cole.  931,   1374,   1375. 
V.  Hodgson,  1562,  1564,  1565,1582, 

2017. 
V.  Falser,   1041. 
V.   San  Antonio.  126. 
V.  Townsend,    2059,    2066. 
V.  Vanstone,    1149. 
Hollander  v.  Central  Metal  &   Supply 

Co.,  1676,   1689. 
Holley    V.    Young,    07,    108,    373,    376, 

1516.   1522,   1526.    1527.   1535. 
HoUiday  v.   Aelhle,   948. 
V.  Chism,    1735. 
V.  Marshall,   870,    956,   1707. 
V.   Nolan,  962. 
Hollingsworth  v.  Hill.  1937. 
V.  Snyder,    1461. 
V.  Willis.   2047. 
Hollis   V.  Burns.   133.   134,   1429,   1432. 
V.  Carre,    1032. 
V.   Edwards.    1693. 
V.  Pool,   251,  1425,   1746. 
Holloway  v.  Galliac,   474. 
V.   Hill,  822,  824.  830. 
Holly  V.   Brown,   1267. 

V.   Young,    1515. 
Hollywood  V.  First  Parish  in  Brock- 
ton,   917,   918.   1702. 
Holman  v.  Banner.   16.   17. 

V.  De  Lin-River-Finley.  996,  1345, 

1369.    1402,   1876. 
V.  Hore,    425. 
Holme  V.    Brunskill,   1142,    1327,    1448, 
1462. 


2198 


TABLE  OF  CASES. 


[REFEEENCES  ARE  TO  PAGES.] 


Holmeaa  v.  Macldox,  302. 
Holmes   v.    Davis,   9. 

V.  Day,    128. 

V.   Guion,   1157. 

V.   Holifield,    1661,    1973,    1975. 

V.  McMaster,  418. 

V.   Seeley,   216,   2115. 

V.   Shepard,  1052. 

V.   Standard   Pub.   Co.,    1567,    1569, 
1576,    1600. 

V.   Stockton,    1890,    1892. 

V.   Tremper,  1573,  1574,  1580,  1581, 
1588. 

V.   Turner's   Falls,   492. 

V.   Williams,     1879. 

V.   Wood,  120,    128,   1227. 
Holmquist  v.  Bavarian   Star  Brewing 

Co.,    92,    1056. 
Holridge   v.   Gillespie,    1558. 
Holsman   v.   Abrams,   1709,    1710. 
Holt  V.  Colyer,  807,  1933,   1953. 

V.  Holt,   1556. 

V.  Licette,  1045,  1660,  2070. 

V.  Marti-n,  238,  470,  1504. 

V.   Miller,    1094,    2039. 

V.   Nixon,    1035,    1743. 

V.   Rees,   100,    420. 
Holt   Mfg.    Co.   v.    Thornton,    1667. 
Holthausen   v.  Kells,   1143,   1144,   1851. 
Holton  V.  Noble,    300. 

v.   Waller,   559. 
Holtzapffel    v.    Baker,    1191,    1202. 
Holzderber  v.  Forrestal,  236. 
Holzhaucr    v.    Sheeny,    562,    565,    570, 

652. 
Homan    v.    INIoore,    451,    2076. 
iiome   Life   Ins.   Co.    v.   Sherman,    505, 

1163,   1165,    1281,   1297,    1298. 
Homes  v.  Bingley,   2134. 
Honore  v.  Murray,  1063. 
Honywood   v.    Honvwood,   711,   712. 
Hood   v.    Drysdale,   1478. 

V.   Fahne.stock,    S66. 

v.  Hartshorn,   1705,   1707,   1711. 
Hooks  V.   Frost,   84,    1311. 
Hooper  v.   Clark,   893,    894. 

V.   Farnsworth,   269,   271, 

v.   Woolmer,    856. 
Hoopes  V.  Brier,  1904. 

V.   Meyer,    1055,    1296. 
Hoops   V.    Fitzgerald,    301. 
Hooten  v.  Holt,   116,  116,   1009,   1433. 
Hoover,   In   re,   1248,    1900. 
Hoover  v.   Chambers,    193. 

v.  Pacific  Oil  Co.,   133. 

V.  United    States.    1236. 
Hopcraft  v.  Keys,  503,  509,  2029. 


Hope    V.   Gloucester,   1524. 

V.  White,  1993. 
Hope's  Appeal,  33. 
Hopewell  Llllls  v.  Taunton  Sav.  Bank, 

1563,   1565. 
Hopkins    v.    Oilman,    1544,    1546,    1698, 
1706,    1708,    1709,    1710,    1711. 

V.   Helmore,    1037,   1040. 

V.   Holland,    169,    1743. 

V.  McClelland,   1764. 

V.   Pedrick,    193G. 

V.  Ratliff,  308,   314,  575,   604,  1693, 
18G7. 

V.   Whaley,   1875. 

V.   V^^ood,    1957,    2040. 
Hopkinson  v.  Lovering,   9S8,  989. 
Hopper  V.    Haines,   1662. 

V.   Hays,    1£G2. 
Hopwood   V.    Barefoot,    846. 

V.  Whaley,    979. 
Horan    v.    Thomas,    1758,    1774. 
Horn  V.  Baker,   15G2. 

V.  Indianapolis    Nat.    Bank,    1568. 

V.   L,ewin,  1095,   2045. 

V.  Peteler,   17 ns. 
Hornbrooks  v.  Lucos,  1081,   1082,  2033. 
Hornby    v.   Cardwell,    771,    1386. 
Home   V.   Powell,    2075. 

v.  Smith,  1564. 
Horner  v.    Chai.sty,   977. 

V.   Leeds,   .".S,    1221. 
Horsefall   v.   Mather,    728,   729,    746. 

v.   Testar,   767. 
Horseley  v.   Moss,  1651,  1661. 
Horsej'  v.  Horsey,   309. 
Horsey    Estate    v.    Steiger,     923,    924, 

936. 
Horsford  v.    Webster,    2031. 
Horton   v.    Horton,    923. 

V.   Miller,   1842. 

v.  N.    Y.    Cent.    R.    Co..    1365,   1369, 
1370,    1410,    1412. 
Horwitz  V.  Davis,   CS2,  fi83. 
Hosford    V.    Ballard,    1371,    1382,    1405. 
Hosher   V.   Hesterman,    270. 
Hoske  V.   Gentzlinger,    1430,   1510. 
Hosking  v.   Phillips,    2098,   2101,    2119. 
Hoskins,  In  re,  1043. 
Hoskins  v.  Helm,  500,  1747. 

V.   Houston.    1247,   2034. 

V.   Knight,   1248. 

v.   Paul,     1987,     2008,     2016,     2021, 
2022. 

V.   Rhodes,    187. 
Hosli  V.   Yokel,   1627. 
Hotaling  v.  Hotaling,   308. 
Hotchkys,  In  re,  749. 


TABLE  OF  CASES. 


:i99 


[REFEUENCES  ARE  TO  PAGKS.] 


Hottenstein   v.    Lerch,    866. 
Houck    V.    Williams;.    439,    470. 
Hough  V.   Birse,    1865. 

V.   Brown,   12,   1273,  1333,   1367. 
Houghton,    Ex    parte,    981,    982,    1175, 

1189,  1190. 
Houghton   V.    Bauer,   1918. 

V.   Koenig,   351. 

V.  Moore,    270. 
Hougland   v.    Dent,    1089. 
House  V.  Burr.   962,   1515. 

V.  Jackson,   268. 

V.   Mefcalf,    G75,    677,    684. 
Houston   V.   l^'arris,   464. 

V.   Smythe,    1113. 
Houston   Ice   &   Brew.   Co.   v.  Keenan, 

1231. 
Houts  V.   Showalter,   1643. 
Hove  V.   Stanhope   State  Bank,    1922. 
Hovey   v.    Blanchard,    1718. 

V.  Hobson,    200. 

V.   Smith,    2034. 

V.  Walken,    1084. 
Hovnanian    v.    Bede.ssern,    812. 
How  V.   Greek,   346. 

V.   Kennett,    1874. 
Howard   v.    Carpenter,    155,    279,    1403, 
1433. 

V.  Deens,   1943,  1948. 

V.   Dill   &  Co.,  2048. 

V.   Doolittle,    534,    576,     582,     1302. 

V.    Ellis,  812. 

V.  Fanshawe,  1412,   1413. 

V.  Fessenden,    1598,    1600. 
■  V.   Heinerschit,    978,    980,    1132. 

V.  Jones,   1780. 

V.  Lincoln,  273. 

V.   Lovegrove,    997. 

V.  Merriam,     105,    306,     310,    1422, 
1424,    1726. 

V.  Murphy,    441,    443. 

V.   Patrick,   734. 

V.   Rain.suy,    1823,    2005. 

V.   Ransom,    1856. 

V.   Shaw,    1867,    1868. 

V.  Terry,  179. 

V.   Thomas,    364,    365,    583. 

V.   Tornicich,    1521. 

V.  Valentine,   1794. 

V.   Wemsley,   1427. 
Howard  County  v.  Kyte,  654,  1662. 
Howcott  V.  Collins,   1062. 
Howdyshell   v.    Gary,   2014. 
Howe  V.  Frith,   1404. 

V.   Gregory,    468. 

V.   Larkin,  1521. 

V.   Russell,    1858. 


Howe  V.  Scarrot,   212. 

Howe    Sewing   iMaohlne    Co.   v.    Sloan, 

2007,   2008. 
Howe's    Cave    Ass'n    v.    Houck,    15D6, 

1607,    1694,    1705. 
Howell,  In  re,  1076. 
Howell   V.    Behler,   1531.    1550. 

v.  Foster,    1965,   197.*.,    1976. 

V.   Howell,  112,   115. 

V.   Lewis,    1172. 

V.  Listowell  r.Ink  &  Park  Co., 
1095,  2017.  2031,  2066,  2085, 
20S7. 

V.  McCoy,    820. 

V.  Pugh,    1661. 

V.   Schenck,    1635,    16;!8,    1645. 

V.   Schneider,    559,    566,    568,    599. 

V.  Webb.    1081. 
Hower  v.  Krider,   1798. 
Howeth  v.  Anderson,   776. 
Howland   v.    Coffin,    881,   884,   885,    968, 
10S2,    1100,    1126,    1820. 

V.    Fnrluw,     1047,    1627,    1898. 

V.    Wh.te,    1114,    176;;. 
Howralty  v.    Warren,    1675. 
Howse    V.    M'ebster,    1132. 
Hoy   V.    Gronoble,    550. 

V.   Holt,   752,    762. 
Hoyle    V.    Bush.   267. 

V.  Plattsburgh  &  M.   R.  Co.,  1562. 
Hoylenian   v.    Kanawah,    748. 
Hoysradt,  In  re.   209. 
Hoyt  V.   Dengler.   299. 
Hubbard  v.  Cook,   394. 

V.   Gurney,   1137. 

V.   Knous,   1120. 

V.  McCormick,   1093. 

V.  Moss,   1949. 

V.   Quisenberry,   2091. 

V.   Shaw,    715. 

V.   Shepard,  466. 
Hubbell    Trust,    In    re,    132,    206,    207, 

209. 
Hubble  V.  Cole,  529,  708,  719,   730,  786 
Hubenka  v.   Vach,   1951. 
Huber  V.  Baum,    1233,    1235. 

V.   Ryan.  601,  648,  1223,  1240,  1272, 
1273. 
Hubner    v.    Feige,    1404. 
Huckaby   v.   Brooks,    2075. 
Hudd   v.   Ravenor,  2061. 
Huddell,  In  re.   888. 
Hudgins    v.    Bowes,    1525. 
Hudson   V.  Cripps,   532.  823,  831, 

V.   Porter,    1637. 

V.   Stewart,    94s.    1134. 

V.   Vaughan's    Ex'rs,    1960,    1962, 


2200 


TABLE  OF  CASES. 


Hudson  V.  Wliite,  170. 

V.    Willia-ia.-,     7  .1. 
Hudson      Bros.      Commission     Co.     v. 

Glencoe  Sand  &  Gravel  Co.,  88. 
Hudson     County     Board     of     Chosen 

Freeholders  v.  Emmerich,  1189. 
Huebschman  v.  McHenry,   1566. 
Huei-stel   v.   Lorillard,   869,    1383. 
HufE  V.  Latimer,  1119. 
■     V.  Markham,  1814. 

V.   Watkins,    185,    1649,    1652. 
Huffard  v.  Akers,  2016. 
Huffman  v.  McDaniel,  53. 

V.   Starks,   238. 
Ilufnagel,    In    re,    981. 
Hug  V.   Van  Curkleo,   1708. 
Hugall  V.  McLean,   586. 
Huger  V.   Dibble,    1535. 
Huggall  V.  McKean,  755. 
Huggins  V.   Bridges,  336. 
Hughes  V.   Brooke,   1883, 

V.  Chatham,  332. 

V.  Clark,  351. 

V.  Edifito     Cypress     Shingle     Co., 
1570. 

V.   Ford,    1692. 

V.  Hood,  538,  544,  546,  548,  549. 

V.  Hughes,  2044. 

V.  Kershow,    1604. 

V.  Lindsey,    1318. 

V.  Mason,    1718,    1727,    1728. 

V.  Metropolitan   R.    Co.,    1411. 

V.  Robotham,    1312. 

V.  Vanstone,    584,    746. 

V.  Watt,   471,  473. 

V.  Windpfennig,    1520,    1529,   1541. 

V.  Wood.    546. 
Hughes'  Case,   69. 
Hughs  V.  Ring,   2076. 
Hughs'  Adm'r  v.  Sebre,   2034. 
Hugill   V.    Reed,    2077,    2078,    2086. 
Huiest  V.  Marx,  1291. 
Hukill  V.  Myers,   13S8,   1397. 
Hulett  V.   Nugent,  1490. 

V.  Stockwell,    1949. 
Hull  V.  Noble,  866. 

V.  Sherrod,   679,   700. 

V.  Stevenson,   1074. 

V.  Stogdell.  1045. 

V.  Vaughan.    1862,    1867,    1877. 
Hulme  V.  Brown,  1844. 
Hulseman   v.    Griffiths,   1298. 
Hultain   v.  Murigle,   1449,   1454. 
Hultz   V.  Wright,    370. 
Humble  v.  Glover,  S81,  1101,  1821. 

V.  Langston,    994. 
Hume  V.  Hendrickson,   360. 


[OEFERENCES  ABE  TO  PAGES.] 

Hume  V.  Kent.  1396. 

V.   Peploe.    KiO-i. 

V.   Riggs,   1967,  1988,   1973,   1975. 
Humes  V.   Gardner,  1230. 
Humiston,  Keeling  Sc  Co.  v.  Wheeler, 
269,  1191,  IVjI,  1263,  12'i4,  1273,  1286, 
1338. 
Humphreston's   Case,    196. 
Humphrey  v.  Conybearc,  385. 

V.   Wait,   629,  634. 
Humphrey  Hai'dware   Co.    v.   Herrick, 

245,    261. 
Humphreys  v.  Franks,  68,  1451. 

V.  Green,  389. 
Humphries    v.    Humphries,    104,    105, 

1421,   1426,   1632. 
Hundley  v.  Moore,  948. 
Hungerford   v.  Clay,   100,  420. 

V.  Wagoner,    133,    134,    1430,    1453. 
Hunne^veil  v.  Bangs,  70,  1290. 
Hunnicutt  v.   Chambers,   2070,   2075. 
Hunstock   V.   Palmer,    302. 
Hunt  V.  Allgood.  1357. 

V.   Bailey,   1490. 

V.   Bay   State   Iron  Co.,   1619. 

V.   Bishop,    773,    1385. 

V.   Browne.  70!*. 

V.   Campbell,    2661. 

V.   Cha--bliss,   1137. 

V.   Coe,    2.',7,    259,    955. 

V.  Coinstock,    59,    318,    1009,    1729. 

V.   Cope,    1261. 

V.  Danforth,    888,    1702. 

V.  Gardner,    1329,   1344,    1388. 

V.  Hazelton,    275. 

V.  Luck,    865. 

V.  Matthews,    188. 

V.  Morton,  1427. 

V.  Potter,    1598. 

V.  Rabicoay,  200. 

V.  Rublee,    1C31,    1666. 

V.   Scott,  789,   1631. 

V.   Thompson,      1088,      1107,      1109, 
1127,   1830. 
Hunter  v.  Adoue,  358. 

V.   Bryan,    44. 

V.   Frost,   120,   1428,    1445,    1450. 

V.  Hathaway,   365,  606. 

V.  Hopetoun,    1533. 

V.  Hunt,   1004. 

V.  Jones,    1041. 

V.   K.-rcher.    1443,    1465. 

V.   LeConte,    1094,    2029,    2030. 

V.   Maaiium,    320,    1718,    1724,   1729. 

V.   Matthev/s,    1932. 

V.   Miller,   785. 

V.   Porter,   560,   .1755,    1707. 


TABLE  OF  CASES. 


2201 


[REFERENCES  ARE  TO  PAGES.] 


Hunter  v.   Reiley,    1158,    1843. 

V.   Silvers,    1517,    1522. 

V.   Whitfield,    1925,    1951. 
Hunting-  v.  Hartford  St.   R.  Co.,   221. 
Huntington    v.    Parkhurst,     120,     126, 
245,      250,      381,      1172,      1333, 
1423,    1431. 

V.  Walker,  1118. 
Huntington     Easy     Payment     Co.     v. 

Parsons,  550. 
Huntley's    Case,    1831. 
Hunton  v.  Powers,  1886. 
Hurd  V.   Gushing,   107. 

V.   Darling,   1654,    1064. 

V.  Davis,    2008. 

V.  Fletcher,  524. 

V.  Miller,   1858. 

V.  Whitsett,  138. 
Hurlburt  v.   Post,   1152. 
Hurley  v.    Lamoreaux,    1859. 

V.   Sehring,    1341. 

V.  Woodsides,    372. 
Hurliman  v    Seckendorff,  1243. 
Hurst  V.    Benson,    1842. 
llurtt  V.  Woodland,   1627. 
Huset  V.   J.   I.  Case  Threshing  Mach. 

Co.,  564,   633. 
Huskinson  v.   Lawrence,   2080,   2085. 
Hussey    v.    Peebles,    1928,    1951,    1960, 
1963. 

V.   Ryan.   796. 
Hutcheson  v.   Hodnett,   206,    207. 

V.   Jones.    1329. 
Hutchins  V.   Chambers,    2035,    2083. 

V.  Commercial   Bank,   1132. 

V.   Dresser,  216. 

V.   Martin,   1323. 

V.  Masterson,    1565. 

V.   Scott,  1037. 
Hutchinson   v.    Boulton,    1094. 

V.   Bramhall.  46,  282,  86G,  957,  958, 
959. 

V.   Cummings,  586,   G63. 

V.   Dearing,   412. 

V.   Potter,  1751. 
Hutsell    V.    Deposit    Bank    of    Paris, 

1992,  2050. 
Hutton   V.  Moore,   1187. 

V.  Warren,   784. 
Hyatt  V.   Griffiths,   1490,   1637. 

V.  Wood,    319,    1506. 
Hyde  v.  Dean   &  Canons  of  Windsor, 
522. 

V.  Graham,   22. 

V.  Moakes,    1864. 

V.   Skinner,    1522,   1524,    1549. 

V.  Warden,   48,   90,   934,    959,    1366. 


Hyde  v.  Wilmore,  535. 

Hyman    v.     Boston     Chair    Mfg.     Co., 
1297,    1298. 
V.   Jockey    Club,     etc.,     Co.,     1056, 
1059,    1099,    1158,    1159,    1259, 
1261,    1267,    1302,    1847. 

llynes  v.    Ecker,   939. 

Hysore  v.    Quigley,    624. 


I. 


Ibbetson  v.  Peairson,  1966. 

Ibbs    V.    Richardson,    1471,   1492,    1493, 

1871. 
Iburg  V.  Pitch,  1741. 
Iddings  V.   Nagle,    1627,    1658. 
Idel  V.  Mitchell,   633,   669. 
Idington    v.   Douglas,    1487. 
Igguldon  V.  May,  360,   518,   1031,   1522, 

1524,    1525,    1526. 
Ikard  v.  Minter,  459. 
Illingworth   v.   Miltenberger,   1093. 
Illinois  Cent.   R.    Co.  v.   Ferrell,   2131. 
V.   Ross,    1863. 
V.  Thompson,   1860. 
Illinois  Starch   Co.   v.   Hydraulic  Co., 

1978. 
Imbert  v.  Hallock,  1736. 
Imhaff  V.  Witmer's  Adm'r,   200. 
Imler  v.  Baenish,   1167. 
Inches   v.   Dickinson,    379,    1133. 
Inchiquin   v.    Lyons,   1060,    1462. 
Incorporated     Society    in    Dublin     v. 

Rose,     1539. 
Independent    Steam    Fire    Engine   Co. 

V.   Richland  Lodge  No.    39,    805. 
Inderwick  v.  Leech,   769. 
Indian    Land  &   Trust  Co.   v.    Schoen- 

felt,   216,  217. 
Indiana   I.    &  I.   R.    Co.    v.   Patchette, 

2124. 
Indianapolis  Abattoir  Co.  v.   Temper- 

ly,   642. 
Indianapolis  D.   &  W.  R.  Co.   v.  First 

Nat.   Bank,   132,   1036,    1040,   1075. 
Indianapolis      Mfg.      &      Carpenters' 

Union   v.    Cleveland,   C,   C.    &   I.   R. 

Co.,    909,    921.    924,    934.    958.    1374. 
Indianapolis      Natural      Gas      Co.      v. 
Pierce,   266,  899. 
V.   Spaugh,    266,    343. 
Ingalls  V.  Bissot,   1382,   1758,   1761. 
V.  Cooke,  524. 


2202 


TABLE  OF  CASES. 


[REFERENCES  ABB  TO  PAGES.] 


Ingalls  V.  Hobbs,   570,   571,    573. 
Ingersoll  v.  Sergreant.  1012.  1014,  1068. 
Ingle  V.   Vaughan   Jenkins,   88. 
Ingraham    v.    Baldwin,    471,    472,    480, 

483,   2116. 
Ingram  v.   Bray,   1011. 
V.  Dailey,   361. 
V.  Hartz,    2090. 
Ingwersen    v.    Rankin,    646,    679,    696, 

698,    703,    704. 
Inman  v.  Morris,   1858. 

V.   Stamp,    35,    232,    237. 
Insurance  Co.  v.  BuckstaiT,  1570. 
Insurance  &  Law  Bldg.  Co.  v.  Nation- 
al Bank,   1486,  1516,   1527,  1535. 
International    Press   Ass'n    v.   Brooks, 

1286. 
International  Trust  Co.  v.  Schumann, 
528,    529,    1262,    1289. 
V.  Weeks,   1176. 
Iowa  Savings  Bank  v.  Frink,  423,  868. 
Iredale  v.  Kendall,  1989. 
Ireland  v.   Bircham,  537. 
V.   Gauley,    834. 
V.   Johnson,    2076. 
V.  Nichols,    942,    1387,   1392,    1400. 
V.   United    States   Mortg.   &   Trust 
Co.,   977,    1135. 
Ireton  v.    Ireton,   475. 
Irion  V.  Bexar  County,   1936. 
Irish   V.   Johnston,   1110. 
Irish  Soc.   v.   Ncedham,   1024. 
Iroquois  Realty  Co.  v.   Iroquois  Hotel 

&  Apartment   Co.,   1774. 
Irvine   v.    Scott,    1434,    1468. 

V.  Wood,    790,   794. 
Irving  V.   Thomas,    295,   298,    299. 
Irwin  V.  Bank   of  United   States,    840. 
V.   Covode,   710. 
V.   Davenport,    1785. 
Isaac  V.  Clarke,    471,   483. 
Isaacs,  In  re,  1687. 
Isaacs  V.    Ferguson,    1488. 
V.  Grearhart,    114. 
V.  Holland,  194. 
Isaacson   v.   Wolfensohn,   1171. 
Isabella  Gold  Min.  Co.  v.  Glenn,  1260. 
Iseham  v.  Morrice,  290. 
Ish  v.  Marsh,   1512. 

v.   Morgan,   315,    316,   1721,   1728. 
Isham  v.  Broderick,   675,   690. 
Isherwood,  Ex  parte,   320. 
Isherwood  v.    Oldknow,    404,   882,    885, 

898,    1029. 
Isler  V.  Floy,   487. 

Isman    v.    Hanscom,    869,    1608,    1609, 
1705. 


Isom  V.    Book,   736. 

V.   Rex    Crude    Oil    Co.,    294,    709, 
736,    737,    1175,    1363. 
Ittner   v.   Robinson,   847. 
Ivay  V.   Hedges,  632. 
Ives,   In  re,   981. 
Ives  V.  Sams,  274,   1323. 

V.  Williams,   1470. 
Ives'  Case,   1320,   1323. 
I.    X.    Li.    Furniture    &   Carpet   Instal- 
ment   House    V.     Berets.     51,     1467, 
1532,   1533. 
Izon  V.  Gorton,  223,  1196,  1288,  1892. 


J. 


Jack  V.    Sinsheimer,   1054. 

Jackman  v.  Arlington  Mills,  675,   676, 

684.   697. 
Jacks  V.  Smith,  1998. 
Jackson   v.    Adams,    1790. 

V.   Aldrich,    113,    318. 

v.  Allen,    1389,    1390,    1399,    2135. 

V.  Andrew,  736. 

V.   Baker,    1440. 

V.   Bradt,   129. 

V.   Brownell,    232. 

V.  Browning,    712. 

v.   Brownson,    712,    713,    962,    963. 
1389. 

V.   Brush,    176. 

V.   Bryan,    130,    132,    1422. 

v.  Cams,    16. 

v.  Cator,  730. 

v.  Collins,    1377,    1383. 

V.   Corley,    1955,    1958,    1962,    2047, 
2049. 

V.   Corliss,    929. 

V.  Davis,   1080,   1173. 

V.   Delacroix,    372,    373,    376. 

V.  Demarest,   1408. 

V.  Deyo,    1418. 

V.  Eddy,  1262,  1279,  1282. 

V.  Elsworth,  1376,  1404,  1409. 

V.  Farmer,  1508. 

V.   Farrell,    1239. 

V.   French.     1358. 

V.   Green,    1422. 

V.   Harder,    464. 

V.   Harper,   178,  458,   501. 

V.   Harrison,   922,   1364,   1374,  1378. 

V.  Harsen,  163,  164,  452. 

V.  Hogeboom,   1383. 


TABLE  OF  CASES. 


2203 


[r.EFEKENCKS  AEE  TO  PACIES.] 


Jackson   v.    Hotchkiss,   452, 
V.  Hugrhes,   139. 
V.   King.    1827. 
V.   King-sley,    309. 
V.   Kipp,  13S3. 

V.   Kisselbrack,  375,  377,   1355. 
V.   Laughead,     1422. 
V.  McClallen,    1364. 
V.   MeLeod,   1481. 

V.   Miller,  306,  307,  309,  1422,  1487. 
V.   Mowry,    19,    1858. 
V.  Niven,    314. 
V.  Odell,   296,   298. 
V.  O'Rorke,    216,   218,    406. 
V.  Parkhurst,   151,   1432. 
V.  Paterno,    532,    835,     1229,    1263, 

1270. 
V.  Perrine,  267. 
V.   Pesked,    2117. 
V.   Port,    996. 
V.   Richards,    1806. 
V.   Robinson,    1418. 
V.  Rog-ers,    106,    1418. 
V.   Rowland,    494. 
V.  Sample,    1419. 
V.  Sheldon,    1395. 
V.   Silvernail,    922,    929. 
V.   Spear,    460,    471.    480,    4S3. 
V.   Stafford,   1464. 
V.   Stewart,   1409. 
V.   Stiles,  501. 
V.   Tibbits,   708,   736. 
V.  Topping,   1363. 
V.  Van   Hoesen,   44. 
V.  Vincent,  1377. 
V.  Vosburgh,    167. 
V.  Walsh,    1409. 
V.  Warren,  309,  1794. 
V.   Whedon,  443. 
V.   Wheeler,   1355,   1357,   1358. 
V.   Wyckoff,  1123. 
Jackson   Brew.  Co.   v.   Wagner,   1532. 
Jackson's  Appeal,  2028. 
Jacksonville    Cigar      Co.      v.      Dozier, 

1558. 
Jacksonville   M.    P.    R.    &   Nav.    Co.   v. 

Hooper,    202,   863. 
Jacob   V.   Down,   753,    773,    775,    1399. 
Jacobs  v.  Morand,  1230,  1272. 

v.   Seward,    406. 
Jaeger  v.  Mansions  Consolidated,  532, 

831. 
Jaffe    V.    Harteau,    557,    561,    575,    650, 

652,  654,   667. 
Jaffray   v.  Greenbaum,   1056. 
Jalageas  v.  Winton,  812. 
Jalass  V.    Young,   1748. 


James,    E.x    parte,    1555. 
James   v.    Benjamin,    2038. 
V.   Coe,  1341. 
v.   Dean,    1555,   1557. 
v.   .Jenkins,   1079. 

v.    Kibler's   Adm'r,   290,    799,    1517. 
V.   Kurtz,  11S3. 
V.   Landon,   431,   432,    493. 
V.   I'alterson,    453. 
V.   Pope,   1475,   1482,   1549,   1550. 
V.   Rubino,    1176,    1813. 
V.   Rutherford,   1814. 
V.   Smith,    231. 
Jamesin  v.  Thomen,   857,   859. 
Jamieson   v.  Bruce,  320. 

V.  London    &    Canadian    Loan    & 
Agency  Co.,  908,   977. 
Jamison  v.  Acker,  1002. 

v.   Ellsworth,    295,    299. 
Janes  v.  Jenkins,  827. 
Janney     Semple     Co.     v.     Goehringer, 

1707. 
Janouch   v.   Pence,   1857,   1858,    1859. 
Jansen   v.  Varnum,    675,   696. 
Jaques  v.   Gould,   100.    1027. 

V.   Millar,  393. 
Jarboe   v.   Mulry,    238. 
Jarchow  &  S^ns  v.  Pickens,   1934. 
Jarechi  v.  Philharmonic  Soc,  1570. 
Jarman   v.   Hale,    116. 
Jarrait   v.   Peters,   549. 
Jarrell  v.   Daniel,   1903,   1947. 
Jarvis  v.  Driggs,  1803.  1811. 
v.   Hamilton,  1782. 
V.   Hemwood,    768. 
Jashenosky   v.   Volrath,    1118. 
Jeakil   v.  Linne,    293,   1155. 
Jean    v.    Spurrier,    2036,   2015,    2052. 
Jefcoat   V.   Gunter,    1295. 
Jeffera  v.  Bantlcy,  1846. 

V.  Easton,     Eldridge    &     Co.,     46, 
966. 
Jefferson,   In   re,  95,    1189. 
Jefferson    v.    Jameson    &    Morse    Co., 
608,  616. 
V.  Jefferson,    739. 
V.  Ummelman,   1743. 
Jefferson    Real    Estate   Co.    v.    Killer, 

1767. 
Jellett  v.  Rhode,  230. 
Jenckes  v.  Cook,   481. 
Jencks   v.   Smith,  1629. 
Jenison  v.  Lexington,   915. 
Jenkelson  v.  Ruff,  378. 
Jenkins  v.  Calvert,   1081. 

v.   Church,    400,    1079.    1122. 

V.  Clyde  Coal  Co.,  84,   87,  1318, 


2204 


TABLE  OF  CASES. 


[EEFKRENCBS  ARE  TO  PAGES.] 


Jenkins  v.  Eldredge,  377. 
V.   Gething,    1578,    1579. 
V.  Jackson,  532,   628. 
V.  Jenkins,  1377,   1378,  1749,    1765. 
V.  Lykes,    22,    723. 
V.  McCoy,    1640. 
V.  Patton,    1938. 
V.  Pell,   2047. 
V.  Price,    808. 
Jenklnson    v.    Winans,    495,    498,    504, 

509. 
Jenks  V.   Edwards,   546. 
Jenner    v.     Clcgg,     1462,     1464,     1465, 
1870,   2001. 
V.  Morgan,   1072,   1073. 
V.  Yolland,    2022. 
Jenney  v.  Brook,   273. 
.lennier  v.   Clegg,   1492. 
Jennings   v.   Alexander,    1877. 

V.   Bond,  720.  778,  1276,  1291,  1294, 

1295. 
V.  McCarthy,     65,     110,     112,     337, 

1726. 
V.  McComb,  234,  247,  254,  255,  285, 

346,  347. 
V.  Sparkman,    957,    959. 
V.  Throgmorton,    303. 
V.  Van  Schaick,   689,  705,   790. 
V.   Webb,    1718. 
Jersey  City,  The,  2105. 
Jersey   City   Gas   Light  Co.   v.   United 

Gas   Imp.    Co.,    851. 
Jervis  v.  Tomkinson,  50. 
Jesser  v.  Gifford,  2107,  2110. 
Jesus  College  v.  Bloom,   731. 
Jeter  v.  Penn,   1649. 
Jevons   V.   Harridge,   352,   444. 
Jewell  V.   Harding,    276. 
Jewett  V.  Brooks,  1657. 
Jex  V.   Jacob,  1852 
Jimison     v.     Reifsnelder,     2005,     2073, 

2083. 
Job  V.  Banister,  1409,  1526,  1538,  1539. 
Jochen  v.  Tibbells,  78,  466. 
Johannes  v.    Kielgast,   1175,    1812. 
John  V.  Jenkins,  1327,   1982. 
John    Bros.    Abergares    Brewery    Co. 

V.    Holmes,    824 
Johns  V.   Eichelberger,   628. 
V.  Jenkins,   376,   377. 
V.  McDaniel,    27. 
V.   Whitley,    1396,    1419. 
Johnson    v.    Albertson,    133,    134,    244, 
247,    251. 
V.  Aldridge,    1844. 
V.   Atkin.¥on,   1828. 
V.   Barg,   1158. 


Johnson  v.   Beaiichamp,   1865,  1866. 
V.   Blair,   367,    583. 
V.   Bryant,   1657,    1658. 
V.  Camp,   1646. 
V.  Carre,    1088. 
V.  Chapman,    2100. 
V.   Collins,  579. 
V.   Conger,    1546,    1553. 
V.  Crofoot,    1965,    1967,    1975. 
V.   Donaldson,    329,   1433. 
V.   Douglass,  948.    1396,   1397,  1920. 
V.   Emanuel,    1898. 
V.   Foreman,  127,   1486. 
V.   Garland,    2091. 
V.   Grantham,  399. 
V.   Gurley,    1364.  1365. 
V.   Hannahan,   1506,    1507. 
V.   Hargrove,    1769. 
V.  Hartshome,   70. 
V.   Hauser,    309,    1727. 
V.  Hoffman,   38.    184,    187. 
V.  Johnson,   105,  126,  130,  132,  712, 

715,    737,   1421,   1477. 
V.  Jones,    416.    1088. 

V.   Kincaid,  1945. 

V.   Kindred   State   Bank,   862. 

V.  Lehigh     "Valley     Traction     Co., 
1391. 

V.  Lembeck    &     Betz     Brew.    Co., 
629. 

V.  McMillan,    575,    588. 

V.  May,   1853. 

V.   Muzzy,   1167,   1822,   1824. 

V.  Oppenheim,      365,       582, 
1214,    1217,    1232,    1279, 

V.  Owens,    2038. 

V.  Phoenix    Mut.     Life     Ins. 
278,   279,    282,    372. 

V.   Pollock,    308. 

V.   Reading,  955.  960. 

V.   St.   Peter's,  Hereford,   753,    772, 
899,    1489. 

V.   Sakrison,    504. 

V.   Shank,    1660. 

V.   Sherman,    977,    987. 
1131. 

V.   Skillman,   22,   30. 

V.   Snow,  673. 

V.   Somers,   286. 

V.   Stagg,   958,   966. 

V.   Tacoma     Cedar 
651,   660. 

V.   Thrower,    464,    1732,    1789. 

V.   Upham,  2030,  2059,  2079. 

V.  West,  1733. 

V.  Wild,  1004,  1134. 

V.  Wilkinson,  233. 


1174, 
1302. 


Co.. 


1129, 


Lumber  Co. 


TABLE  OF  CASES. 


2205 


[KBPERBNCES 

Johnson   v.   Wilson,    2ns. 
Johnson's  Appeal,   ISr.d.  i',r,7. 
Johnston  v.  Bates,  988,  1700.  1701. 
V.  Corson  Gold  Min.  Co.,  4  8. 
V.   Fish,  1640. 
V.  Hargrove,      1377,      1378,      1379, 

1382,   1753,    1758. 
V.   King,  78. 
V.  Kleinsmith,  1947. 
V.  Patterson,    2037,    2069, 
Johnston    Iron    Co.    v.    Cambria    Iron 

Co.,   31. 
Johnstone  v.  Hall,  803,  824. 

V.   Hudlestone,     1436,     1499,     1501, 
1502. 
Joiner  v.  Singletary,   1993. 
Jokinsky  v.  Miller,  283. 
Jolly  V.  Arbuthnot.   326,  472,  476,   477, 
897,  915,   19S9,  1990,  2044. 
V.  Ghering-,    1790. 
Jones  V.  Avant,  1975. 
V.   Barnes,    1328. 
V.  Bridg-man,    1097,    1327,    2030. 
V.   Carter,    1174,    1175,    13G9,    1390, 

1401,  1402. 
V.  Chamberlin,    1651,    1973. 
V.  Chapman,    1513. 
V.  Chappell,   719,   2107,   2111. 
V.   Clark,   412,  414. 
V.  Cooley,   1614. 
V.   Daly,  362,   363. 
V.  Davies,    89. 
V.  Detroit  Chair  Co.,   1590. 
V.  Dove,   486. 
V.  Duggan,  378. 
V.  Durrer,     186,     188,     1399,     1651 

1727,  1775. 
V.  Eubanks,   1911,    1968,    2051, 
V.   Felch,    1832. 
V,  Felker,    575. 
V,  Findley,    2037, 
V.  Foley,    1513. 
V.  Fovi^ler  Drug  Co.,  1213. 
V.  Fox,   1904. 
V.  Freidenberg,    648,    697, 
V.  Gammon,   714,   730. 
V.  Goldbeck,    2011. 
V.   Green,    1053. 

V.   Gundrim,  2002,  2005,  2027,  2052. 
V.  Hamm,   950,    1518. 
V.  Hathaway,   295. 
V.   Hausmann,    983,   1080, 
V.   Hill,    320,    1643, 
V.  Hoard,  1692. 
V.  Hunter,   818. 

V.  Jones,    113,    306,    314,    946,    947, 
2041. 


Ann  TO  P.VGKs.] 

Jones  V.  Kansas  City  Board  of  Trade. 
950,    1518. 

V.   King,    901. 

V.  Laturnus,   1103. 

V.   Lavlngton,    520,    525,    526. 

V.   Linden   Building  Ass'n.  1691. 

v.  Madison  County,  15. 

V.   Marcy,    235. 

v.   Mark.s,   159,  866. 

V.  Marsh,    1457. 

V.   Mills,     1357,     1429. 

V.   MilLsaps,    581,    624,    625. 

V.   Murdaugh,    1987. 

V.  Ni,\on,  123,  124. 

V.   Parker,    880,    9C2. 

V.  Perelra,  1510. 

V.  Peterman,    201,    262. 

V.   Phipps.     1439. 

V.  Powell,   2012. 

V.  Peed,    1371,    1378. 

V.   Reiily,  460,  471. 

V.  Heynolds.    375,   376,    1856,   1882. 

V.   Rigby,    874. 

V.   Roberts,   395. 

V.   Rose,    1067,    1166. 

V.  Rushmorc,  1341. 

V.   Shay,  29,   105. 

V.   Shears,   127,  14C5,   1471. 

V.   Shufflin,  1589. 

V.   Smith,  1022,   1109. 

V.   Spartonburg   Herald   Co.,    1427. 

v.   Springfield   Water   Works    Co 

1231. 
V.   Stevens,    1922. 
v.   Tatliam,    490. 
V.   Temple,   113,   306. 
V.   Thomas,    1645. 
V.  Thorne,   802. 
V.  Tipton,  1866. 
V.  Todd,    486. 
V.   Verney,   400,    404. 
v.   Walker,   2048,   2071. 
v.  Watts,   394. 

V.  AVebster,    1629,   1970.  1971,  1974. 
V.  Whitehead,    784. 
v.  Willis,    134,    1427. 
V.  Wills,  131. 
Jordan   v.    Benwood,   2119. 

V.   Bryan,   1045,   1947,   1962. 

V.   Davis,   279,   280. 

V.  Indianapolis     Water    Co.,     221. 

962,    1020. 
V.  Jordan,  1862. 
V.   Katz,    451.    471, 
V.  Lindsay,  1653. 
V.  Neece,  44. 


2206 


TABLE  OF  CASES. 


[REFERENCES 

Jordan   v.   Sullivan,    653,    656,    670. 
V.   Walker,    1784. 
V.   Wikes,   191. 
Jory   V.    Orchard,    1446. 
Joseph  Hall  Mfg.  Co.  v.   Hazlitt,  1623. 
Joseph   Schlitz    Brew.    Co.    v.   Nielsen, 

809,  812. 
Joslin  V.   Ervien,  169,   907,  956,  978. 

V.   Jefferson,    1041. 

V.  McLean,    1335,    1336,    1338. 
Joslyn,    In   re,    2020. 
Josslyn  V.  McCabe,  1587.  1592. 
Joule  V.   Jackson,   2007.   2009. 
Jourdain  v.  Wilson,   890. 
Jourg-ensen  v.    Traitel,    374. 
Journe   v.   Hewes,    16S6. 
Journeay  v.    Brackley,    982,   983,    1873 

1876. 
Joyce  V.   Martin,   655,    794. 

V.   Spafford,   1146. 

V.  Wilkenning,   1906,    2091. 
Joyner  v.  Weeks,  48,  768,  769,  7S3,  871. 
Joynes  v.   Wartman,    2051. 
Jucht   V.   Behrens,    633,    669. 
Judd    V.    Arnold,    285,    287,    1721,    1724, 
1741,    1742,   1784. 

V.   Bennett,    983. 

V.  Cushing,    607,    641. 

V.  Fairs,    126,   1758,   1762,    1763. 

V.  Fellows,  1157. 

V.  Woodruff,    320. 
Judge  V.  Curtis,  1929. 

V.   Eager,    1081,    1082. 

V.   Fiske,   2033. 
Juergen    v.   Allegheny   County,   1815. 
Julian  V.    Berardini,    246. 
Junction     Mining    Co.     v.    Springfield 

Junction   Coal  Co.,   742,   776,   777. 
Junenian  v.  Franklin,   503,    1718,   1779. 
Jungerman    v.    Bovee,    365,    730,    1326, 

1589. 
Justice  V.  Lowe,   1754. 
Juvenal  v.   Patterson,    1111,   1848. 


K. 


Kaas'   Estate,   In  re,    1866. 

Kaatz   V.   White,   1638. 

Kabley    v.    Worcester,    etc.,    Gaslight 

Co.,    348,   372,    373. 
Kabus  V.   Frost,   583,    593. 
Kaestner  v.  Day,    1623. 
Kahler   v.    Hanson,    1092. 


ARE  TO  PAGF-.S.] 

Kahlkoff  V.  Nelson,  1044. 
Kahn  v.   Simons,   1168. 

V.   Tobias,    1812,    1980. 
V.   Triest-Rosenberg-     Cap  Co.,  793. 
Kaier  v.  Leahy,  347,   1796. 
Kain  v.  Hoxie,   951. 
Kalis   V.   Shattuck,    075,    676,   677,    680, 

692,    694. 
Kalman    v.    Cox,    774. 
Kamerick   v.    Castleman,    13,    1652. 
Kane  v.  Mink,  110,   418,   533,  534,  1297, 

1299. 
Kankakee  &   S.   R.   Co.  v.  Horan,  105, 

2106,    2110,    2118,    2119,    2125. 
Kann  v.  King,   1415. 
Kansas    City    Elevator    Co.    v.    Union 

Pac.    R.   Co.,   933,   935,   1363,    1373. 
Kansas   City,  Fort  Scott  &  M.    R.   Co. 

V.    King,    2101. 
Kansas   Inv.  Co.  v.  Carter,   522,   527. 
Karbach  v.   Fogel,  1294. 
Karlson   v.    Healy,   632,    637. 
Karns  v.   McKinney,   2011,  2019. 

V.   Tanner,  9. 
Kash  V.  Huncheon,  1700. 
Kaspar  v.   Dawson,   2107. 
Kassel   v.    Snead,   2092. 
Kassing   v.    Keohane,    2017. 
Kastner   v.   Campbell,   1168. 
Kathman  v.    Walters,    302. 
Kaufman   v.    Clark,   10. 
v.   Cook,    154. 

V.  Underwood,    1911,    1912. 
V.   Liggett,    1546,    1815. 
Kavanaugh  v.   Gudge,   1506. 
Kaven   v.    Chrystie,   lOGl,    1173. 
Kay   V.  Curd,    310. 
Kazis  V.   Loft,   1788. 
Kean  v.  Kolkschneider,   1150. 
Kearines     v.     Cullen,     574,     575,     631, 

640. 
Kearny  v.  Central  R.  Co.,  791. 
Kearsley   v.   Oxley,    978. 

V.  Philips,   326. 
Keating  v.   Condon,  46. 
V.   Irish,    1096. 
V.   Keating,    213. 
V.   Mott,    637. 

V.   Springer,    529,     815,    826,    1237. 
1263,    1278,    1280,    1809,    1845. 
Keaton  v.  Thomasson,   328. 

V.  Tift,    1992. 
Kecoughtan   Lodge    v.    Steiner,    642. 
Keech    v.    Hall.    320,     410,     412,     1418, 

1555,    1643,    1645. 
Keefe  v.  Furlong,  1598. 
Keegan  v.  Kinnaire,   68,  1495. 


TABLE  OF  CASES. 


2207 


[nEFEKENCES 

Keeler  v.  Davis,  1374,  13S9. 
V.  Eastman,    712,    713,    737. 
V.  Lederer  Realty   Corp.,   694,  703 
791,   794. 
Keeley  Brew.  Co.  v.  Macon,  2045. 

V.  Mason,   868,   870,   1992. 
Keeley  Inst.   v.    Shaw,    896. 
Keeling  &   Co.   v.    Wlieeler,    1199. 
Keely  V.   O'Conner,  673. 
Keen  v.  Pi-iest,   2023,   20S5. 
Kehoe   v.    Lansdowne,    69. 
Keig-hley's   Case,    743. 
Keith   V.    Blanton,    1923. 

V.  R.   Gancla  &  Co.,   413. 
Keith,  Prowse  &  Co.  v.  National  Tel 

Co.,   1463. 
Kellam   v.   Janson,   1512. 
Kellenberger    v.    Foresman,    14,     607 

1236. 
Keller  v.   Fisher,   257. 

V.   Klopfer,    193,    1718,    1725,    1727. 
V.   Pagan,    17G0. 
V.   Weber,    2034,    2063,    2068. 
Kelley  v.   Chicago  M.   &  St.   P    R    Co 
364. 
V.   Goodwin,       1965,       1967,       1972 

1973. 
V.   Kelley,    455,    461,    472. 
V.   King,    1911,   1912,   2049. 
V.   Todd,    1637. 
Kellogg  V.    Boehme,    2037,    2038. 
V.   King,    25. 
V.  Lowe,   1289. 
V.  Malick,    561,    590. 
V.   Sweeney,    2105. 
Kellogg   Newspaper   ITnion    v.    Peter- 

.son,    1898,    2011,    2014. 
Kellum  V.   Balkum,    1733,   1780. 
Kelly  V.    Bowerman,    874. 

V.   Chicago,    M.    &    St.    P.    R.    Co 

1694. 
V.   Clancy,    1736. 
V.  Coote,  199. 
V.   Davis,   549. 
V.   Eyster,    169,     1929,    1930,     1963 

1964. 
V.   Kelly,   1556. 
V.   Miles,    1236,    1302. 
V.   Noxon,   1332,    1342. 
V.   Patterson,   1451.   1490. 
V.   Rogers,    524,    1653,   1665. 
V.   Smith,    1734. 
V.   Teague,    1774. 
V.   Varnos,    1520,    1539,    1752. 
V.  Waite,    57. 
Kelsey  v.   Durkee,   722,    1570. 
V.  Tourtelotte,    279,    359. 


AIIE  TO  PAHES.] 


Kelsey    v.    Ward,    588,    1238,    1842 
Kelsey's    Case,    198. 
Kelso    V.    Crilly,    1495. 

V.    Kelly,    1052,    1535,    1546 
Kemble  Coal  &  iron  Co.  v.  Scott,  2.58 
Kemp   V.  Bird,    892. 
V.  Derrett,   &4. 
V.   Goodal,    431. 
V.   Sober,    801. 
Kempe    v.    Crews,    2012. 
Kendall  v.  Baker,   1047. 

V.  Garland,    288,    471,    ino     I800 
1882.  '         "   ' 

V.  Hathaway,     1566. 
V.   Moore,    1471,    1484. 
Kendall    Boot    &    Shoe    Co.    v.    Bain 
I       279,    1973.  • 

I  Kendrick  v.  Lee,  2083. 
Kenin  v.  Guvernator,  1441. 
Kennard    v.    Harvey,    1905,' 1922     1931 
1958,    1961,    1963.  ' 

Kennebec  Bank  v.  Turner,   1137    1138 
Kennedy   v.    Campbell,    2135. 
V.    Evans,    1137. 
V.   Owen,   895. 

^'sgo"^'^^  ^™«-  ^-  lo^a  State  Ins.  Co., 

Kennett  v.  Plummer,  415. 
Kenney  v.  May,  2063,   2064. 
V.    Rhinelander,    638. 

V  Sweeney,   152 

V  Wentworth,  45. 
Kennicott    v.    Sherwood,    1469. 
Kennon  v.  Wright,   1902. 
Kenny  v.   Barns,   645. 

V.   Collier,   548,  1294. 
V.   Sen   Si   Lun,   1390. 
Kent  V.  Stoney,  898. 

V.  Todd,   793. 
Kentucky     Lumber     Co 

1372,    1516,    1539. 
Kentucky    River    Nav.     Co.    v     Com 
1365.  ■  • 

j  Kenyon  v.    Berghel,  367. 
V.  Manley,   1764. 
v.    Young,    1000. 
Keogh    V   Daniell,    1587,    1591,    1614 
Kepley  v.   Scully,   489. 
Keppell   V.    Bailey,    891. 
Keppler    Bros.     Co.    v. 

1533. 
Kerby  v.  Clapp,  1617. 

V.   Harding.   2062,   2072,    2084 
Kerlcy  V.   Mayor,   302.   805,   1231. " 
Korn   V.   Myll,   562. 
V.    Nohle.    1939. 
Kcrnan    v.    Humble,    2133. 


V.     Newell, 


Heinrchsdorf, 


2208 


TA.BL.E  OF  CASES. 


[KEFERENCES 

Kernochsm     v.     Manhattan     R.     Co., 
2117,   2123,   2133 
V.    N.    Y.    El.    R.    Co.,    2097,    2132, 

2197 
V.  Whiting,   952 
V.   Wilkens.    128,    243,    250,    255. 
Keroes  v.  Richards,  599,   621,  751.  754, 

755,    758,    774. 
Kerr  v.  Clark,  1333. 
•    V.  Day,  866,   1689. 

V.     Kingsbury,     1571,     1586,     1596, 

1597,  1605. 
V.  Lucas,    480. 
V.  Merchants    Exchange    Co.,    97, 

222,  1196. 
V.   O'Keefe,    1404, 
V.  Sharp,  2085. 
v.   Shaw,   534. 
V.   Simmons,   1496. 
Kerrains  v.   People,   100,   332,   333,   335, 

337. 
Kerrison   v.    Smith,   22. 
Kershaw   v.    Supplee,    88,    353. 
Kerwin    v     James,    68. 
Kessler  v.  McConacliy,  1160. 

V.   Pearson,    303. 
Keteham    v.    Brazil    Block    Coal    Co., 
1828. 
V.   Ochs,   1473,   1479. 
Keteltas  v.  Coleman,  861. 
Ketsey's  Case,  197,  198,  199. 
Kettle   V.   Elliott,    198. 

V.   St.  John,   282. 
Kettle    River    R.    Co.    v.    Eastern    R. 

Co.,    890. 
Kew    V.    Trainor,    918,    938,    944,    945, 

1366,   1374,   1389. 
Keyes   v.   Hill,   1888. 

V.    "W^estern    Vermont    State    Co., 
5S7. 
Keys  V.  ±i"'orrest,  495. 
Kidd   V.   Dennison,    712,    729,   730. 
Kidg-ill    V.   Moore,    2106,    2109. 
Kidwelly   v.    Brand,    961,    1377,   1379. 
Kiernan    v.     Bnph    Temple     of    Music 
Co.,    527. 
V.   Cashin,   174r>. 
V.  Germain.    603.    605,    1167,    1238, 

1239,   1843. 
V.  Linnehan,    309.   1727. 
V.   Terry,  299,  451,  501,  1840. 
Kiersted   v.   Orange   &  A.   R.   Co.,   359, 

1135,   1880. 
Kiestcr  v.  Miller,  954. 
Kieth  V.   Paulk    1858. 
Klghly  V.  Bulkly,  1075. 
Kilburn  v.  Ritchie,   1418. 


ARE  TO  PAGES.] 

Kile  V.  Giebner,   907,   1573,   1581,   158-i. 
Ivilkenny  Gas  Co.  v.  Somerville,   1402. 
Killam   v.   Allen,   214. 
Killebrew  v.   Hines,   315. 
Killtck   V.    Plexney,    1556. 
Killion  V.   Power,    793. 
Kilioren  v.  Murtaugh,  473. 
Kilpatrick  v.   Harper,   188. 
Kimball  v.   Adams,   1562. 

V.  Cross,   1527. 

V.  Grand  Lodge  of  Masons,  528, 
529,  535,  1261,  1301,  1569, 
1570. 

V.  Lockwood,  410,  412,  414,  873, 
1116. 

V.   Pike,    873,    1111,   1116. 

V.  Rowland,    1758,    1769. 

V.   Sumner,    1119. 

V.   Walker,    1106,    1113. 
Kimpton  v.   Walker,  963,   964,   1033. 
Kincaid  v.   Kincaid,  390,   394. 
Kinear  v.   Shands,   2091. 
King  V.   Bird,   533,    534. 

V.   Blount,    1962,    1964. 

V.    Boiling,    439,    1751. 

V.   Bosserman,    1045. 

V.  Brewer,   1805. 

V.   Conolly,  1442,  1445,  1746. 

V.  Cults,    1732. 

V.    Davies,    1371. 

V.  Dickerman,  406,   1731,  1735. 

V.    England,    2057,    2065. 

V.  Eversfield,  140,  1432,  1435,1448. 

V.   Foscue,   401,   1637. 

V.   Eraser,  1S22,   1894,   1895. 

V.    Henderson,    1960. 

V.  Hill,  462. 

V.  Housatonic  R.  Co.,  873,  874, 
1115. 

V.  Johnston,  1866. 

V.    Jones,    901. 

V.  Lawson,  117,  1425,  1807. 

V.  Miller,   706,  707,  712,   713,  715. 

V.  Murray,    456. 

V.   Raab,  1677,  1685,  1690. 

V.  Reynolds,  542,  544,  546,  547, 
1504,  1736. 

V.  Rowlett,   1929. 

V.  Thompson,  689. 

V.   Wilcomb,   1629. 

V.  Wilson,  914,  1483,  1524,  1700. 

V.   Woodruff.   254,    1890.   1893. 
King's  Leasehold  Estates.   103. 
Kingdon  v.  Nottle,  584,  901. 
Kingsbury  v.  Collins,  1632.   1633,  1639. 

V.    Powers,    859. 

V.   Westfall,  1140,  1192. 


TABLE  OF  CASES. 


2209 


[UEFERENCES  AEE  TO  PAGES.] 


Kingsbury  v.  Williams,    1140. 
Kingsland  v.   Clarke,   1184. 

V.    Ryckman,   405. 
Kingsley  v.  Hillside   Coal  Co.,   33. 

V.   Sc'hmicker,   2090. 

V.   Siebrecht,  960. 
Kinleyside   v.    Thornton,    726. 
Khiney  v.  Harrett,   217. 

V.    Laman,   494,   509. 

V.   Libbey,    1263. 
Kinsella  v.    Hamilton,   2089. 
Kin.sey  v.  Minnick,  194,  1329. 
Kinsley  v.   Ames,    329,   1433,    1730. 
Kinsman   v.   Greene,   422. 
Kip  V.  Merwin,  1204,  1209. 
Kiplinger    v.    Green,     12,     1273,     1333, 

1641,  1655,  1661. 
Kirby  v.   Boylston   Market  Ass'n,   704. 

V.  Wylie,   619. 
Kirchner  v.   Smith,    687. 
Kirk  V.  Taylor,  452. 
Kirkland  v.  Briancourt,  1394. 
Kirkpatrick  v.    Ponner,   928. 
Kirtland    v.    Pounsett,    1885. 
Kirton    v.    Elliott,    198. 
Kistler  v.  McEride,    1035,   1037,    1042. 

V.  Wilson,    1259. 
Kitchen  v.   Buckly,   903,  1832. 

V.   Pridg^en,   139. 
Kitchen    Bros.    Hotel    Co.    v.    Philbin, 

531,   818.   826,    1294,    1844. 
Kites  V.  Church,    1880. 
Kittick   V.    Flexney,    1555. 
Kittle  V.    St.    John,    87,    1313. 
Kittredge  v.  Peaslee,  1858. 
Klausner  v.   Herter,  627. 
Kleber   v.   Ward,    2005. 
Kleespies   v.    McKenzie,   1484. 
Klein  v.  McFarland,    2040. 
Kleun  V.  Vinyard,    2091,   2094. 
Klie  V.   Von   Broock,    718,   731,   735. 
Kline   v.   Hanke,    1851. 

V.  Jacobs,    1693,    1854,    1856,    1S79, 
1880,    1890,    1892. 

V.   McLain,    365,    581. 
Kling  V.  Dress,  760. 

Klingenstein  v.   Goldwasser,   133,   134. 
Kliniier   v.    Guggenheimer,    1158. 
Klopfer  V.  iveller,    308,   309. 
Knapp    V.    Marlboro,    268,    517. 
Knatchbull  v.   Fearnhead,   364. 
ivnauss  V.   Brua,   696,    791. 
Knecht   V.    Mitchell,    1420. 
Kneeland  v.   Beare,   625,   1336. 
Knefel    v.    Daly,    363,    439. 
Knerr  v.  Bradley,   yi,  1686. 
Knibbs   v.   Hall,    1098. 


Knickerbacker  v.  Killmore,  965. 
-ivnickerbocker    Trust     Co.     v.     Penn. 

Cordage  Co.,  1566. 
Knight  V.   Benett,  237,   1991, 
V.  Clarke,    510. 
V.  Co.x,  473,    ^85. 
V.   Egerton,   2084,   2087. 
V.  Hartman,    309,    313. 
V.  Indiana    Coal    &    Iron    Co.,    28, 

33,    102,    103. 
V.  Mory,    923. 
V.  Orchard,    844,    1603. 
Knight's  Case,  1009. 
Knill   V.    Prowse,    1108. 
Knipe    v.    Palmer,    219,    352.    428,    431, 

444. 
Unobcloch,  Ex   parte,  2014. 
Knoepker  v.  Redel,  932,   944. 
Knoll's   Case,    747,    1119. 
Knotts   V.    Curtis,    2084,    2087. 

V.  McGregor,    353. 
Knowles  v.  Cuddeback,   1137,   1139. 
V.  Hull,   1547. 
V.  Inman,    501. 
V.  Maynard,   1074. 
V.  Murphy,     327,     464,     474,     1686, 

1790,    1793. 
V.   Pierce,    2008. 
V.   Sell,    1916,    1957. 
V.   Steed,    2094. 
V.   Steele,   392. 
Knox  V.  Heliums,  1951. 

V.   Hexter,    1151,    1152,    1237. 
V.   Hunt,    1940,    1953. 
V.  Marshall,    1652. 
V.  Spratt,    1865. 
i>.nutsen   v.   Cinque,    782,    1982. 
Koch  V.   National  Union  Bldg.   Ass'n, 

260,   261,   263. 
Koeber   v.    Somers,    521. 
ivoegel    V.    Michigan   Trust   Co.,    1842, 

1847. 
Koehler    v.     Brady,     945,     1264,     1342, 

1388,  1559. 
Koeleg    V.    Phelps,     1641,    1642,    1656, 

1898. 
Koen   V.  Bartlett,   710. 
Koenig   v.    Bauer,    1816. 

V.  Miller      Bros.      Brewery      Co., 

1140. 
V.  Mueller,   1581. 
Kofoid      V.      Lincoln      Implement      & 

Transfer  Co.,   243. 
Kohl  V.   United  States,  69,  2131. 
Kohne  v.  White,   589,  591,  596. 
Koken  Iron  Works  v.  Kinealy,   136. 
Kolaskey  v.  Mlchels,  1548. 


L.   and  Ten.  139. 


2210 


TABLE  O:^  CASES. 


fnKFRI^RNrES  AKE  TO  PAGES.] 


Kollook   V.   Scrrbner,    1516,    1517.    1518, 

1520.   1553. 
Koontz    V.    Jlanimoncl,    1779. 
Koi  litz  V.  Gustavus,  245,  261. 
Koppcl  V.  Tiiyou,   909,  911,  1771. 
Korn  V.  Browne,  1173. 
Kower  v.   Gluck,   1318,   1498,   1744. 
Kramer  v.  Amberg,   1393,    1406,    1752. 

V.    Cook,     1205,    1515,    1527,    1531, 
1841. 
Kranz  v.  Uedelliofen,  324. 
Krausi  v.  Fife,  12:;3,  1227. 
Kreiter  v.   Hammer,    1249. 
Ivietzerv.  Wyscnj^.   2115. 
Kreiitz  V.   McKnigut,    1403. 
Ivrevet  v.  Meyer,   1506. 
Kribbs  v.   Alford,   1600,   1C02. 
]:rider  v.  Ramsey  99,    919,   1001,   1351. 

1877. 
Kriz  V.  I'eeg-e,  287. 
Kroeg'er  v.   Bohrer,  133. 
Kruegel  v.  Berry,   1681. 
Kruegor  v.  Ferrant.  574.  624,   625. 
Krug  V.  Davis,  19. 
Krumweide  v.   Schroedor,    1729. 
Kugel  V.  Paii'ter.  ,",9. 
Kubl  V.    Mowell.    2070. 
Kuhlman  v.   J.leici-,    ;G04, 
Kuhn  V.  Fei.ser,  Z\iO. 

V.  Smith,   1470. 

V.   Sol.    Hcavenikli    Co.,    627. 
Kunckle   v.    Wynick.    1033. 
Kuneman  v.  Boisse,   750. 
Kunkle    v.    Philadelphia    Rifle    Club, 

24,  25. 
Kunzie  v.  Wixom.    1357,   1434. 
Kurr  V.   Brobst,   1173. 
^^urrus  V.  Seibert,  813. 
Kuschell  V.  Campau.  1970. 
ivusel  V.  Watson,   128. 
Kushes  V.  Ginsberg,  623. 
Kutter     V.     Smith,     1590,     1692,     1691, 

1701.   1705. 
Kyle  V.  Proctor.   1467. 

V.   Stocks,    135  6. 

V.   Swern,  1926.   1934. 
Kyte  V.   Kellar.  65. 
Kyzer  v.  Middleton,  2078. 


I.acey  v.  Newcomb,   164. 
I.,aehman    v.    Deisch.    2098. 
Lack  V.   Wyckoff,   561. 
],acrabere    v.    Wise,    1763,    1766,    1793. 
1800. 


Lacy  V.  Hall,  1556. 

V.    Weaver.    1665. 
Lacy  Bros.  &  Kimball  v.  Morton,  1048. 
Ladd  V.  Lawkes,  170C. 

V.  Riggle,  1357. 

V.  Shattuck,  714. 

V.   Smith,    1322,   1337. 

V.  Thomas,  2030,   2079. 
Ladner  v.  Balsley,   296,   604.    606,   1942, 

1948. 
La  Dow  V.  Arnold,   975,  1840. 
La  Farge  v.  Halsey,  1146. 

V.  Mansfield,   599. 

V.   Park.   1810. 
Lafl'an  v.  Naglce,  888,   1689. 
Lafferty  v.  Hawis,  133u. 
L.i.gerfelt  v.  Mclvie,  256. 
!  a^iuerenne  v.  Dougherty,  1036. 
l^ahy  V.   Holland,   345. 
Laidler  v.  Young,  o99. 
Lairubeer  v.  Taylor.    14S8. 
Laird  v.  McGeorge.   594. 
Lake.  In  re,  981. 
Lake  v.  Campbell.  46.  275,  279,  282. 

V.  Gaines  &  Co.,   1935. 

V.   Smith,    1500. 

V.  Swtet,  186. 
;.,.ike    Liie    Gas    Coal    &    Coke    Co.    v. 

Patterson,   400. 
Lake   Superior   tliiip  Canal  R.   &    Iron 
Co.     V.     McCann,     159S,     1599,     1600, 
1603,   1973. 
Lally  V.  New   Voice,    1486. 
Lamar  v.   McNamea,   1313,  1332.   1342. 

V.  Sheppard,   1793. 
Lamb    v.    Constantine    Hydraulic    Co., 
1049. 

V.   Crosland,   2113. 

V.  Foss,  324. 

V.  Lamb,   1864.   1887. 

V.  Rathburn.  1056. 

V.   Wall,    2086. 
Lambert  v.  Borden,  1477. 

V.  McDonnell,    1331. 
Lamberton  v.   Stouffer,    1045. 
Lambeth  v.  Ponder,  1933. 
Lambson  v.  Matthew,  2052,   2057,  2066. 
Lametti    v.    Anderson,    582,    888,    1702, 

1711. 
Lammott  v.  Gist,  1313. 
Lamott  V.  Sterett,  1191. 
Lamotte  v.   Wisner,   2066,  2072. 
Lampleigh  v.  Brathwait,  917. 
Lamson    v.     Clarkson,     512,     513,     515, 
1182. 

V.   Moffat,  167. 


TABLE  OF  CASES. 


2211 


[KEFEREWCES  ABE  TO  PAGES.] 


Lamson  v.  Sutherland,  1121. 
Lancashire    v.    Mason,    495,    876,    880, 

1117. 
Lancaster  v.  De  Trafford,   385. 

V.  Whiteside.   1932,   1963. 
Land  v.  x'  itzgerald,  564. 
Lander    &    Bagley's    Contract,    In    re, 

385,    395. 
Landesman  v.  Hauser,  1178. 
Landgraf  v.    Kuh,  673. 
Landon  v.  Piatt,   1562,   1615. 

V.  Townsend,  117. 
Landsberg     v.     Tivoli     Brewing     Co., 

1437,    1475,    1476,    1487. 
Landt  v.  McCuUough,  975. 

V.     Schneider,    230,    556,    575,    578, 
1337. 
Landydale  v.  Cheyney,  965. 
Lane  v.  Brooks,   1753. 
V.  Cox,   650,   659. 
V.  Crockett,  1254,   1255. 
V.  Dixon,   36. 
V.  Drinkwater,    1832. 
V.  King,  145,  410,  417,  1640. 
V.   Moeder,   1700. 
V.   Nelson,   84,    1327,   1338,   1532. 
V.  Newdigate,   768. 
V.    Pollard.    1926,   1933. 
V.   Ruhl,    1426. 
V.  Scagle,  793. 
V.  Thompson,  737. 
V.  Young,   494,   509. 
Lane's  Lessee   v.    Osment,   487. 
Lang   V.   Crothers,    458. 
V.  Everling,   1733. 
V.  Young,   1753,  1774. 
Longabaugh   v.    Anderson,    647,    679. 
Langan   v.   Schlief,   1441,    1458. 
Langford  v.   Selmes,  424,  425.  609,  513, 

909,   914. 
Langley  v.  Ross,   1774. 
Langmede  v.   Weaver,   278. 
Langston  v.  State,  1565. 
I.^ngton  V.   Henson,   925,   943. 
Lanigan  v.   Kille,    518,   539. 
Lankford  v.   Green,  1858. 
Lanpher  v.    Glenn,    269. 
Lanphere    v.    Lowe,    1569,    1581.    1582 

1621.   1973. 
Lansdowne   v.    Lansdowne,    731. 
Lansing  v.  Pine,  92. 

V.    Prendergast,    1189. 
V.   Rattoone,    2037. 
V.   Thompson,  1217.  1222. 
V.  Van    Alstyne,    535,      950,      1821 
1823. 


Lansing    Iron     &    Engine     Works    v. 

Wilbur,   1568. 
Lant  V.   Norris,   761. 
Lanyon  v.   Woodward,   1649. 
Lanvoa     Zinc    Co.     v.     Freeman,     210, 

1167. 
Lapbam  v.  Norton,  310. 
Laplarite  v.   La  Zcar,   629. 
I>arkin     v.     Avery.     12,     130,     131,     245, 
1272,     1333.    1428,    1507,    1510. 
V.   Mislnnd.  420. 
Larnod    v.    Claiko.    1729. 

V.   Hudson.    105,   1422. 
Laroussinl  v.  Werlein.  1536. 
Larrabee   v.    Lumbert,   318.   1873,    1875. 
Larue  v.   Farren  Hotel  Co.,  687. 
T^sh  v.  Ame.s,  115,   118.   143,  151,   1672. 
Lasher   v.   Graves,   1769. 

V.   Heist,    1490. 
I,asker  Real  Estate  Ass'n  v.  Ha:cher. 

617. 
Lassell  v.  Reed.  787. 
Lassorot  v.  Gamble,  1404. 
Lataillarde  v.  Santa  Barbara  Gas  Co., 

440. 
Latham  v.  Atwood,  1634. 
lathers  V.  Coates,   1227.  1234,  1280. 
Lathrop    v.    Clewis,    1021,    1923,    1993. 
1998,   2045.   2049. 
V.    Standard    Oil    Co..    1858.    1864, 
1886. 
Latimer    v.    Groetzinger,     1054,    199T« 

2004. 
Latta  V.  Pierce,  1118. 

V.   Weiss,  1124. 
Laughran  v.  Smith,  249,  253,  274,  1171, 

i:!29,  1333. 
Lausman   v.  Drahoss,   462. 
Lautman  v.  Miller,  1491,   1492,   1805. 
Lavender  v.  Hall,  1960. 
Lavenson  v.   Standard  Soap  Co.,   1565. 
Law  v.  Haley,  272. 

v.    Pemberton,   379. 
Lawes  v.  Bennett,  1687. 
Lawrence  v.   Bell,   280. 
V.  Burrell,  1242. 
V.  Denham  Co.,  1265. 
V.   Faux,   1330. 
V.   French,    1148,    1149,    1165,    1296. 

1893,    2029. 
V.   Hammett,    1826,    1827. 
v.  Hasbrouck,    244. 
V.  Kemp,  1570.  1688. 
V.  Knight,  1701. 
V.  Miller,  494. 

V.  Mycenian  Marble,   1242,  1270. 
V.  Phy,  1976. 


2212 


TABLE  OF  CASES. 


[references 

Lawrence   v.   Shipman,    616. 
Lavvrie  v.   Lees,  1401. 
Lawson  v.  Goodwin,  2096. 
Lawton  v.  Lawton,   1578. 

V.  Salmon,  1564. 
Lay  V.  Bennett,  1282,  1303. 
Laycock  v.  Tufnell,   2037. 
Layton  v.  Dennis,    1793,   1806. 
Lazarus   v.    Heilman,    888,    1C75,    1690. 
V.  Ludwig,   782. 
V.  Parmly,  557,  559,   562,  575. 
Lazarus'  Estate,  In  re,  33. 
Lazier  v.    Henderson,    1043. 
Lea  V.  Hermandez,  62,  115. 

V.  Netherton,   15,   516. 
Leach  v.  Ansbacher,  866. 
V.  Good,  839,   841. 
V.  Thomas,  728,  746,  1578. 
Leadbeater  v.   Roth,  1286. 
Leader  v.  Homewood,  1586. 
Leahan  v.  Cochran,   690,   791. 
Leahy  v.  Lubman,  1447,  1746,  1803. 
Lear   v.    Caldecott,    2077,    2081. 

V.   Edmonds,   1093,   2061. 
Learned  v.  Ryder,  444,  1168. 

V.  Tallmadge,  16. 
Learoyd  v.   Godfrey,   669,   670. 
Leary  v.  Hutton,  1524. 
V.  Langsdale,   1790. 
V.  Meier,   1359. 
V.  Pattison,  1382,  1755. 
Leaux  v.  New  York,  659. 
Leavltt  V.   Fletcher,  574,  581,  5^6,   617, 
618,    761,    762,   763,    766,    1202, 
1211. 
V.    Leavitt,    13,    105,    118,    120,    130, 

1422,  1434,   1450. 
V.  Murray,    1060. 
V.  Stern,  259,   363,  1309,   1324. 
Lebanon    Carriage    &    Implement    Co. 

V.  Faulkner,  813. 
Lebensburger  v.  Seofield,  697. 
Le  Comte  v.  Freshwater,  300. 
Ledbetter  v.   Quick,  1910,   1911. 
Ledoux  V.  Jones,   1146. 
Ledsinger   v.    Burke,    1322,    1336,   1337. 
Le    Duke    v.     Barnett,    927,    928,    935, 

1735. 
Ledyard  v.  Morey,  221,  1856. 
Lee  V.  Arnold,  1385. 
V.  Bolles.  1837. 
V.  Cooke,    2035. 
V.  Gaskell,   1584,    1585. 
V.  Hawks,   714. 
V.  Hernandez,   107. 
V.   Ingraham,  638. 
V.  Lee,  213. 


ARE  TO  PACES.] 

Lee  V.  Lopes,  1248,  1250,  1254. 
V.  Lorsch,  932. 
V.   McLaughlin,   695,    790. 
V.  Norri.s,   421. 
V.   Payne,   918. 
V.  Risdon,  1574,  1578. 
V.   Smith,   250,   673,   2039. 
Leebrick  v.   Stable,    283,    866. 
Lee   Chuck    v.    Quan    Wo   Chong     406 

1432. 
Leeder  v.   Purdy,  8. 

Leeds  v.  CheetTiam,  617,  765,   861,1192. 
V.  New  Radnor,  1826,  1828. 
V.  Powell,  1S26. 
Leftley  v.   Mills,   1044. 
Legg  V.  Benion,  87. 

V.   Strudwick,   123,  237. 
Legh  V.  Heald,  274. 

V.   Hewitt,    784,   785. 
V.  Lillie,   786,   1053,   1054. 
Le   Gierse  v.   Green,    963,   1127,   1130. 
Lehain  v.  Philpott,  2058. 
Lehigh   Zinc    &   Iron   Co.   v.    Bamford, 

561. 
Lehmaier   v.   Jones,    754,    755,   769,   783 

8S7,  888. 
Lehman  v.  Howze,   1908,   2095. 
V.   McArthur,    933,   960. 
V.   Nolting,   244,    247,    256,   285,   286. 
V.  Stone,  1929. 
Le'hmeyer  v.  Moses,  1216. 
Lehnen  v.   Dickson,  1779,   1782. 
Leick  V.  Tritz,  588,   589. 
Leiferman  v.   Osten,    222,   1263. 
Leigh  V.  Burnett,  1558. 

V.  Dickeson,    407,    408,    1492,    1502, 

1870. 
V.   Shepherd,    2043. 
V.  Taylor,   1565,  1578. 
Leighton   v.    Ricker,    857,   858. 
V.   Theed,    125,   1074,    1075. 
Leindecker   v.    Waldron,    1740,    1741. 
Leininger  v.  Clark  Nat.   Bank,  546. 
Leishman  v.   White,  1290. 
LeitcTi  V.   Boyington,    1065,    1067. 

V.  Owings,  2011. 
Leitensdorfer  v.  Hempstead,  197. 
Leiter  v.  Pike,  281,  868,  887,  902,  1548 

1550. 
Leithman    v.    Vaught,    581. 
Lekeux  v.  Na.sh.  988. 
Leland  v.  Sprague,  1965,  1976. 

V.  Tousey,   145,  146. 
Leman  v.   Best,  1593. 
Lemar  v.  Miles,  1581,  1584,  1613. 
Lemay  v.   Johnson,   1941,  1956. 
Lemon  v.  Wolff,  1974. 


TABLE  OF  CASES. 


2213 


[KEFEEENCES  AKE  TO  PAGES.] 


Lempriere  v.  Lange,  198. 
Lenane   v.   Mayer,    1142. 
Lenderklng  v.  Rosenthal,  394. 
Lendle  v.  Robinson,  636,  638. 
Lengart  Co.  v.  Bellevue  Bldg.  &  Loan 

Ass'n,   2080. 
Lennen  v.  Lennen,   12,   869. 
Lenney  v.   Finley,    359,  1876. 
Lennon   v.   Napper,    1534. 
Lennox  v.  Vandalia  Coal  Co.,  1047. 

V.  Westney,  107. 
Lenow  v.  Fones,  46. 
Lent  V.  Curtis,  1701. 
Lenthall  v.  Thomas,  378. 
Lentzey   v.   Hercholrode,   1748. 
Leominster    Gaslig-ht    Co.    v.    Hillory, 

281,   SS7,   1518,   1550. 
Leonard  v.   Armstrong,   1220,   1226. 

V.  Burgess,   1111. 

V.  Clougli,  273. 

V.   Decker,  794,   795. 

V.  Gunther,   645,   697. 

V.  Hornellsville,  679,  684. 

V.  Kingman,  1859. 

V.   McCool,   1814. 

V.  Neale,  2057. 

V.  Storer,  695,   703. 
Leopold    V.    Godfrey,    1898. 

V.   Judson,    507,    1163,   2076. 
Lepla  V.  Rogers,  94  3. 
Leport  V.  Todd,  16,  18. 
Lepple  V.   Mackey,    887,   1548,   1550. 
Lerch    v.    Sioux    City    Times    Co.,    364, 

365. 
Le  Salg  V.  Dougherty,  2102. 
Leshey  v.   Gardner,  436,   486. 
Lesley  v.  Randolph,  125,  126,  128,  129, 

133,  140. 
Leslie  v.  Hinson,  1924,  1932. 

V.  Pounds,   608,  609,  660. 

V.  Smith,   1692. 
Lesser  v.  Rayner,   1609. 

V.  Stein,   1979,   1980. 
Lester  v.  Hardesty,  992,  994. 

V.  Young,   712,   1261,   1269. 
Le   Taverner's   Case,   1022. 
Lettick   V.   Honnold,    1270,    1200. 
IjRvee  Com'rs  v.  Johnson,  1184. 
T^ever  v.  Koffler,  383,  394. 
I,»^vey  V.  Dyess,  742,  744,  776,  928. 
Levi  V.   Lewis,   1154. 
Levin  v.  Habicht,   642,  644. 
I.evine  v.   Baldwin,    642,   C45. 
Levltzky  v.   Canning.  523,    528,   529. 
Levy  V.  Bend,   52S,   1844. 

V.    Blackmore,    1387. 

V.  Korn,  624. 

V.    Long    Island    Brew.    Co.,     976, 
1129. 


Levy  V.   Sale,  344. 

V.  Winkler,  1795. 
Lewer  v.  McCulloch,  307. 
Lewes  v.  Ridge.  899,  1830. 
Lewin   v.  Barry,   1136. 

V.  Pauli,  629. 

v.  Washington      County       Sup'rs, 
2022. 
Lewis  v.  Adams,  487. 

v.  Angermiller,  1332. 

V.  Arnold,   1966. 

V.  Baker,  48,  140,  871,  909,  914, 
1448,   1989,    1992. 

V.   Brandle,   422,   1737. 

V.  Brooks,  1996. 

V.   Burr,   983. 

V.  Christian,  1666. 

V.  Clark,   296,   342,  562,   587,   1843. 

V.   Effinger,  1694. 

V.    Godson,    711,    737. 

V.  Hughes,  697,  1097,  1202,  1204, 
1380,  1882. 

V.  Jones,  784,  787,  788,  789. 

V.  Lyman,  1630,  1631,  1671,  1976. 

V.  McNatt,  1627,  1634,  1638. 

V.  Ocean  Nav.  Pier  Co.,  1574, 
1586,  1587,  1593,  1603,  1613, 
1623,  3811. 

V.  Payn,  1157,  1286,  2029. 

v.  Pepin,  581. 

V.  Perry,  1530,  1531,  1535. 

V.  Read,  2088. 

V.    Richardson,   966. 

V.  Ringo,  46. 

V.   RitofE,   1238. 

V.  St.  Ijouis.   1411. 

V.  Seabury,  368. 

V.  Sheldon,  919. 

V.  Stafford,  1176,   143R,   1813. 

V.   Stephenson,   1519,   1520. 

V.    Thompson,    2124. 

V.  Willis,   434,   446,  1649. 
Lewis'   Appeal,    1247,   2041,   2042. 
Lewis   Co.,   E.   J.  V.   Metropolitan   Re- 
alty Co.,  642,   644. 
Lewis  &  Co.  V.  Chisholm,   1237,  1240. 
Lewiston  &  A.  R.  Co.  v.  Grand  Trunk 

R.  Co.,  851. 
Lewy    V.    Wolfman,    1811. 
Ley  V.  Peter,  111. 

Leydecker  v.   Brintnall,    633,   665,   795. 
L'Hussier  v.  Zallee,   1737. 
Libbey  v.    Staples,    275. 

V.    Tolford,    575,    583,    745. 
Liichlenthaler      v.      Thompson,      1249, 
1995. 


2214 


TABLE  OF  CASES. 


[BEPEBENCES  ARE  TO  PAGBa. 


Lichtig  V.   Poundt,   627. 

Lichtman   v.    Rose,   635. 

Lickbarrow  v.  Mason,  1114. 

Liddon  v.  Hodnett,  1794. 

Liddy    v.    Kennedy,    70,    72,    74,    1401. 

143S,  1443. 
I.iebe  v.  Nicolai,   1041,   1611. 
I.,ieberthal  v.  Montgomery,   1191,   1197. 
Liebeskind  v.  Moore  Co.,   366,  1061. 
Liebmann's     Sons     Brew.     Co.     v.     De 
Nicolo,   170,   1767. 
V.   Lauter,   1403. 
Lieb.sch>itz  v.   Moore,   88,   909,  1166. 
T.vienow  v.    Ritcliie,    725,   2098,   2115. 
Lierz  v.  Morris,  1277. 

Liford's    Case,    1121,    1276,    1563,    1640. 
Ivlghtbody  V.  Truelsen,  7,   38,  333. 
Lig-htfoot  V.   West,   577,   590,   618,   1198. 
I.ightner  v.   Brannon,   1936,   1953. 
Llleri  V.  Price,   1914. 

Lillard    v.     Kentucky     Distilleries     & 
Warehouse  Co.,  1009. 
V.   Noble,    1948,    2034. 
Lillie  V.  Leigh,   395. 

Lilly     V.     Fifty     associates,     55,     1089 
1397,    1411. 
V.   Hodges,    1834. 
Linahan     v.     Barr,     1567,     1568,     1569, 

1572. 
Linberg   v.    Finks,    467. 
Lincoln     Trust    Co.     v.     Nathan,     863, 

1191    1207. 
Lindblom  v.   Berkman,   825. 
Lindeke     v.     Associates'     Realty     Co., 

1390,    1456. 
Linden  v.   Hepburn,   1393. 
Lindenbower  v.   Bently,    7,    420,    2115. 
Linderking  v.    Rosenthal,    1407. 
l^inderman  v.  Berg,   2136. 
Llndley    v.    Kelley,    1659. 

V.   Miller,    2037,    2081,    2083. 
Lindsay  v.  Robertson,   1529. 

V.   Winona   &    St.   P.   R.    Co.,    1640. 
Lindsey   v.   First  Nat.   Bank,    826,    827. 
V.  Leighton.   629,   633,    634. 
V.  Lindsey,   200. 
I,indsley    v.     Joseph    Schnaide    Brew. 

Co.,   989,   990. 
Linstead     v.     Hamilton     Provident     & 

Loan  Soc,  324. 
I>indstrom    v.    Pennsylvania    Co.,    for 

Ins.    on    Lives    &    Granting    Annui- 
ties,   679,   790. 
Lindt  V.  Linder,   1863,   1889,   1890. 
Llndwall  v.   May,    527,   537,   620. 
Line  v.  Stephenson,  526,   540,   541. 
Link    Belt    Machinery   Co.    v.    Hughes, 

984. 


Linton   v.    Hart,    868,    1065,    1069,    1101, 
1160,    1163,    1275,    1301. 

V.   Imperial  Hotel  Co.,   1996. 
Linwood  Park  v.  Van   Dusen,    35,   800, 

803. 
(dipper    V.     Bouve,     Crawford     &     Co., 

1531. 
i^.ipsett  V.   Perdue,   195. 
Liquid     Carbonic    Acid     Mfg.     Co.     v. 

Lewis,  1927,   1935. 
Lister  V.  I.^ne,   756,   760,  778. 
Litchfield   v.   Ready,    320. 
Lithgow    V.    Moody,    1432. 
Little  V.  Dyer,   298. 

V.  Heaton,  1402. 

V.   Mac  Adaras,  609. 

V.  Martin,   1SG4. 

V.  Pallister,  2099. 

V.  Pearson,  308,  1865. 

V.    Schuylkill    Nav.    Co.    v.    Rich- 
ards, 696. 

V.    Wirth,    636. 
Little     Falls     Water    Power     Coi,     v. 

Hausdorf,  1591. 
Littlefleld  v.  Getchell,   904. 
Little  Rock  Granite  Co.  v.  Shall,  1397. 
Littleton  V.   Clayton,   503. 

v.  Pernes,   1083. 

V.  Winn,   168. 
Livermore  v.   Eddy's  Adm'r,   1335. 
Livingston  v.    Parish,    1952. 

v.  L'lOngle,   1158,   1844. 

v.    Livingston,   1827,    1828. 

V.   Miller,    1062,    1093,   1093,   1850. 

V.    Reynolds.    706. 

V.  Sage,  1544. 

V.   Stickles,    921,    924. 

V.   Sulzer,    1700. 

V.   Tanner,    151,    155,    1434,    1506. 
Living.5ton    County    Tel.    Co.   v.    Herz- 

berg,   934. 
Llewellyn   v.    Jersey,    268. 

v.  Rous,   1076. 
Lloyd,   Ex  parte,   1593. 
Lloyd  V.  Cozens,   909.   910. 

V.  Crispe,   932,   960. 

V.   Hongh,   1858. 

V.  Richman,  1787. 

V.  Rosbee,   149R. 

V.  Tomkies,   528,  535. 

V.  Worrell,   1521. 
Lloyde  v.   Gregory,   1326. 
Loach  v.  Farnum,   1057,   Ht58. 
Loague  v.  Memphis.  1887. 
Lobdell   v.   Mason,   286. 
Lock   v.    Fnr:5e.    542,    548. 
Locke  V.  Coleman,   1419. 


TABLE  OF  CASES. 


2215 


[RBJFBBKNCES  AKE  TO  PAGES.] 

Locke  V.  FYaslier,   314.  471,  473. 
V.   Kennedy,   1841. 
V.   Matthews,   111,   112. 
Lockett    V.    Fort    Worth    &    R.    G.    R. 

Co.,  2125. 
T.ockhart  v.   Ward,   419. 
I>ockier    v.    Paterson,    2076. 
Ivockrow  V.  Horgan,  750,  757,  758,  770, 

1215. 
Lockwood  V.  Lock-wood,    128,   139,   244, 
248,     1171,     1235,     1333,     1824, 
1856,    1883. 
V.   Thunder   Bay  River   Boom   Co., 

1859,     1860. 
V.   Tracy,   412,    413,   414. 
V.   Walker,    487. 
Loddiges   v.    Lister,   70. 
IvOdge  V.   Martin,  495,  1181. 
Loeb  V.  Barris,  357. 
Looser  v.  Liebman,   1612. 
Lofft  V.   Dennis,   617,   1192. 
Lofsky  V.  Maujer,  1081. 
IvOgan    V.    Anderson,    1345. 
V.   Barr,   953,   954,    1314. 
V.   Green.  89,   90,   871,  872,  1102. 
V.  Hall,   SCI.   1386. 
V.  Herron,   1419. 

V.  Woolwine,      1734,      1737,      1778, 
1779. 
IjOggins  V.   Buck,   1244. 
Ix)niax  V.  Le  Grand,   1939,  1949. 
London  v.  Greyme,  708,   717. 
V.   Hcdger,   726. 
V.   Mitford,    1532,    1533. 
V.   Nash,    394,   772. 
V.  Pugh,   1054. 
V.   Riggs,   1106. 
V.  Warfield,   715. 
London   C.   &   D.    R.    C9.    v.    Bull,    811, 

812. 
London    &    N.    W.    R.    Co.    v.    Buck- 
master,  26,  34. 
V.  Garnett,  807. 
V.  West,  512. 
London     &    San     Francisco    Bank     v. 

Curtis,  134. 
London   &  South  African  Exploration 
Co.  V.  De  Beers  Consol.  Mines,  1610. 
London  &   S.  W.   R.   W.  Co.   v.   Gomm, 

1523. 
London    &   Westminster  Loan   &   Dis- 
count     Co.      V      Drake,      1350, 
1589,    1622. 
V.  London    &   N.    "W.   R,    Co.,    1040, 
1041,    1042,    2046. 

Long  V    Bonner,  1S55. 


Long  V.  Buchanan,   22. 
V.  Clarke,  2054,  2055. 
V.   Douglass,  441,   775. 
V.     Fitzimnions,     745,     1047,     1656, 

1824. 
V.   Gieriet,   588,    605,   606,   1237. 
V.  Poth,  285,   287. 
V.   Stafford,   1526,   1530,  1531. 
Long     Bell     Lumber     Co.     v.     Martin, 

1S64. 
I>ong    Bros.    v.    Bolen    Coal    Co.,    1441, 

1458. 
Longee    v.   Cotton,    1995. 
Longfellow    v.    Longfellow,    171,    437, 

440,    501,    502,    503,    1492. 
Longhi   V.  'Sanson,   1367. 
Longobardi   v.   Tuliano,   1813,   1980. 
Longstreth   v.  Pennock,   1248,   1900. 
Longwell   v.    Ridinger,   2040,    2041. 
Longworth's  I.^?see  v.  Wolflnger,  501. 
Loomls   V.   Lincoln.   1898. 
V.   O'Nf-nl,   1651. 
V.   Wilbur,   715. 
Looney  v.  McLean,  632,  637,  665. 
Lord  V.   Brown.    2089. 
V.   Carnes,    1831. 
V.  Ferguson,   976. 
V.   Hnufe,    366. 
V.   Walker,   70. 
Lore  V.  Plerson,  1871,  1884. 
Tx>renzo  v.   Derry,  1707. 
Lorlng  V.  Bartlett.  324. 

V.   Harmon,    460,    471,   480,   483. 
V.   Taylor,   1S60. 
V.  Wnrburton.    2030.   2079. 
Losch  V.  Pickett,  1371,  1404,  1512. 
Loth  V.   Carty,   1932,   1939,   ]9.'->6. 
T.othrop   V.   Thayer,    741,   742,    743. 
Lotta  V.  Pierce,  1118. 
Loufer  v.  Stottlemeyer,  547. 
IjOiigher  V.  William.s,  901. 
Lo'iprhlin  v.   Carey,   753. 
Loughran    v.    Ross,    1586,    1587,    1588, 

1593. 
Louisville  Bank  v.  Baumeister,  1675. 
Louisville  Gunning  System  v.  Knigh- 
ton, 949. 
V.   Parks,  948. 
Louisville  &  N.  R.  Co.  v.  Moore,  2109. 
Louisville     &     N.     Terminal     Co.      v. 

Jacobs,    675,   677. 
Lounsberry   v.   Snyder,   245,  1260. 
Loupe  V.  Wood,  559. 
Lourman  v.  West,   1791. 
Loux  V.  Fox,   1081. 
Love  V.  Dennis,   178,  489. 
V.   Edmonston,  114,  306. 


2216 


TABLE  OF  CASES. 


[HEFEF.ENCES  AHE  TO  PAGES.] 


I.ove  V.   Howard,    846. 

V.   Law,   501,  1483,  1489,   1903. 

V.   Pares,   360. 

V.  atate,  1950. 

V.   Teter,    294. 

V.  Waltz,    1851. 
Ixjvejoy   V.    McCarty,    1334,    1345. 

V.   Townsend,    585. 
Lovelace    v.    Reynolds,    1019. 
Lovering  v.   Lovering,    518. 
Lovett  V.   United  States,   758,  799. 
Lovitt  V.  Creekmore,    565,   654. 
Low  V.  Elwell,   1505,   1506,   1508,   1509. 

V.  Hallett,  1855. 

V.  Innes,   772. 

V.  Thompson,    1370. 
Lowe  V.   Adams,    1419. 

V.  Brown,    1051,    1052. 

V.  Emerson,    506. 

V.  Griffiths,   199. 

V.  Miller,   1651. 

V.   Ross,    1882. 
Lowell  V.  Spaulding,  661,  679,  687,  700, 
790. 

V.   Strahan,    25,    28,    272,    927. 
Lowndes    v.   Fountain,    786. 
Lowrey  v.  Reef,   400. 
Lows   V.   Telford,    1513. 
Lowther  v.   Heaver,   373. 
Loyd  V.   Capps,   1291. 

V.  Langford,  1318. 
Lubetkin    v.    Elias    Brew.    Co.,    1469, 

1479. 
Lucas  V.   Brooks,  471,  472,  1463. 

V.  Comerford,   972. 

V.  Coulter,  556. 

V.  McCann,    848. 

V.  Rideout,   85. 

V.   Sunbury  &  E.  R.  Co.,   866. 

V.  Tarleton,   2084,    2087. 
Luce  V.  Moorehead,   1933. 
Lucente  v.  Davis,  829. 
Luchs  V.  Jones,    329. 
Lucier  v.  Marsales,  414,  416,  1860. 
Lucius  Hart  Mfg.  Co.,  In  re,  981. 
Lucker.bill,  In  re,  3C5,  1627. 
Luckey  v.  Frantzkee,  1302. 
Lucy  V.  Levington,  354,  901. 

v.  Watkins,  1333. 

v.  Wilkins,  1336,  1337,  1838. 
Ludden  v.  Stern,  1147. 
Ludford  v.  Barber,  430,  1079,  1122. 
Ludington  v.  Garlock.  135,  1454. 

v.  Seaton,  1286,  1290. 
Ludlow  v.  McCarthy,  1844. 
Ludwell  V.  Newman,  524,  542,  545. 
Ludwig  V.  Lazarus,  1799. 


Lufkin  V.  Zane,  675,  677,  684,  696,  698. 

Luger  V.  Goerke,  147G. 

Luhrs  V.  Commoss,  1796. 

Lukens  v.  Nicholson,  867,  1274. 

Tvuker  v.  Dennis,  809. 

Lumbers     v.     Gold    Medal     Furniture 

Mfg.  Co.,  80.  84. 
Lumbley  v.  Gilruth,   1913. 
Lumley  v.  Backus  Mfg.  Co.,  636. 

v.   Metropolitan   R.   Co.,    802. 
Lumpkin.  In  re,   1943. 
Lund  V.  Ozanne,  1377,  1443. 
Lundin  v.  Schoeffel,   775,   1410,   1412. 
Lunn  V.  Gage,  588,  6D3,  1843. 
Lunsford   v.   Alexander,   486,    488,   490, 
918. 

V.  Turner,  507,  1299. 
Lush  V.  Druse,   268,   1094,   1095. 
Luther  v.  Arnold,  407. 
lAitterel  v.  Western,  125. 
Luttrell  v.  Caruthers,  183. 

V.   Knox  County,   841. 
Lutwich  V.  Mitton,  291. 
Lutz  V.  Wain  Wright,   1743. 
Luxmore  v.  Robson,  767. 
Lyddall  V.  Dunlapp,  978. 
Lyde  v.  Russell,   1578,   1583. 
Lydecker  v.  Brintnall,  634. 
Lyebrook  v.  Hall,  16,  152,  463. 
Lyford  v.  Toothaker,  2115. 
Lykes  v.    Schwarz,    1499. 
Lyle  V.  Richards,  267. 
Lyles  V.  Murphy,  441. 
Lyman  v.  Mower,  1121. 

V.  Snarr,  1231. 
Lynch,  In  re,  981. 
Lynch  v.  Baldwin,  1271,  2337. 

V.  Bechtel,  601. 

V.  Bickle,   2063,  2084. 

V.  Hunneke,  817. 
,     V.  Onondaga  Salt  Co.,  1046. 

V.  Ortlieb,  608,  GD9. 

V.  Sauer,  29f5,  299,  534,  745,  1234. 

V.  Swan.  633,  634,  669. 
Lynde  v.  Brown,  840. 

V.  Hough,   922,   936. 

V.  Noble,  1717. 

V.  Rowe,  1620. 
Lynn  v.  Waldron,  1596. 
Lynne  v.  Moody,  2083. 
Lynn's  Appeal,  709,  720. 
Lyon  V.  Buerman,  560,  575.  576. 

V.  Cunningham,  128,  153,  307,  380, 
3S2.   1727,  1S64,  1866,  1867. 

V.  Greenhow,  755. 

V.  Houk,   2029. 

V.  Odell,  1080,   1173,   1849. 


TABLE  OF  CASES. 


2217 


[EEFERENCES  AKE  TO  TAUES.] 


Lyon  V.   Reed,   1322,   1323,   1325,  1343. 
V.  Tomkies,  2067. 
V.    Washburn,    178,    440,    472,    480, 

483,  504,  1298. 
V.  "Weldon,   2063,   2067. 
Lyons  V.  Deppen,  193.5. 

V.    Elliott,    2005,    2007,    2009,   2011. 
V.  Galvln,  583. 
V.   Osborn,    1527,   1538. 
V.   Philadelphia  &  R.    R.   Co.,   126, 
127,    1673. 
Lyttletcn  Times  Co.  v.  Warners  Lim- 
ited,   832. 


M. 


Maas  V.  Kramer,  541. 

Mabry  v.  Harp,  948,  949. 

McAdoo    V.    Galium,    1517,    1519,    1520 

1541. 
McAlester    v.    Landers,    508,    534,    o41, 

1147,  1296,  1844,  1846. 
McAllister  v.  Reel,  1696. 
McAlpin  V.  Powell,  638. 

V.    Woodruff,    539,    540. 
McAnaw  v.  TifTin.  200. 
McAnniry  v.  Miller,  1043. 
Macartnev  v.   Blundell,   353. 
McAulif£e  v.  Mann,  1569. 
McBee  v.   Sampson,  900,  918,  988,  1126. 
McBirde  v.   Daniels,  786. 

V.  Puckett,  1658,    1943. 
McBrier  v.   Mar.shall,   1535. 
McBurney  v.  Mclntyre,  948. 
McCabe  v.  Castens,  633. 

V.  Evers,    1474. 
McCaffrey.  In  re,  206. 
McCaffrey  v.  Woodin,   1976,  1971. 
McCain  v.  Majestic  Bldg.  Co.,  650. 
McCall  V.  Peachy,  215. 
McCallum  v.  Snyder,  51. 
McCalmont  v.   Peters,   1802. 
McCardell   v.    Miller,   1097,    1098.   1181, 
1183,    1188,    1881. 

V.  Williams,  178,  279,  283,  865,  887, 
1240. 
McCarger  v.  Rood,  388,  393. 
McCarthy  v.  Brown,  114. 

V.  Foster,   637,  670. 

V.  Humphrey,   857. 

V.  Trumacher,   1597,   16D5. 

V.    York    County    Sav.    Bank,    645 
646,  697. 


McCartney  v.  Auer,  1356. 
McCarty  v.   Ely,  299. 
V.  Hudson,  1158. 
V.  Roswald,  19ti2,  1964. 
McCaskill  V.  Rodd,  2078. 
McCauley  v.  Coe,  16S2. 

V.  Hazlewood,   1718. 
?,TeCay   v.   Mumford,   1503. 
McClain  v.  Abahire,  49,  1970,   1971. 

V.  Ma'ione,  286. 
McClaren  v.   Citizens'   Oil  &  Gas  Co., 

909. 
McClary  v.  Jackson,  888,  893,  1703. 

V.  Turner,  1630. 
McCIay  v.  Benedict,   2136. 
McCieland  v.  Doe,  2135. 
McClelland  v.  Rush,  1515,  1530. 

V.  Wiggiiis,  1745. 
McClenahan  y.    Gwynn,   965,   998. 

V.  New  York,   1236. 
McClendon     v.     Equitable     Mortgage 

Co.,  2136. 
McCleran  v.  Benton,  106. 
McClintock  v.  Joyner,  1532,  1533,  1548, 
1552. 
V.  Loveless,  76. 
McCloskey  v.   Miller,   1857. 
McCloud  V.   Jag-gers,  1764. 
McClowry    v.    Croghan's    Adm'r,    522, 

551,  1552. 
McClung    V.     McPherson,     73,     76,     81, 

1439,  1448,  1491. 
^.IcClure  V.  Little,  602,   603,   1239. 
V.  McCluro,  198. 
V.   Thorp,   1652,   1664. 
McClurg  V.  Price,  1151,  1152,  1268. 
McColg-an  v.  Katz,  357. 
McCollum   V.   Broughton,   1137. 

V.  Wood,  1946. 
McCombs  V.  Becker,  1965,  1966. 

V.    Wallace,    309,    320.    1628,    1727, 
1729,   1730. 
McComb's    &    Howden's   Appeal,    1253, 

1251,  2005. 
McConnel    v.    Kibbe,    272,    2097,    2105, 

2122. 
MrConnell,  In  re,  1900. 
McConnell  v.  Bowdry,  471. 

V.  East  Point  Land  Co.,  948,  1134. 
V.  Lemley,  654. 
V.  Pierce,  1385. 
McCord    V.    Oakland    Quicksilver  Mln. 

Co.,   709. 
McCord  Rubber  Co.  v.  St.  Joseph  Wa- 
ter Co.,   790. 
McCormick,   In  re,  1767. 
McCormick  v.  Connell,  1378,  1379. 


2218 


TABLE  OF  CASES. 


[REFERENCES 

McCormick  v.  Millburn     &     Stoddard 
Co.,    526. 

V.  Stephany,  1677,   1678,  1688. 

V.  Stowell,   937. 

V.  Young.  1128. 
McOotter  v.   Flynn,   1810. 
McCoull  V.   Horzberg,   298. 
McCourt  V.    Singers-Bigger,    1558. 
McCoy  V.  Bateman,  1828. 

V.  Hill,    1243. 

V.  Hyde,  1816. 

V.  McMurtrie,  1828. 

V.  Oldliam,  587,   604,   608,   1843. 
McCracken  v.  Hall,  1578,  1592,  1598. 
McCray  v.  Samuel,  2045. 
McCrea  v.  Marsh,   22. 
McCready    v.    Lindenborn,    1174,    1177, 

1178,   1245. 
McCreery  v.  Clafflin,   20)7,   2008. 
McCrilli.s  v.    Benoit,   314. 
McCroskey    v.    Hamilton,    1392,    1403, 

1439. 
McCroy  v.  Toney,   231,   235. 
McCulloch  V.  Ayer,   673. 

v.   Dobson,   602,   1846. 
McCullough    V.   Cox,   1237. 

V.  Irvine's  IQx'rs,  713,  716. 
McCullum  V.  Hutchison,  696. 
McCiirdy  v.  Smith,  436. 

V.  Wyckoff,  1227,  1280,  1281. 
McCutchen  V.  Crenshaw,  167,  185,   18S, 
1649. 

V.  McCutchen,  15. 
McDaid  V.  Call,  409. 
McDaniel  v.  Callan,   76,  79,  713. 
McDermott    v.    Burke,    417,    419,    426, 
877. 

V.  Mcllwain,  1793. 
McDevitt  V.  Lambert,  1429,  1486,  1745. 

V.    Sullivan,   1828. 
McDole  V.  McDole,  1852. 
McDonald  v.  Fiss,  1559. 

V.  Hanlon,   872,   875,  1102,  1737. 

V.  May,  99. 

V.  Starkey,  8)4. 

V.  Tree,  302. 
McDonald's   Adm'r   v.   Morrison,    1939. 
McDonnell  v.   Cambridge  R.  Co.,  2109. 
McDonough  v.  Oilman,    791. 
Macdonough    v.    Starbird,    139. 
McDougal  V.   Sanders,  1958,   2032. 
MoDougall      V.      Campbellton      Water 
Supply    Co.,     2128. 

V.  Bidout,  869. 
McDowell   V.  Hendrix,  415,  1232. 

V.    Hymau,    36.    167,    519,    522,    531, 
532. 

V.   Shotwell,   2023. 


ARE  TO  PAGES.] 

McDowell  V.  Simpson,  245,  287. 
McEacharn  v.   Coltoii,   9;;6,    937,   94  1. 
AlcElderry      v.       Flannagan's      Adni  r, 

2010. 
McElroy   v.  Dice,   2)36,    2089,   2090. 

V.  Railroad,  170. 
McElroy'a     Estate     v.     Brooke,     1172, 

1341. 
McElvaney  v.   Smith,   1295. 
McEowen    v.    Drake,     130.    1422,    1427. 
McEvoy  V.  Niece,  1913,  1948,   2074. 
McEwen   v.    Dillon,   606. 

V.  Joy,  1820. 
McFadden  v.  Allen,  1618,  1619,  1620. 

V.  McCann,   1532,  1547. 
McFadin  \.  Rippey,  1200,  1261,  1893. 
McFall  V.   McFall,  139,  140. 
McFarlan  v.   Wats.m,  1001,  1857,   1877. 
McFarland  v.  Chase,  116,  1746. 

V.  Helm,  976. 

V.  Owens,   544,  547. 
McFarland  Real  Estate  Co.  v.  Joseph 

Gerardi  Hotel  Co.,  418,   1789. 
McFarlane  v.    Buchanan,    1871. 

V.    Foley,   15G6. 

V.  Kirby,   439,  490. 

V.  Pierson,  1237. 

V.  William.s,  104,  348,  378,  394,855, 
1035,   1040,   1046. 
McGan  v.  Marshall,   197. 
McGarvey  v.  Puckett,  1754. 
PvIfGaunten   v.   Wilbur,   1982. 
]\IcGreary  v.    Raymond,   2052. 
McGee  V.   Fes-sler.  1744,  1806. 

V.  Fitzer,  1660,  1661,  1662,  1973. 

V.   Gibson,- 7,   69.   118,    333,   1425. 
McGillick    V.    McAllister,    1122,     1048, 

19S8,    2041. 
McGinley  v.    Alliance    Trust    Co.,    629, 

633.   665,   666. 
McGinn  v.  French,   594,  638,  664. 
McGinnis   v.    Genss,   1431,  1453. 

V.  Porter,  15,  17. 

V.  Vernon,  1796. 
McGlashan  v.  Tallmadge,  558. 
McGlauflin   v.  Holman,  279. 
McGlynn  v.  Crock,  1154,  1171. 

V.  Moore,   1039,   1379,  1399. 
McGowen  v.  Sennett,  1452. 
McGrath  v.  Boston,  377. 

V.  Walker,  687. 
McGregor  v.  Board  of  Education,  778, 
782,    1349,    1540. 

V.  Brown,  706.  708,  728. 

V.  Defoe,    2059. 

V.  Rawle.  124,   1419,    1529,   1543. 
McGuflie  V.  Carter,  494,  1733,  1735. 


TABLE  OF  CASES, 


2219 


[BEFEKENCES  ARE  TO   PAGES.] 

McGulre  v.  Cook,  1795. 

V.  Ulrich,   1449. 
McGunnagle   v.   Thornton,    1883. 
McHan   v.   Stunsell.   307. 
Machel  v.  Dunton,  901. 
Machen   v.   Hooper,   720,   744,    758,   759 

779. 
McHenry  v.  Car.son,  994,  995,  996. 

V.  Marr,  609,   614. 
Macher    v.    Foundling    Hospital,    946, 

1410. 
Mcllvaine  v.  Wood.   687. 
Mclntlre,   In   re,   1911. 
Mcintosh  V.  Hodges,  246,  247,  248,  254. 
Vi  Lee,   288. 

V.   Lown,    952.    959,    964. 
V.   St.    Philip's  Church,   1538,   1699. 
Mclntyre  v.   Clark,   98,    399. 

V.   Mclntyre  Coal   Co..  1047. 
Mclver  v.   Kstahrook,  1586,   1594,  1600. 
Mack  V.   Burt,    51.    1490. 
V.    Dailey,    1678,    1680. 
V.   Patchin,      507,      519,      521,      539, 
1532. 
Mackay    v.    Mackreth,    139,    402,    1989 
McKay   v.    Munnford,    407,    1502. 
McKean   v.    Smoyer,    1648. 
McKee   v.   Angelrodt,   976,   1129. 

V.   St.    Louis    K.    &   N.    W.    R.    Co.. 

2124,    2126. 
V.   Sims,     1955,     2036,     2049,     2081, 
20S3. 
McKeeby    v.    Webster,    1647. 
McKelway   v.  Cook,   833. 
McKenna   v.   Rowlett,   588. 
McKensIe   v.   Farrell,   1136,    1140. 
Mackenzie,   In   re,   1253,   1254. 
McKenzie   v.   Cheetham,   556,   650,    651. 
V.  Harrison,    382,   1057,   1058,   1059. 
V.  Hatton,     576,     741,     1301,     1303, 

1804. 
V.  Lexington,      422,      1314,      1320, 

1351,    1493. 
V.  Roper,    1988. 
V.   Sykes,   167,    184,    1648. 
McKeon    v.   Cutter,  559,   582,   645. 
V.   King,    1733. 

V.   Wendelken,    854,    963,    987,    994. 
V.   Whitney,   968,    1126,    1174,    1820, 
1822. 
McKesson    v.    Mendenhall,    1121,    1836, 

1844. 
Mackey  v.  Mackey,  132,    1417. 

V.   Robinson,       1122,      1493,      1821, 
1858. 
McKie   V.  Anderson,    407,    467. 


McKildoe  v.  Darracott,   364,   945,  1387, 

1395,    1400. 
Mackin   v.   Blythe,   2014,    2086. 

V.   Haven,    4-iO,    473,    481,    502.    874. 
McKinncy    v.    Browning,    1284,    2081. 
V.   Hartman,    1795. 
V.   Holt,    1150. 
V.   Peck,    133,   1479,    1488. 
V.   Reader,      12,     954,      1273,      1315, 
1333,    2059,    2063,    2083,    2085. 
McKinnis       v.       Scottish       American 

Mortg.  Co.,    457. 
McKinnon  v.  McDonald,  113. 
Mackintosh     v.     Trotter,     1582,     1586, 

1623. 
McKirclier  v.   Hawley,   410,   2044. 
McKissick    v.    Ashby,    501,    1419,    1746. 
V.   Bullington,    309,    1009. 
V.   Pickle,    1383. 
McKleroy  v.  Cantey,   1916,  1917,   1922, 

1931,   1932,   1956. 
Macklin  v.   McNetton,    1493. 
McKnight   v.    Kreutz,    1365. 
Mackubin    v.     Whetcroft,     1157,    1174, 

1377. 
McLain  v.  Calkins,   1748. 

V.   Nurnberg,      1750,      1762,      1766, 
1804,   1807. 
McLain     Inv.      Co.     v.      Cunningham, 

1567. 
McLarren   v.    Spalding,    1304. 
McLaughlin  v.  Bohm,  1280. 
V.    Kennedy,   189,    1319. 
V.   Long,    914. 
V.   Riggs,    2034. 
V.   Salley,    1652,    1665. 
McLean  v.  Caldwell,   975,    993,    1131. 
V.  Carroll,    1814. 
V.   Currie,    571. 
V.   Fiske     Wharf     &     Warehouse 

Co.,   663. 
V.   Klein,  1968,  1975. 
V.  McCormick,    408. 
V.   Nicol,  364,  365. 
V.   Rockey,  907. 

V.   Spratt,     439,     902,     1379,     1447, 
1760,  1763. 
McLellan     v.      Whitney,      1627,      1631, 

1966. 
McLendon  v.  Pass,  1851. 
McLennan  v.  Grant,  267,   487,   958. 

V.   Royal   Ins.  Co.,   531. 
McLeod  V.   Dial,  713. 
McLeran     v.     Benton,     117,     151,     152, 

1432. 
McLott  V.   Savery,    1837. 
McLoughlln  v.  Craig,  1148. 


2220 


TABLE  OF  CASES. 


[KEFEKENCES  ARE  TO  PAGES.] 


McMahan  v.  Jacoway,  91. 
McMahon   v.    Howe,    1752,   1759. 

V.   Tyson,    2037,    2uG;). 
McMann    v.    Bloomer,    1473. 
McManus    v.    Fair    Shoe    &    Clothing 

Co.,   b44. 
McMath     V.     Levy,     1567,     1573,     1580, 

1621. 
McMillan  v.    Bull's   Head   Bank,    1837. 
V.   Solomon,     97,      222,     269,     1196, 
1288. 
McMullen    v.   Moffit,    576,    1232. 

V.   Riley,   252. 
McMullin  V.  Erwin,  15. 
V.  McCreary,    1717. 
McMurphy    v.    Minot,    976,    978,    1128, 

1129,    1823,    1850. 
McMurray  v.   Spicer,    385. 
McMurtry   V.    Adams,    1734. 
McNair  v.  Ames,    14.    97,    272,   837. 

V.   Schwartz,    308,    1867. 
McNairy  v.    Hicks,   535,   1301. 
McNally   v.    Connolly,    737,   1570,   1584, 

1624. 
McNatt    V.    Grange    Ilall    Ass'n,    1479, 

17S5. 
McNeal    V.    Rider,    1967,    1973. 
McNeely  v.  Hart,  1660. 
McNeil  V.   Av.ies,   907. 

V.   Kerdall,   918,    958. 
McNichol  V.   Malcolm,    642,    645. 
McNichols  V.  Hopkins,  1938. 
McNulty  V.  Duffy,  1179. 
McParthand  v.   Thomas,  791. 
Mcpherson    v.    Atlantic    &   P.    R.    Co., 
843. 
V.   Norris,    1529. 
McPhillips    V.    Fitzgerald,    2128,    2129. 
McQuade    v.    Emmons,    334,    335,    337, 

1726,  1S06. 
McQueen    v.    Chouteau's    Heirs,    1701. 
McQuesney  v.   Hiester,   1063,  1849. 
McQuesten  v.  Morg-an,   137S,   1379. 
McQuigg  V.   Morton,   116G. 
McRae  V.  McMinn,  805. 
McRea    v.    Central    Nat.    Bank,    1563, 

1566,  1566. 
McRovie   V.    White,   1972. 
McSloy  V.   Ryan,   1765,    1766,  1811. 
Mactier   v.   Osborn,    1411,    1412. 
McVickar      Gaillard     Realty     Co.      v. 

Garth,    847,    848. 
McVicker   v.   Dennison,    1699,   1842. 
McWhortcr  v.  Stein,   449,   486. 
McWilliams   v.   King,   1810,   1816. 
Macy  V.  Metropolitan  El.  R.  Co.,  2117. 
Maddison  v.  Alderson,  387. 


Maddon  v.  White,   139. 
Maddox   V.   Maddo.x,    1932. 

V.  White,   805.  812. 
Mades  V.  Howaldt,  240. 
Madigan    v.    McCarthy,    1562,    1569. 
Madox   V.  Humphries,    529. 
wiaeder  v.    Carondolet,   520,    522,    1275. 
Maelzer  v.    Swan,   1929. 
Maenner  v.  Carroll,   676. 
Magaw  V.  Lambert,  1192,   1287,   1288. 
Magdalen  Hospital  v.   Knotts,   106. 
I\'f>.goe   V.   Gilmour,  251. 

V.  Lavell,  268,    3S5.   931. 
Magennis   v.    MacCullogh,   1315. 
Mageon    v.    Alkire,    1387,    1736. 
Maggort  V.  Hansbarger,  740,   742,   776. 
Magill  V.  Hinsdale,    414. 

V.  Holston,   1654. 
Maginnis    v.    Knickerbocker    Ice    Co., 
1414. 

Magrane  v.  Archbold,    213. 
Magrath  v.   Todd,  989. 

Magruder  v.  Peter,   216. 

jviaguire   v.   Post,    2087. 

:.iahan  v.   Sewell,    1768. 

Mahana   v.    Blunt,    261. 

Maher  v.  James  Hanley  Brewing  Co., 
105,   1736. 

Mahler,   In  re,   981,   1189. 

Pilahon  V.  Burns,  637. 

V.   City   of  Columbus,    72. 

Mahoney  v.  Broadway  Brew.  &  Malt- 
ing Co.,   1263,    1286,   1741. 
V.  Farley,  29. 

Tilaidstone  v.  Stevens,   1388,  1389. 

Main  v.  Cooper,  1783. 
V.  F3athers,  1823. 
v.  Green,  1385,  1405,   1406. 

Maine  v.  Cumston,   348,   350. 

Mains  v.  Henkle,  966. 

Maitland   v.   Wilcox,    1882. 

Majestic  Hotel  Co.   v.   Eyre,    1230. 

Majors  v.    Goodrich,   281,    2085. 

Makin  v.    Watkinson,   586. 

Malcom:;on  v.   Wappoo  Mills,   1248. 

Maldon's  Case,   373. 

Malick  V.  Kellogg,  360,  605. 

Mallam  v.   Arden,   1042,    2046. 

Mallotte    V.   Hillyard,    1159. 

Malley  v.   Thalheimer,    812. 

Malloy    V.     New    York    Real     Estate 
Af:s'n,  643. 

Malone  v.  Laskey,   654,  665. 

Maloney  v.  Brady,  613. 

Malpas  V.  Ackland,  213. 

Manasses  v.   Dent,    1929,   1930,   1933. 


TABLE  OF  CASES. 


2221 


[REFERKNCES 

Manby  v.   Lons,    2052. 
Manchester  v.   Doddridge,  115. 
Manchester    Bonded    Warehouse     Co. 
V.   Carr,    586,   720,    758,   759,   763,   809, 
1892. 
Manchester    Brewery   Co.    v.    Coombs, 

374,   889,    895.   968. 
Manchester     Home      Bldg.     &      Loan 

Ass'n  V.   Porter,   2088,  2090. 
Manchester  S.   &  L.  R.   Co.   v.   Ander- 
son, 527,   531,  538,   1269. 
Mancuso  v.  Kansas  City,  680,  687,  79  4. 
Manderbach      v.      Bethany      Orphans' 

Home,  1020. 
Manette  v.   Simpson,   1829, 
Maney  v.  Lamphere,  1291. 
Mangum  v.  Stadel,  1930. 
Manhattan    Life    Ins.    Co.    v.    Gosford, 

71,    73,   75,    1752. 
Manhattan    Trust    Co.    v.    Sioux    City 

&  N.  R.  Co.,  1939. 
Manheim  v.  Seitz,   1475. 
Manice  v.  Brady,   1053. 

V.   Millen,  855,   1388,  1398. 
Manisault   v.  Carroll,    1709. 
Mania  v.  Flood.  1923,   1993. 
Manley  v.  Dupuy,   1130,   2058. 

V.  Pearson,  785. 
Manly  v.  Clemens,  1474,  1477. 
Mann  v.   Fuller,    609,   610,    1846. 
V.  Lovejoy,  1991. 
V.  Nunn,  583. 
V.  Taylor,    1649. 
Manning    v.    Brown,    152,    1505,    150S 
1510. 
V.  Dever,  1482. 
V.  Ferrier,  1180. 
V.   Fitzgerald,   268. 
V.  Frazier,  33. 
V.  Lunn,   1097,   2030. 
V.  West,  391. 
Mansel   v.   Norton,   891,   1703. 
Mantle  v,  Wellington,  405. 
Mantz  V.  Goring,  756,  779. 
Manuel  v.  Reath,  1988. 
Manville  v.  Gay,  1302. 
Man  waring  v.  .Tenison,  1563,   1582. 
Manwell  v.  Manwell,  1G59. 
Maples   V.  Millon,  1574,  1629. 
Maran  v.  Maran,  1776. 
Marchand  v.  Haber,   1510. 
Marcum  v.  Hereford,  1830. 
Marden  v.  Jordan,  11,  321. 
Margolius  v.  Muldberg,  627. 
Mariner  v.   Burton,  308,  1866. 
V.   Chamberlain,  1297. 
V.  Crocker,  984. 


ARK  TO  PAGES.] 

Mariners'  Bank  v.  Abbott,  1137. 
Marinette    Iron    Works    Co.    v.    Cody, 

1623. 
Marix  V.  Stevens,   1154,  1840. 
Marker  v.   Ken  rick,   726. 
V.  Mitchell,  671,  072. 
Market  Co.  v.  Lutz,  334. 
Markey  v.   Coote,  ISCS. 
Markham   v.    David    Stevenson   Brew- 
Co.,    10,    587,    757,    769,    1216, 
1288,   1305. 
V.  Howell,  729. 
V.  Paget,  520,   526. 
Markin  v.  Whitaker,  1734. 
Markowitz    v.    Greenwald    Theatrical 

Circuit  Co.,   27,   38,  949. 
Marks   v.   Chapman,    779,    1239. 

V.  Dellaglio,  1227,  1263,  1280,  1281. 
V.  Garside,  22,  408. 
V.  Ryan,  lo69,  1593,  1622. 
Marlatt  v.  Marlatt,  1886,  1887. 
Marlborough  v.  Osborn,   1016. 
Marie  v.  Flake,  1107. 
Marley  v.  Wheelwright,  586,  630,   660, 

663. 
JMailowe  V.  Rogers,   1664. 
Marinet  Co.  v.  Archibald,  69,   1421. 
Marquam    v.    Sengfelder,     1967,    1968, 

1971. 
Marquess    v.    Ladd,    1939,    1971,    1973, 

1975. 
Marouette  H.  &  O.  R.   Co.  v.  Harlow. 

1859. 
Marquisseo  v.  Ormston,   2047,   2086. 
Marr  v.  Gilliam,  30G. 

V.    Ray,    244,    250,    255,    1988,    1990, 
1998. 
Marrin  v.  Graver,  549. 
Marrs  v.  Lumpkin.  1919,  1931. 
Marsalis   v.    Pitman,    1906,    1931,    1957. 
Marsan  v.  French,  678. 
Marseilles  v.   Kerr,   1171,   1339. 
Marsh   v.   Brace,   960,   1123,   1821,  1822. 
V.   Bridgeport,    1245. 
V.  Bristol,  808,  1376,  1404,  1510. 
V.   Butterworth,  1298,  1299. 
V.  Curteys,  1387. 
V.  Estcourt,  332. 
V.  McNider,  828. 
V.  Mastcr.son,  64,  1806. 
V.  Reed,   210. 
Marshall  v.  Eeriidge,  385. 
V.  Cohen,  648. 
V.  Davis,  1390,  1406. 
V.   Eggleston,   408. 
V.   Forest  Oil  Co.,  1376. 
V.  Grosse  Clothing  Co.,  1171,  133S. 


2222 


TABLE  OF  CASES. 


[REFEKENCES 

Marshall  v.  Heard,  790. 

V    Lulz,    1631.    1965,   1974. 
v'   Mo.seley.   1071,   1073.   HOI.  1832. 
V.  nugg.   286.  727,  783. 
V.    Schofield,    223,   1196.    1996. 
Marske  v.  Wlllard,  267.  1675. 
Marsteller  v.  Marsteller,  1809. 
Marsters  v.  Cling.  116,  151.  1733,  1734. 
Martel  v.  Meehan,  1757. 
Martens    v.    O'Connor.    406,     853.    911. 

1001. 
Martin  v.  Babcock  &  Wilcox  Co..  1542. 
V.  Berens.   366. 
V.   Black,   2021. 
V.  Blanchett,   249,   260,  1903, 
V.  Crompe,  1831,  1832. 
V.  Crossley.  1752. 
V.  Davis.  294,  372,  379. 
V.  Drinan,   348. 
V.  Gordon,   904. 
V.  Hamer.sky,   1489. 
V.   Knapp,  19,  111,  1C27,   1645. 
V.  Lee,  1812. 
V.  Martm,  15,  877.  1073,  1085,  1101, 

1158,    1163,    1299. 
V.  Pettit,    693. 
V.  Rector,  13R2,  1405. 
V.   Richards,  566,  569,  652. 
V.  Roe,  1576. 
V.  Sexton,   918. 
V.  Smith,  382. 
V.    Splivals,    1746. 
V.    Stearns.    1171.   1337,   1338,    1906 
V.  Surman.  594. 
V.  Tobin,  92.  9-i8.  1540. 
V.  "Washburn,  795. 
V.  "Williams.    215. 
Martinez  v.   Thompson,  752,   770,   774. 
Martyn  v.  Clue,   766,   783.   887,   900. 

V.   "Williams,    771,    783,    893. 
Martyr  v.   Bradley,   1610,   1614. 
Marvin  v.  Hartz,  1774. 
Marwedel  v.  Cook.   635.  665. 
Marye  v.  Dyche,  1898. 
Marys   v.    Anderson,    51,    63,    64,    1118, 

1831. 
Mascal's  Case,   772,   900. 
Mason     v.     Bancom,     177,     1731,     1734, 
1777. 
V.  Breslin,  972. 
V.  Chambers.  1088. 
v.  Clifford,   265. 
V.  Corder,  960. 

V.  Delancy,   309,   310,   1718,   1727. 
V.   Fenn.   1588,    1592,    1607. 
V.  Pinch,  1717. 
V.  Gray,  320,  321,  411. 


.\RB  TO  rAOES.] 

Mason   v.    Howes.    590.    595.    597,    1507, 
1510,    1511. 
V.  I^enderoth,  534,   1164. 
V.  Meyers,   1637. 
V.  Payne,   16S3. 
V.    Rogers,   1024. 
V.  Seitz,  1839. 
V.    Smith,    854,    888,    963,    987,    994. 

995. 
V.  Stiles.  723.   741. 
V.  Tretig.   1475,   1479. 
V.   "^Merengo,  1472,  1477,   1478. 
v.  "Wolf,  474. 
Massachusetts     General     Hospital     v. 

Sommerville,   333. 
Massachusetts   Hnsnital   "Life   Ins.    Co. 

v.   "V\Mlson,  412,    113,    415. 
Massachusetts  Nat.   B'nk  v.  Shlnn,  56 

1591.   1603.   1621.   1622. 
Massey  v.  Goodall.  786. 
Massie  v.  State  Nat.  Bank,  393. 
Massot  v.  Moses,  33. 
Masterson    v.    Bentley,    2091. 

V.   Phinizy.    2006. 
Mastin   v.    Metzinger,   1419.    1481. 
Masury  v.    Soutliworth,    863,    885,    886, 

889.    893. 
Mather    v.    Fraser,    2017. 
Mathes  v.   Staed.   1967. 
Mathews    v.    Burke.    1932. 

V.  People's  Natural  Gas  Co.,  1276. 
Mathewson  v.   Thompson,  1441. 
Mathewson's  Case,   345. 
Mathinet  v.  Giddings.  1599. 
Matthews,   Appeal    of,   462. 
Matthews    v.    Carlton,    231,    256,    261, 
351. 
V.  Carman.    1788. 

V.   De  Groff,  675.  680.  687,  693,  699. 
V.   HiDp,   241.   247,   254,   1483. 
V.  His   Creditors,    1917.v 
V.   Matthews,    1725. 
V.  Miberg,    1290. 
V.  Nation,  1929,  1932. 
V.   Tobener,  1157,  1273,  1275,   1339, 
V.   "Ward,    1402. 
Matthews'   Slate   Co.   v.    New   Empire 

Slate  Co.,   1387,   1681. 
Matthias   v.   Mesnard,    2008. 
Mattis  v.    Robinson,   462. 
Mattocks   v.  Cullum,    601. 
Mattoon  V.  Munroe.  1300. 
Mattox  V.   Helm,   451. 
Matures  v.  "Westwood.  887,  898. 
Maughlin    v.    Perry,    887,    1532,    1681. 

1690,  1691. 
Mauldin  v.  Cox,   455, 


TABLE  OF  CASES. 


2223 


[KEFERENCBS  ARE  TO  PAGES.] 


Maule  V.  Ashmead,  519,  537,  867. 

V.   Weaver,    348. 
Itaunsell  v.  O'Brien,  1558. 
Maurer  v.  Grimm,  18a0. 
Manser   v.  Dlx,    1379. 
Maverick  v.  Lewis,  39,  265,  1147,  1649. 
Maxham  v.   Stewart,    309,   1724. 
Maxwell  v.   Collier,   2045.  2051. 

V.   Griftner,   463. 

V.   Todd,   1403. 

V.  Urban,  216,   519,  520,  1163. 
May  V.  Calder,  216. 

V.   Ennis,    656,   662. 

V.   Gillis,    5S5,    618,    760,    764,    1215, 
1216,    1217. 

V.   Kendall,    1733. 

V.   McGaug-hey,  1945,  1947. 

V.  Piatt,  301. 

V.  Rice,  86,   1080,  1426,   1435,    1449, 
1454,   1458. 

V.   Trye,   352. 
Mayberry  v.  Johnson,  275. 
Mayer  v.  Clarke,  1403. 

V.  Lawrence,    1154,    1840. 

V.  Laux,   638. 

V.  Morehead,    579,   1191. 
Mayes  v.    Evans,    1796. 
Mayfair    Property    Co.    v.     Johnston, 

2008. 
Mayfield   v.   Robinson,   278. 
Mayham  v.    Stewart,    1727. 
Mayhew    v.    Hardcsty,    863,    908,    956, 
972,  975,   976,   994,   1001,   1129. 

V.    Suttle,    332,    1419. 
Mayho  v.   Buckhurst,   891. 
Maynard  v.  Moore,  348. 
Mayo  V.  Peaster,   733. 

V.   Fletcher,     320.. 

V.   Shattuck,  410. 

V.   Trye,   444. 
Mayor  v.  Northern  Trust  Co.,  1969. 
Mayor  of  Poole  v.  Whitt,  504,  505. 
Maywood  v.  Logan,  562,  570. 
Mead  v.  Madden,   972,   974,  983,  1127. 

V.   Ov>en,    333,    334,    1651. 

V.  Pollock,  3S3. 

V.   Thompson,   1936,    1948,    1960. 
Meadows  v.   Truesdell,    679. 
Meagher  v.  Hayes,  1531,   1619. 
Meaher   v.    Pomeroy,    1490,    1492. 
Mears  v.  Remare,  1806. 
Meath  v.  Watson,  1388. 
Mebane    v.    Patrick,    2113. 
Mecham    v.    McKay,   505. 
Mechanics'    &    Traders'    Fire    Ins.    Co. 

V.  Scott,  1147,   1150. 
Mechelen  v.   Wallace,   1238. 


Mecklin  v.   Doming-,  1933. 

Medary  v.  Gathers,  1144. 

-Modicke   v.   Sauer,   1623. 

Aiedinah    Temple    Co.    v.    Currey,    931, 

983,    13S8. 
-Medlin  v.    Steele,    407. 
Meeker  v.   Gardella,   1864. 

V.  Spalsbury,      1269,      1275,      1322, 
1335. 
Meeks  v.  Bowerman,  1301. 

V.   Ring,    50,    51,   54,   577. 
Meffert  v.  Dyer,  1630,   1639,   1672. 
Megargee   v.   Longaker,    1264. 
Megson  v.  Mapleton,   2053,   2088. 
Meier  v.  Thieman,   117,   151,   152,   1783. 
Melcher   v.    Kreiser,    471.   1830. 
Melhap  v.  Meinhart,    57. 
Melick  V.  Benedict.   1999,   2000. 
Mellen    v.    Morrill,    639,    640,    650,    660, 

671,  789. 
Melley  v.  Casey,   192,   1461. 
Mellor  V.  Watklns,  1351. 
Melms  V.  Pabst  Brew.  Co.,  717,  719. 
Melson  v.  Dickson,  1815. 
Memphis  &  Charleston  R.  Co.  v.  Gray- 
son, 203. 
Mendel  v.   Fink,    645. 
Mendelson  v.  Stout,  1144. 
Mendenhall   v.    Klinck,    22. 
Monger  v.   Ward,  949,  1567,  1572,  1573, 

1621,    1689. 
Meni  v.  Rathbone,   1363,   1373. 
Meno  V.   Hoeffel,    154,    1434. 
Menominee  River  Lumber  Co.  v.  Phil- 
brook,  1727,  1782,  1783. 
Menough's  Appeal,  878,  1035,  1040. 
Mousing  Bros.    &     Co.     v.      Cardwell, 

1950. 
Mentzer   v.    Hudson    Sav.    Bank      115, 

274. 
Meraman's  Heirs  v.   Caldwell's  Heirs, 

1355,  1358. 
Mercer  v.  Cross,    1973. 
Merceron    v.   Dowson,    987,   1129. 
Merchants'    Ins.    Co.   v.   Mazange,   863, 

972,    977. 
Merchants'     Loan     &     Trust     Co.     v. 

Boucher,    633. 
Merchants'     Nat.     Bank     v.     Stanton, 

1600. 
Merchants'  State     Bank     v.     Ruettel, 

262,    366,    868,    1061,    1478,   1479. 
Merchants'      &      Planters'      Bank      v. 

Meyer,    1928,    1942,    1961,    1963. 
Meredith  Mechanic  Ass'n  v.  American 

Twist  Drill  Co.,  268,  588,  1237,  1241, 

1843. 


22:M 


TABLE  OF  CASES. 


[nEFERENCES  ARE  TO  PAGKS.] 


Meridian    I^nd    &    Industrial    Co.    v. 
Ball,   16,   516. 

Merjton   v.  Coombes,   1506,   1508. 
Merkel's    Estate,   In   re,    213. 
Merki  v.  Merki,   1778. 
Meroney  v.  T^^right,   1755. 
Merrell  v.   Atkin,    1086. 
Merriam  v.   Ridpatli,   1592. 
Merrill    v.   Bullock,   1493,   1494. 
V.  De  la  Granja,    1371. 
V.    Frame,   526,   541. 
V.  Hexter,   1681. 
V.   AVillis,    1171,    1337. 
Merrit  v.  Fisher,  1908. 
Merritt  v.  Closson,   1295. 

V.  Dufur,    295,    296,   297. 

V.     Judd,     1569,     1573,     1586,     1593, 

1597,   1607,    1609,   1614,    1684. 
V.  Merritt,   1436. 
Merrj'man  v.   Bourne,   504,   1298,   1299. 
Mershon  v.   Williams,    518,   1507,   1510, 

1511,    1512,    1526,    1528,    1529. 
Meserole    v.    Hoyt,    1217,     1223,    1224, 
1228,   1233. 
V.  Sinn,   1224,  1233. 
Messenger   v.    Armstrong,    1419,    1464, 

1499. 
Messerly  v.  Mercer,  35,   1419. 
Messing  v.  Kemble,   2084. 
Messinger    v.    Union    Warehouse    Co., 

189,    508,    1651,   1664. 
Messier   v.    Fleming,    1783. 
Metcalf  V.  Hart,   22. 
Metcalfe  v.  Fosclick,  1968,  1973. 
Metropolitan  Ass'n     v.     Fetch,     2106, 

2107,   2112. 
Metropolitan    Concert    Co.    v.    Sperry, 

1570,    1623. 
Metropolitan     Countie.'s,    etc.,     Soc.    v. 

Brown,  325. 
Metropolitan    Land    Co.    v.    Manning, 

856,   1374,  1384,  1404. 
Metropolitan    Life    Ins.   Co.    v.    Stand- 
ard Nat.    Bank,   lOGO. 
Metropolitan    Sav.    Bank    v.    Hanion, 

675,    676,   680,   696. 
Metzger  v.   Brincat,    831. 

V.    Sohultz,    56S,   650,    652,   699. 
Meux  V.   Cobley,    719,    730,   786. 

V.  Jacobs,   1581,   1583. 
Meuxs  Brewery  Co.  v.  City  of  London 

Blec.    Lighting   Co.,    2108,    2117. 
Mexborough,   In  re,    1054. 
Mexican  Nat.  Coal,  Timber  &  Iron  Co. 

V.  Frank,  948. 
Meyer  v.   Bloom,   328,  1204,   1923,  1933. 
V.   Harris,    791,   792. 


Meyer  v.   Livesley,   919,   1098,   1245. 
V.   O'Dell,    1904. 
V.    Oliver,    1923,    1992,    1995,    2019, 

2022. 
V.   Smith,  71,   1170,   1171,   1333. 
Meyer    Bros.'    Assignee    v.    Gaertner, 

939. 
Meyerhoffer  v.   Baker,    1810. 
Meyers   v.   Burns,  585,   586,   599. 
V.  Marsh,  2116. 
V.   Myrell,   751. 
V.   Rosenback,   561. 
V.    Russell,    562,    563. 
Mhoon  V.  Drizzle,   102. 
Michael  v.   Curtis,  106,   1867,  1868. 
Michaels    v.    Fishel,    1178,    1813,    1814, 

1980. 
Michel  V.  O'Brien,  1388. 
Michenfelder  v.  Guthrie,  1738. 
Michigan  Cent.  R.  Co.  v.  Bullard,  474, 

483. 
Michigan    City  v.    Leeds,    248. 
Mickle  V.    Douglas,    1591. 

V.    Miles,    101,    1021,    1998. 
Mickles'  Adm'r  v.  Miles,  2034,   2086. 
Micklethwait  v.   Winter,    273. 
Middlebrook  v.  Corwin,    787,   788,    789, 

1728,    1741. 
MiddlekaufE    v.    Smith,    584,    587,    590, 

592,   754. 
Middlemore  v.    Goodale,   887,    904. 
Middleton's  Ex'rs    v.   Middleton,  1887. 
Midgley    v.    Lovelace,    880,    885,    1831, 

1832,    1833. 
Midgleys  v.  Lovelace,   888,   1823. 
Midland   R.  Co.   v.   Fisher,   347. 
Miland   v.   Meiswinkel,    1205. 
Miles  V.    Elkin,    1866. 

v.   Furber,    2008,   2009,    2012. 

V.   James,    1906,    1936. 

V.  Janvrin,  593,   598,  607,  631,   661, 

662,  665. 
V.  Lauraine,    798. 
v.  McNaughton,   1566. 
V.   Orr,    1793. 
V.  Tracey,  628. 
Miles'  Lessee  v.  Fisher,   44. 
Milford  v.  Holbrook,   661,   700,   705. 
Milhop   v.    Meinhart,   62. 
Milhouse  v.  Patrick,  488,  501. 
Mill   V.   Hill,   1555. 
Mill    Creek    Coal   Co.      v.      Andrukus, 

1751. 
Millan  v.   Kephart,  75. 
Millard  v.  Harvey,  1693. 
V.  McMuUin,    1166. 
V.    Martin,    1690. 


TABLE  OF  CASES. 


2225 


[EEFEEENCES  AKE  TO  PAGES.] 

MlTlard  v.  Robinson,  1253. 
i..±iilay  V.  Millay.  182. 
Milledg-eville   v.    Thomas,    1692. 
Miller,  Ex  parte,    TO,  221. 
MiUer  v.  Baker,    1574,    1629,   1949. 
V.   Benolt,    793. 

V.  Benton,  1044,  1171,  1213,  1219. 
V.    Blow,   1841,    1842. 
V.   Clement,   1647. 
V.   Crawford,   1078,   1120. 
V.    Dennis,    1167. 
V.   Edison  Elec.  Illuminating  Co., 

2121,    2128. 
V.  Fitzgerald  Dry  Goods  Co.,   818, 

819,  825,   2126,   2128. 
V.  Forman,  1359. 
V.   Gray,    1622. 
V.  Green,  291,   1155. 
V.  Greenwich,   21. 
V.  Hancock,  629,  631,  640,  666,  702. 
V.  Havens,  la63,  1642. 
V.  Hennessy,  1591. 
V.  Johnson,  1724. 
V.  Lampson,  1471,  1747. 
V.   I^ncaster,   1851,   2071. 
V.    Lang,    501. 
V.  Levi,  74,  75,  1734,  1752. 
V.   Lowe,   1430,   1743. 
V.  McBrier,  454,  471. 
V.  McCardell,   585,  590,  599. 
V.   Maguire,    303,   1231,   1258,   1260, 

1288. 
V.  Manwaring,  191,  400,  1316. 
V.   Michel,    1275. 
V.  Morris,  776,   777. 
V.   Prescott,    810,  1376,    1385,    1388, 

1390. 
V.   Rinaldo.    593,    662. 
V.  Sharp,  263,   389. 
V.   Shields,  715,  745. 
V.  Smythe,   206,   212,   579. 
V.   South,   487,  49L 
V.  Stagner,  1101. 
V.   State,   21. 
V.  Sullivan,  597,  598. 
V.  Tebb,  2055. 
V.    Trafford,    1551. 
V.  Turney,   501. 
V.  Warren,  16. 
V.    White,    1740,    1809. 
V.  Woodhead,  639. 
Millett  V.   Longomarsino,    16,   455. 
Millhollin  v.  Jones,  437. 
Millie  Iron     Min.     Co.     v.      Thai  man 

1154. 
Milliken  v.  Faulk,  164,  282. 
V.  Selye,  2022. 


Milliken  v.  Tbomdike,  298,  444,  661. 
Milling    V.    Becker,    1335,    1337,    1338, 

14S2. 
Mills  V.  Auriol,   960,    1123,    1^1. 
V.    Baehr's    Ex'rs,   1205. 
V.  East  London  Union  Guardians, 

768. 
V.    Goff,   1445. 
V.  Hamilton,  417. 
V.  Haywood,    1683. 
V.  Heaton,  417. 
V.  Matthews,  1407. 
V.  Merryman,  1120. 
V.  Peed,  507. 
V.  Pryor,  1916,   1921. 
V.   Sampse!,   1273. 
V.   Temple-West,   70Q. 
Mills'   Adm'r  v.    Cavanaugh,    632,   646. 
Millsaps  V.  Tate,  1951. 
Milner  v.  Cooper,  1949. 
v.   Harewood,  1556. 
Milnes  v.  Branch,   1110. 

V.   Gery,   1545. 
Milsap  v.  Stone,  171. 
Milton  v.  Haden,  456. 
Minard  v.  Burtis,  1453. 
Mine  Hill  &  S  H  R  Co.  v.  Lippincott, 

2126. 
Miner  v.  Barling,  1717. 
Miners'   Bank   of   Pottsville,    v.    Heil- 

ner,  1023,   1899. 
Mineral    R.    &   Min.    Co.    v.    Flaherty, 

441. 
Minneapolis     Baseball     Co.     v.     City 

Bank,  1043. 
Minneapolis  Co-operative  Co.  v.  Wil- 
liamson,   834,   835,   1167,   1241,   1S31. 
Minor  v.  Sharon.  562,  564,  565,  566. 
Minot  v.  Joy,  855. 
Minphall    v.    Lloyd,    1590,    1591,    1621, 

1623. 
Minshull  v.  Oakes,  770,  892,  969. 
Minturn  v.  Burr,  1795. 
Mirick  v.  Bashford,  899,  900. 

V.  Hoppin,  873,  1116. 
Mirsky  v.  Horowitz,   546. 
Missell  v.  Lennox,   672. 
Mississinewa   Min.   Co.      v.     Andrews, 

1245. 
Missouri  K.    &   T.   R.   Co.   v.   Fuimore, 
2098. 
V.    Keahey,    1002. 
Missouri,  K.  &  T.   Trust   Co.   v.  Rich- 
ardson,   1124. 
Missouri  Pac.  R.  Co.  v.  Atchison,  1863, 

18S9. 
I  Mitchell,  In  re,   1900. 


L.  and  Ten.  140. 


2226 


TABLE  OF  CASES. 


/ 


fRPJPE'RjrN'CES  ARE  TO  PAGES.] 


Mitchell  V.  Badgett,   1965,   1&67,   1971. 

V.   Blossom,    1467. 

V.  Brady,  694. 

V.  Buratta,  2136. 

V.  Clary,   1491. 

V.  Coates,   2023. 

V.   Coffee,   2010,   2012. 

V.  Com.,   164,    1009. 

V.   Davis,   335. 

V.  Franklin,  2005,   2048,  2351,  2077. 

V.  McCauley,  1043. 

V.   McDuffy,    2078. 

V.   Matheson,  81. 

V.   Plaut,   608. 

V.   Printup,    1712. 

V.  Reed,   1555,    1556,    1557. 

V.  Scott,   302,   303. 

V.  Young,   1351. 

V.    Zimmerman,    295. 
Mittelstadt  v.   "Wulfers,    1236. 
Mittler   v.   Herter,    268. 
Mixon  V.  Coffleld,  1166. 
Mizner  v.  Minroe,    116. 
Mobley  v.   Dent,   1987. 
Modlen  v.  Snowball,  394. 
Modlin    V.    Kennedy,    712. 
Moeckel  v.   Cross  &  Co.,  2102. 
Moen  V.   Lillestal,   308. 
Moench  v.   Yung,   1755. 
Moffat  V.  Henderson,  858,  859. 

V.   Strong,    534,   1163,   1298,  1844. 
Moffatt  V.  Smith,   1107,  1235,  1878. 

V.   Sydnor,    441. 
Moiir  V.  Quigley,  1086. 
Moil  Finch's  Case,  143,   1435. 
Molineux   v.   Hurlburt,    1281. 
Moller  V.  Barrett,  1461. 
Mollett  V.   Brayne,    1314. 
Monarch  v.  Dean,   1932. 
Monday  v.    Elmore,   1958. 

V.  O'Neil,  1635,  1644,  1645,  1647. 
Money  v.   State,   1950. 
Monihan  v.  Wakelin,   1522,  1-533,   1553. 
Monk   V.    Cooper,    1202. 

V.    Noyes,    7&7. 
Monks  V.   Dykes,    35. 
Monnich  v.   Schwartz,   1977. 
Monroe  v.  Carlisle,   684. 
Monsen  v.  Stevens,   309. 
Montague  v.  Hood,   1503, 

V.  Mial,   1918,  1919. 

V.   Sewell,   327. 

V.  Smitb,  &5. 
Montanye     v.     Wallahan,     507,     1299, 

1300. 
Monteitli    v.    Pinkbeiner,    650. 
Montgomery  v.  Craig,  1356. 


Montgomery     v.     Hamilton     County, 
1486,    1515,   1526,   l&3o. 

V.   Leuwer,   1080. 

V.  Merrill,  1644. 

V.  Spence,  1123. 

V.  Willis,  1476,  1486. 
Montgomery  Amusement  Co.  v.  Mont- 
gomery  Traction  Co.,  821. 
Monti  V.  Barnes,  1562. 
Montjoy's  Case,   31. 
Montooth  V.  Gamble,   33. 
Moodie    v.    Garnance,    868, 
Moo<Jy  V    Garnon,   1D65. 

V.  King,  2109,  2122. 

V.  Ronaldson,   1731,  1795. 

V.  Seaman,  1464,  1731,  1732. 
Mooers  v.   Martin,   1759,    1768. 

V.   Wait,   712. 
Moor  V.  Salter,   1316. 
Moore  v.  Beasley,    260,   263,   445. 

V.  Boyd,  113,   118,  1421. 

V.    Chase,    975,    976. 

V.    Clench,    1518. 

V.  Davis,   1495. 

V.    Dove,    1155. 

V.   Drinkwater,   2080,    2088. 

V.  Ellsworth,   725. 

V.   Faison,   1903,  1914. 

V.   Farrand,   932. 

V.  Foley,  1524,   1525. 

V.   Gair,   441. 

V.  Gardiner,   1243. 

V.  Goedel,  646,  648,  793. 

V.   Graham,   949. 

V.  Greg,  972,  977. 

V.    Guardian    Trust    Co.,    799,    922, 
948,    950,    1151. 

V.  Harter,  1489,    1490,  1491. 

V.   Harvey,    168. 

V.   Hershey,  200. 

V.  Jones,   1838. 

V.  Kay,  383. 

V.  Linn,'  189. 

V.  Mansfield,   1152,  1153. 

V.   Mason,    15^0. 

V.  Moore,  151,  1432. 

V.    Morrow,    154,    1434. 

V.   Parker,   562,  652,   654,   742. 

V.  Pyrke,  2057. 

V.  Rankin,  286. 

V.  Rollins,   705,   710. 

V.   Singer  Mfg.  Co.,  2065. 

V.    Smith.    110,    151,    313,    314,    315, 
1433,    1546,    1570,    1573,    1792. 

V.   Spruill,   1651. 

V.  Steljes,  594,  6&2. 


TABLE  OF  CASES. 


2227 


fREFERENCES 

Moore    V.    Townshend,    723,    724,    726, 
738,    745,    747,    749. 
V.   Turpin,   880,   1117. 
V.  Weber,  535,  574,  576.  582. 
V.    Wood,    1577,   1591,    1623. 
Moore-Cortes  Canal   Co.   v.   Gyle,    365. 
Moran    v.    Pittsburg-h   C.    &    St.    L.    R. 

Co.,    410. 
Morehead  v.   Watkyns,   230,    245,  1427, 

1432. 
Morehouse  v.  Cotheal,   712,   713. 
Moreland  v.  Strong-,  406. 
More's    Case,    932. 

Morey  v.  Hoyt.   1567,   1569,   1584,  1586, 
1587,    1621. 
V.   Pierce,   299,    561. 
Morg-an,   In   re,    1555. 
Morgan  v.  Campbell,   1898,  2021. 

V.  Davies,  1427. 

V.   Edwards,    1842. 

V.  Gritnth,  367,  1532. 

V.   Hardy,   769,    783,   887. 

V.    Harrison,   1488. 

V.    Larned,    453. 

V.  McCollister,   1167,  1343. 

V.  Moody,  1248,  1249,  16^5. 

V.   Negley,   1624. 

V.  Powers,  1449,  1464. 

V.    Short,    1269. 

V.  Smith,  828,  964,  1141,  1143,  1337. 

V.  Tims,   748,    2040. 
Morg-ell  V.    Paul,   209,    1877. 
Morgenthau   v.    Beaton,    1469. 
Morley  v.  Pincombe,    2018. 
Morningstar    v.    Querens,       364,      365, 

1842. 
Moroney   v.   Hellings,    578,    1225,   1766. 
Morphett    v.    Jones,    387. 
Morrell    v.    Fisher,    2€8. 
Morrill  v.   Baggott,    1142. 

V.   De  la  Granja,   1372.    • 

V.  Mackman,   30,    246. 
Morris  v.  Apperson,  463. 

V.    Beal,    774. 

V.   Beebe,  100,   2136. 

V.   Burton,    1502. 

V.  Cairncross,  744,   747,   749. 

V.   Dayton,    1342,    2086. 

V.   Edgington,    531,    816, 

V.    Elme,    219. 

V.   French,  1598,  1614. 

V.   Hammerle,   2091. 

V.    Healy    Lumber   Co.,    123,    1363. 
1746. 

V.  Kennedy,    600,    776,   891,   900. 

V.  Kettle,  268,     1160,     1161,     12^73, 
1^74,   12T5. 


ARE  TO  P.'VGES.] 

Morris  v.   Morris,   731. 

V.   Niles,    134,   169,   872,   1102,    18S6. 
V.  Parker,   2022,  2027. 
V.  Pratt,  1673. 
V.  Shakespeare,   297. 
V.    Tillson,    1258,   1290,   1&65. 
V.   Wheat,   16,  17,  486,    491. 
Morris     Canal      &     Banking     Co.      v. 
Haight,    841. 
V.    Mitchell,    69,    337,    1726,     1746, 
1790,   1806. 
Morris  Co.   v.   Soutfeworth,   720,   744. 
Morrison   v.    Bassett,    441,    464. 

V.     Chadwick,     1160,     1290,     1291, 

1325. 
V.   Chicago    &   N.    W.   R.   Co.,    815, 

2125,    2126. 
V.  Herrick,   262,   263,   388,   389. 
V.  Peay,    262,    263. 
V.  Rossignol,  1520,  1523. 
V.  St.  P.  &  N.  P:  R.  Co.,  55. 
V.   Smith,   1370,   1387,   1391,   139€. 
V.  Sohn,   1351. 
V.   State,    1950. 
Morrow,  Ex  parte,   16#9,  1965,   1974. 
Morrow  v.  Brady,   1140. 
V.    Camp,    949. 
V.    Sawyer,    1733. 
Morse  v.  Aldrich,   901. 

V.    Goddard,    504,    508,    1297,    1298, 

1299. 
V.   Maddox,    582. 
V.  Morse,  214. 
Mortimer  v.   Brunner,    1262. 
V.  Hannah,  774,   775. 
V.  Preedy,  1878. 
V.   Shortall,   301. 
Morton   v.   Lacy   Bros.,    1017. 
V.  Lawson,   17,   516. 
V.  Naylor,   1108. 
V.   Thompson,    1777. 
V.  Weir,  78,  83,  1707,  1711. 
V.    Woods,    70,    323,    324,    326,    472, 
477,  478,  897,  1989,  1990. 
Mosby  V.  Leeds,    2024. 
Moser  v.   Lower,    184,    948,   1651,   1658. 
Moses  V.  Loomis,   751,   932,  1396,  1740. 
V.   Old   Dominion      Iron      &      Nail 
Works  Co.,   720,  726,  735,   761, 
762,    770,    952. 
Moshassuck    Encampment     No.    2     v. 

Arnold,   876.   1710. 
Mosher  v.  Cole,    178,  441,  461. 
Moshier  v.    Reding,   265. 
Moskowitz   V.   DIringeo,   1351. 
Mospens   v.    Konz,    637. 


2228 


TABLE  OF  CASES. 


Moss  V.  Barton,   1533. 

V.  Gallimore,    320,    402,    872,    873 
Moss'  Appeal,   1247. 
Moss   Point  Lumber  Co.    v.    Harrison 

County,  46,   712,  713,  725. 
Moston  V.    Snow,   90. 
Mostyn  v.  Lancaster,   404. 

V.  West  Mostyn  Coal  &  Iron  Co., 
297,   461,   518,   540,   541. 
Motes  V.  Bates,  820,   8-25. 
Mothershead  v.  DeGive,   1794,  1795. 
Mott  V.  Palmer,   1600,  1617. 
V.   Shoolbred,    2107,    2112. 
V.  Underwood,  406. 
Moule  V.  Garrett,  995. 
Moulton   V.   Lawson,   1385. 
V.    Norton,   2053. 

V.  Robinson,   187,   1016,  1630,  1G51, 
1654,    1666. 
Mound  V.   Barker,    302,    1143. 
Mount   Palatine  Academy    v.   Kleins- 

chnitz,  1439. 
Mountnoy  v.  Collier,  510,  514. 
Mounts   V.  Goranson,   279,   1468. 
Mouser  v.  Davis,   1045,  1651,  1665. 
Mousley  v.    Wilson,   1782. 
Moxon  V.  Townshend,   757. 
Moyer  v.  Mitchell,   582,   1374. 
Moyle   Finch's   Case,    875. 
Moynihan  v.  AUeyn,  632,  634,   66«. 
Mozart   Bldg.    Ass'n   v.    Friedjen,    879, 

1870. 
Mxicklestone  v.  Thomas,  766. 
Mueller    v.    Chicago,    M.    &    St.    P.    R. 

Co.,   1586,   1587. 
Mugford  V.  Richardson,  1513. 
Muhlenbrinck  v.   Pooler,   1524. 
Mulcary  v.   Eyres,    1368. 
Muldoon  V.  Hite,   1131. 
Mulford  V.   Holbrook,   693. 

V.  Young,  1840. 
Mulhallen  v.  Marum,   1556. 
Mulhaupt  V.   Enders,   580. 
Mulherrn   v.  Porter,   2019. 
Mull    V.    Graham,    1692. 
Mullen  V.  Hawkins,  480. 
V.   Pugh,   1709. 
V.   Rainear,   637. 
V.   St.    John,    692,    693. 
Muller  V.   Earte,   1599. 
V.   Minke,    635. 
V.    Stone,    677. 
V.   TrafEord,    887,    898,    1523. 
Mulligan   v.  Cox,   1810. 

V.  Hollingsworth,  9-09,   1082,   1376 
13S9,  ia99. 


lEEFBEENCES  .4.UB  TO  PAGES.] 

Mullone  v.   Klein,  1731,  17G3,  1764. 


MuUoy  V.  Goff,   1539. 

V.  Kyle,  46. 
Mulvany  v.  Dillon,  1555,  1556. 
Mumby  v.  Bowden,   610. 
Mumford  v.  Brown,  407,  575,  1502. 

V.   Oxford,   W.   &  W.  R.  Co.,   2107. 
V.  Walker,   807. 
Mundy  v.  Joliffe,  389. 

V.   Warner,    186,   1320,   1745. 
Municipality   No.    2   v.   Curell,    847. 
Munier  v.   Zachary,  1627,    1631. 
Munigle  v.  Boston,  69,   94. 
Munkwitz   v.   Uhlig,    924. 
Munro  v.  Waller,  943. 
Munroe  v.   Armstrong,    1568. 

V.  Carlisle,    703. 
Munson  v.    Plummer,   110. 

V.   Wray,    265. 
Murat  V.  Micand,  1725. 
Murdock  v.   Ratcliff,    46. 
Murphy    v.    Century    Bldg    Co.,    1293, 
1359. 
V.  Chase,   2053,  2062,  2066. 
V.   Daly.   708. 
V.   Farley,    596,    1149. 
V.   Hopcroft,  1122,   1829. 
V.  Illinois  Trust  &  Sav.  Bank,  574. 
V.    Little,   1490. 
V.  Marshall,   604,  1290. 
V.   St.  Louis  Type   Foundry,    721. 
V.    Scarth,    1982. 
V.  Teter,    490,    500. 
V.    Thomas,    213. 
Murr  V.   Glover,    399,   1988. 
Murray  v.   Albertson,   573,   1228. 
V.  Armstrong,   287,  1418. 
V.  Blanchard,    2047. 
V.  Cazier,  1026,  1119. 
V.  Cherington,   49,   62,   107,  108. 
V.  Emmons,   190. 
V.  Harway,  941,  945,  1400. 
V.  McShane,  692. 
V.   Moross,    778,    1607. 
V.  Mounts,   1117. 
V.   Richards,    679. 
V.  Riley,   328. 
V.   Shave,    1331. 
V.    Vaughn,    2054. 
Murray,    Caldwell   &  Co.  v.   Penning- 
ton,  507,   1290,   1299. 
Murrell  v.   Jackson,   1231. 

v.   Lion,    66,    1452. 
Murtland  v.  English,  1529,  1532,   1535, 

1803. 
Musewald  v.  Seeker,   1042. 
Muskett  V.  Hill,   1405,  1444. 


TABLE  OF  CASES. 


2229 


Muspratt  v.  Gregt)ry,  2007,  2010,  2011. 
Mussey   v.   Holt,    406,    874,    1300,    1860, 
1864.    1877,    1831. 
V.   Scott.    357,    1510,    1511,   1512. 
Mutual  Benefit  Life  Ins.  Co.  v.  Hunt- 
ington,  1618. 
Muzzy  V.  Allen,   80. 
Myer    v.    Roberts,    170,    295    ,299,    859, 

919,    1641. 
Myer   Bros.'   Assignee     v.      Gaertner, 

1920. 
Myers  v.  Bernstein,  1242. 

V.    Burns,    587,    591,    618,    754,   887, 

1843. 
V.  Croswell,  260. 
V.   Esery,   20O5. 
V.  Gemmel,   826,   1280. 
V.  Hussenbuth,  738,  744. 
V.  Mayfleld,   2000,   2038. 
V.  Myrell,   764. 
V.  Silljacks,  1173,  1174,  1554. 
V.   Smith,   2038,   2053. 
V.  Stone,  892. 
V.  White,  416,  1117. 
M«yers  Tailoring  Co.   v.  Keeley,   392. 
Myhre   v.  Schleuder,    614. 
Mylander  v.  Beimschla,   575,   675,  696 
1240, 


N. 


Nachbour  v.   Wiener,   1324. 

Nadel  v.  Fichten,  633. 

Nagel   V.    League,    1393. 

Naglee  v.  Ingersoll,   1296. 

Nahm     v.     Register    Newspaper    Co., 

608,   611,    615. 
Naish  V.  Tatlock,  1854. 
XNally  V.  Reading,  955. 
Nance    v.    lexander,    1857,    1859,    1870. 
Napier  v.  Darlington,  1689. 

V.  Foster,  1940. 
Nargett  v.  Nias,  2023,  2079,  2080,  2081 
Nash  V.  Berkmeir,   193,    245.    248,    250, 
255,    1893. 
V.    Gray,   1083. 
V.  Lucas,   2055. 
V.    Minneapolis   Mill   Co.,    630. 
V.  Palmer,    536. 
Nashville     C.     &     St.     L.     R.     Co.     v 
Heikens,   269,  1191,   1196.  2098,   2103 
2119. 
Na-son  v.   Tobey,   788. 
Natelsohn  v.  Reich,  1057. 


ARE  TO  PAGES.] 

Nathan   v.    Gendron   Iron   Wheel   Co.. 
1176. 
V.  Stern,   23S. 
Nation  v.  Tozer,   1874.  1S75. 
National     Lumber     Co.     v.     Bownaa, 

1936. 
National  Oil   Refining  Co.     v.     Bush, 

1875. 
National  Sav.  Bank  Ass'n,  In  re.  388, 
National    Union   Bank   v,    Segur,    890. 
Natkins   v.   Wetterer,    1814. 
Natural   Gas  Co.  v.   Philadelphia   Co., 

348. 
Naumberg  v.  Young,  364,  365,  560. 
Nave  V.  Berry,  365,   742,   764,  776,  798. 

918,    952. 
Naye  v.  Noezer,  755. 
Naylor  v.  Arnitt,  206. 
V.    Collinge,    1611. 
Neagle    v.    Kelly,    844. 
Neal   v.   Brandon,    7,    38.    39,   186,   19»3. 
v.  Ohio   River  R.   Co.,    1667. 
V.   Swind,    1882. 
Neale  v.  Bealing.   219. 
v.  Clautice.    2027. 
V.  Mackenzie.  1148.   1274,   2001. 
v.   McKenzie,    1149.    1296.    1893. 
V.  Ratcliff,   766. 
Nearing   v.    Coop,    441. 
Neas   V.   Lowell,   695. 
Neave   v.   Moss,   509. 
Necklace  v.   West,  1729,   1739. 
Nedvidek  v.  Meyer,   1824. 
Needham    v.    Allison,    788. 
Needham   Piano   &  Organ  Co.   V.  Hol- 

lingsworth,    1920. 
Neel   V.    Neel,   710. 
Neeley  v.  Phillips,   1941. 
NefC  V.   Ryman,   17. 
Negley  v.  Morgan,  972,  973,  992. 
Neglia   v.    Lielouka,    597. 
Neidelet   v.    Wales,    1201. 
Neiderstein  v.   Cusick,   1695. 
Neilson   v.    Slade,    1664. 
Neiman   v.   Butler,    623. 
Neiner  v.  Altemeyer,  1764,  1768,   1804. 
Neiswanger   v.    Squier,    1605. 
Nellis    V.    Lathrop,    92.    494,    496,    1067, 

1166. 
Nelson    v.    Godfrey,    689. 
V.  Howison,    28. 
V.   Kalkhoff,   985. 
V.  Liverpool   Brewery      Co.,      661, 

679,    700. 
V.  Minneapolis    &    St.    L.    R,    Co., 

2129. 
V.  Thompson,   1337. 


2230 


TABLE  OF  CASES. 


|B»PBKBWCES  ARE  TO  PAGES.] 


Nelson  v.  "Ware,   14M. 

V.    Webb,    1&03,    1917. 
Nemetty    v.    Taylor,    179-6,    1809. 
Nemrow  v.   Assembly  Caterin-g  &  Co., 

834. 
Neppach   v.    Jordan,    19,    380,    1418. 
Nerhooth    v.   Althouse,    438. 
Nesbit  V.  Godfrey,  .51. 
Nesbitt    V.    Meyer,    394. 

V.    Tredennick,    1558. 
Nessley   v.    Ladd,    16. 
Nestal    V.    Schmid,    313,    314. 
Neth<;rton   v.   Jessop,    354. 
New  V.  Pyle,  2027. 
Newali    V.    Bartlett,    789. 

V.   Wright,    464,    1116. 
Newberg  v.    Cowan,    1863,    18'90. 
Newbold  v.    Brown,   746. 
Newbolt   V.   Bing-ham,    1416. 
Newbrough   v.   Walker,    548. 
Newbtirg    Petroleum    Co.    v.     Weare, 

885. 
Newburyport    Turnpike    Corp.    v.    Up- 
ton,   840. 
Newby  v.  Nestal,  308,   1867. 

V.   Sharpe.    1260. 
Newcomb    v.    Harvey,    913. 

V.   Ketteltas,    206. 
Newcombe    v.    Eagleton,    1140,    1142. 
Newcome  v.   Ewing,   204. 
Newell     V.     Clark,     2014,     2020,     2030. 
2066,    2059,    2079. 

V.    Gibbs,    509,    511,    1782, 

V.  Hill,    348. 

V.  Magee,    78,     537, 

V.   Sanford,   1889. 

V.  Whigham,    1416. 
New   England   Tj.   &   T.   Co.    v.    Spitler, 

200,   2'89. 
New    Era    Mfg.    Co.    v.    O'Reilly,    604, 

833. 
New    Hampshire    Trust    Co.    v.    Tag- 

gart,   101,   9S5. 
Newhoff  V.  Mayo,  822,   1543,  1601. 
Nowing   V.    Stilwell,    1790. 
New    Jersey    Midland    R.    Co.    v.    Van 

Syckle.    2115. 
New    Lincoln    Hotel    Co.     v.     Shears, 

1972. 
New  London   v.    Emerson,    445. 
Newman    v.    Anderton,    35,    1021,    1997. 

V.   French,   1210,   1238. 

V.   G-reenvine     Bank,     1923,     1931, 
1955. 

V.    Keffer,    1063. 

V.  Mackin,    439,    486,    488,    1778. 

V.   Rutter,    1356. 


Newman  v.  Ward,  1^2,  1926. 
Newmarch  v.  BrandMng,  221. 
New   Orleans    City    R.    Co.   v.    McCloa- 

key,    82«. 
Newport   V.    HartJy,    5<)4. 
Newport  News  &  O.  P.  R.  &  Elec.  Co. 

V.    Bickford,    lS4o. 
Newsome    v.    Graham,    1098,    1121. 
Newson  V.  Smythies,   342,   785. 
Newtoia  v.   Allin,   12«6,   1268,   1291. 
V.  Harland,    1509. 
V.   Osborn,   1032. 
V.  Speare     laundering     Co.,     418, 

1022,    1337. 
V.   Wilson,    1022. 
New  York,   In   re,   1598. 
New  York  v.  Brooklyn   Fire  Ins.  Co., 
Ifrll. 
V.  Campbell,     382. 
V.    Cashman,    848. 
V.   Clark,     1141. 
V.   Corliss,    581. 
V.  Dawson,   1855. 

V.  Hamilton    Fire    Ins.    Co.,    1611. 
V.   Interborough     Rapid     Tratisit 

Co..    797. 
V.   Kent,    1136. 
V.   Ketchum,    1074. 
V.   Mabie,    510,    521,   '523,   528,   1842, 

1844. 
V.  New         York         Refrigerating 

Const.   Co.,    114«. 
V.  Parker     Vein     Steamship     Co., 

1843. 
V.  United    States   Trust,    289,    620, 
621,    774. 
New  York  Academy  of  Music  v.  Hac- 

kett,    606,    1044,    1266. 
New    York    Building    Loan     Banking 

Co.    V.    Keeney,    91. 
New  York  Central   &  St.  L.  R.  Co.  v. 

Randall,    29,    159,    1478,    1479. 
New  York  Dry  Goods   Store   v.   Pabst 

Brew.   Co.,   1160,    12«1,    1266. 
New    York    Dyeing    &    Print.    Estab- 
lishment   V.    DeWestenberg,    1712. 
New   York    El.    R.    Co.    v.    Manhattan 

R.    Co.,    8^,    1372,    1373. 
New  York  Guaranty  &  Indemnity  Co. 

V.    Tacoma   R.   &  Motor  Co.,    853. 
New  York   Life   Ins.    Co.    &   Trust   Co. 
V.    St.    George's   Church,    1534,    1553. 
New  York  P.  &  O.  R.  Co.  v.  New  York, 

B.  &  W.  R.  Co.,  985. 
New  York   Real  Estate  &   Bldg.    Imp. 
Co.  V.  Motley,  1197,  1^04,  1213,  1215. 


TABLE  OF  CASES. 


2231 


fltEFKKSNCES 

New  York  &  N.  J.  Tel.  Co.  v.  DeGray, 

1730. 
New  York  &  T.  I^nd  Co.  v.  Dooley,  15, 

1S43. 
Nichol    V.    McDonald,    867. 

V.   Thomas,    200. 
Nicholes   v.   Swift,   242,   261,  1044. 
Nicholl   V.    Cotter,    2042. 
Nichols  V.  Dusenbury,  1842,  1996,  2037. 

V.   Hicklin,    24  5. 

V.  Palmer,    1140. 

V.   Peck,   22. 

V.  Sargent,    218,    1707. 

V.  Williams,  1428. 
Nicholson      v.      Munigle,      1074,      1164, 
1165,    1S91. 

V.   Smith,    1532,    1533. 
Nickel  V.   Brown,   957,   992. 
NickelJs   v.    Atherstone,    1343. 
Nickelson   v.   Negley,   1938.  1962,    1964. 
NickoUs  V.    Barnes,    253,   274,    346,   347. 
Nickols   V.   Jones,   1842. 
Nicoll   V.    Burke,    351,    358,    1829. 

V.   Penning-,    806. 

V.  Railroad   Co.,    202. 
Nlcrosi   V.    FhilHpi.    481,    1717. 

V.   Roswald,    1957. 
Niederstein    v.    Ciisick,    1552. 
Nieland    v.   Mahnken,    1593,   1606. 
Nielander  v.   Chicago,   M.   &   St.    P.    R. 

Co.,    300. 
Nifrhtingale   v.    Barens,    167,    317,    322, 

1675,    1729. 
Nigro   V.    Hatch.    1569. 
Niles  V.    Gonzales,    471. 

V.  Iroquois    Realty,    1813,    1980. 

V.  Ransford,    491. 
Nimmo   v.    Harway,    1207,    1216. 
Nims    V.    Big-elow,    1137. 
Nindle   v.    State    Bank,    65. 
Ninman    v.    Suhr,    364. 
Nisbet    V.    Hall,    1469.    1471. 
Nissen    v.    Turner,    461. 
Nitroglycerine    Case,    779. 
Nixdorff   v.    Wells,    1498. 
Nixon    V.    Freeman,    2055. 

V.  Noble,    1749. 

V.    Quin,    1874. 
Noble    V.    Thayer,    973. 

V.   Tyler.     103S,    1072. 

V.  Warren,    1260. 
Nobles   V.   McCarty,    314,   317. 
Nodine  v.   Richmond,   461. 
Noe    V.    Gibson,    2021. 

V.    Layton,    1928,    1930,    1946. 
Noel    V.    McCrory,    1478. 
Noke  V.  Awder,   538,   887,    897. 


.IKE  TO  PAGES.] 

Nokes  V.   Gibbon,  1409,  1414. 

Nokes'    Case,    526. 

Nolan    V.   Hentig,    1802,    1804.    1860. 

V.   Rotseer,    1624. 
Noland   v.    Cincinnati   Cooperage    Co., 

260,    773. 
Nolen    V.    Royston,    358,    440. 
Nonotuck    Silk    Co.    v.    Shay,    1288. 
Norman    v.    Wells,   830,    890. 
Norris    v.    Crowe,    1055. 
V.    Harrison,    1075. 
V.     Morrill,     255,     256,     1387,     1463, 
1760,    1766,    1769. 
North   V.   StatTord,     1826,     1828,     1880, 

1890,    1891. 
North  Chicago   St.    R.   Co.    v.   Legrand 

Co.,    392,    959,    1414,    1769. 
North   Staffordshire    Steel   &   Iron   Co. 

V.    Camoys,    1396. 
Northampton   County,    Appeal    of,    201. 
Northestern   R.   Co.  v.   Elliot,   820,  893. 
Northern   v.    State,    1629. 
Northern    Bank   v.    Roosa,   9<^7. 
Northern   Cent.    R.   Co.   v.   Canton  Co., 

1573,    1588. 
Northern  Pac.  R.  Co.   v.  McClure,   890. 
Northern    Trust    Co.    v.    Palmer,    7,    8, 
577,    60«,    611. 
V.   Snyder's    Adm'r,    862,    889,    97), 
1971. 
Northness    v.    Hillestad,    1664. 
Northumberland     v.     Brrington,     34o', 

1834. 
Norton   V.  Acklane,   962., 

V.  Beckman,    1778,    1801. 
V.  Gale,    1^1. 
V.   Sanders,    178,   501. 
V.   Sturla,    1728. 
V.  Vultee,    986. 
Northwestern        Distilling        Co.        v 

Brant,     287,     359. 
Northwestern    Mut.    Fire    Ins.    Co.    v. 

Blankenship,    200. 
Northv.^estern    Ry.    Co.    v.    McMichael, 

198,    199. 
Norval    v.    Pascoe,    887,    987,    1129. 
Norwalk    Gas    Lright   Co.    v.    Norwalk, 

613. 
Norwood    V.    Kirby's   Adm'r,    491,    809. 
Nott  V.   Owen,    1880. 
November   v.    Wilson,    1280. 
Nowfrll  V.   Wentwortli,   1379,    1759. 
Nowery  v.    Connolly,    1045,   1659,   2002 
Nowlin  Lumber  Co.   v.   Wilson,   29. 
Noyes  v.  And«rson,   537. 
V.  Longhead,     49. 
V.   Stillman,    2098,    2117. 


22S2 


TABLE  OF  CASES. 


Noyes  v.   Stone,  712. 
N'ti&ent  V.  Boston,  C.  &  M.  R.  Co.,  684, 
703. 

V.   Kirwan,    2011. 

V.  Riley,    59. 
Number  121  Madison  Ave.  v.  Osgood, 

1344. 
Ntt»n   V.   Fabian,    263,    389. 

V.  Truscott,     395. 
Nttttall  V.    Staunton,    1994. 
Nye    V.    Patterson,    1407,    1630,    1642. 

V.     Slorer,    201. 


o. 


Oakapple    v.    Copous,    1456. 
Oakes   v.    Aldridge,    2129. 

V.   Munroe,     436,     439,     1730,     1762. 

V.  Oakes,    18S6,    1887. 

Oakford   v.   Nixon,    28,    1302. 

Oakley  v.  Monck,   401,   413,   1484,  1629. 

V.   Schoonmaker,    1727,    1752,    175>?. 

Oastler     v.     Henderson,      1336,     1338, 

1339. 
Oates    V.    Frith,    1026. 
Obendorfer   v.   Meacham,    1337. 
Ober  V.   Brooks,  1245,   1681. 
Obermann    Brew.    Co.    v.     Opherking, 

1145. 
Obermyer  v.    Nichols,    605,    1063,    1237. 
O'Brien    v.   Ball,    1181,    1182,    1184. 
V.  Capv/ell,    652. 
V.  Cavanaugh,    1425. 
V.   Egan,   1555. 
V.  Jaffe,    1049. 

V.   Kusterer,     1569,    1573,    1575. 
V  Levine,    1979,    1980. 
V.  Mueller,    1598,    1605. 
V.  O'Brien,    729. 
V.   Smith,     275,     1104,     1148,     1151, 

1152. 
V.  Troxel,    1485. 
O'Bryan  v.    Shipp,   2092. 
Occidental   Real  Estate   Co.   v.   Gant- 

jie-r,   1093. 
Ocean   Grove  Camp  Meeting   Ass'n  v. 

Sanders.  1047,  1051,  1364,  1402. 
Ocean  Grove   Land  Ass'n  v.   Berthall 

14^6. 
Oceanic     Steam     Navigation     Co.     v, 

Smtherberry,  214. 
Ocean  S.  S.   Co.  v.   Hamilton,  '579. 
O'Connell   v.   McGrafh,    1361. 
O'CoDnor    v.    Andrews,    680,    692,    704 


630,     638, 


2092. 


[REFEIU2NCES  ARE  TO  PAGJES.] 

O'Connor  v.  Da,ily,    526,    1502. 
V.  Kelly,    1380,    1385. 
v.  Memphis,    522,    526,    538,    539. 
V.  Oliver,    260,    262. 
V.   Schnepel,    616. 
v.   Spaight,  1415. 
V.  V/hite,    1767. 
Ocum.paugh    v.    Engel,    1529. 
Odell  V.    Durant,   56,  1156. 

V.   Solomon,    700,    703,    790,    795. 
Oden    V.    Sassman,    94. 
O'Donnel   v.    Seybert,    2013. 
O'Donnell   v.    Hitchcock,    1569. 
V.  Mclntyre,    498,    504. 
v.   McMurdie,   328,    1870. 
V.  Rosenthal,   835. 
O'Dwyer    v.     O'Brien,     608, 

639. 
Oehme  v.    Shetland,    836. 
Oettinger    v.    Levy,    584. 
O'Pallon   v.    Nicholson,    S55. 
O'Farrell    v.    Nance,    2038. 
Offterdinger   v.    Ford,   20-91, 
Offutt  V.    Trail.    2045. 
Ofschlager  v.    Surbeck,    333    334. 
Ogden  V.   Duffy,    2076. 
v.   Getty,    845. 
V.   Jennings,  817. 
V.   Rowe,   1142,    1341. 
v.  Sanderson,    1142,    1277,    1290. 
v.   Stock,    1562,    1565,    1567. 
v.  Walker's  Heirs,    452. 
Ogilvie  v.  Hull,   1273,   1282,   1284. 
Ogle  V.   Hubbel,  80,   1679,   1778. 
Oglesby's    Ex'r   v.    Hughes,    289. 
Ognel's    Case,    1819. 
O'Gorman    v.    Harby,    835,    1229, 
1243. 
V.  Teets,   593. 
O'Hara  v.   Jones,   1899,   1932,   2032. 
O'Hare  v.   McCormick,   1404. 
Ohio    Iron    Co.    v.    Auburn    Iron    Co., 

909,   1383. 
Ohio   &   M.    R.   Co.    V.   Hoeltman,   1667. 

V.  Trapp,    245,    250,    255. 
Oil    Creek    &   C.    B.    Petroleum   Co.    v. 

Stanton   Oil    Co.,    939. 
O'Keefe  v.   Kennedy,   1388. 
Okeson  v.   Patterson,  2109.. 
Okie  v.   Person.    1160,   1168,   1335. 
Okolona   Sav.   Inst.   v.   Trice,   1936. 
Oland   v.    Burdwick,    1635,    1636,    1640. 
Gland's    Case,    1635,    1636. 
Olcott   V.    Frazier,    1253. 
Olden    V.    Mather,    1247. 

V.   Sassman,    29'4,    1549. 
Oldershaw  v.  Holt,  1174,  1175. 


1242, 


TABLE  OF  CASES. 


2233 


[EEFEEENCES 

Oldewurtel  v.  Wiesenfeld,    1171,   1326, 

1339. 
Olds    V.    Conger,    174S. 
O'Leary    v.    Delaney,    251. 
Olendorf   v.    Cook,    9. 
Oling-er     v.     McCliesney,     2038,     2076, 

2077. 
Oliphant  v.    Richman,   829. 
Oliver  v.  Alabama  Gold  Life  Ins.  Co., 
347. 

V.   Bredl,    603,   606. 

V.    Dickenson,    815,    817. 

V.    Gary,    444,   489. 

V.  Moore,  36,   1060. 

V.    Wheeler,    2089. 
Olmstead    v.    Dauphiny,    1853. 

V.  Tennessee  Fixture  &  Showcase 
Co.,   582,    1290. 
Olson    V.    Huntamer,    1864. 

V.   Schevlovitz.   119,   138,   1290. 

V.   Schultz,   599,   633,   662,  671. 
Olt  V.   Lohnas,    230. 
O'Mahony  v.  Dickson,  1414,  1415. 
O'Malley    v.     Twenty-five    Associates, 

634,  650,   669,    671. 
Ombony  v.  Jones,  341,  1571,  1573,  1575, 

1581,   1588. 
Omelaug-hland   v.   Hood,   423. 
O'Neal  V.  Orr,    257,  1693. 
One  Hundred  &  Tenth  St.,  In  re,   20'i, 

208. 
O'Neal   V.    Flanagan,    1213. 
O'Neill  V.  Breese,  828. 

V.    Jones,    1534. 

V.    Mang-et,    127D. 

V.  Morris,  1079,  1297. 

V.    Ogden   Aerie,    361. 
Oneto   V.    Restano,    280. 
Onslow  V.  Currie,  988,  989. 
Openshaw  v.   Evans,   760. 
Opera  House   v.   Bert,   1774. 
Oppenheimer  v.  Clunie,   296,   299. 
Opper  V.   Hellinger,    687. 
Opperman  v.  Smith,   2027. 
Orcutt  V.  Isham,  1171,  1242,  1243,  1264. 

V.    Moore,    184,    1628,    1G,"5,    1661. 
Ord  V.   Che.ster,  406. 
Ordway   v.   Remington,    1011,    1039 
Oregon  R.  &  Nav.  Co.  v.  Oregonian  R. 

Co.,   203.    204,   1155. 
Organ   v.    Toronto,    690,    790. 
O'Rourke   v.    Ferst,    613. 
Orr  v.   McCurdy,   1778. 
Orton  V.  Noonan,  1517,   1518. 
Orvis  v.   Not.   Comm.    Bank,   812. 
Osborn    v.    Beversham,    1095. 

V.  Garden,    216. 


AEE  TO  PAGES.] 

Osborne   v.  Humphrey,   1009. 

V.   Jones.   1858. 
Osgood  v.   Dewey,    501,   1871. 

v.  Howard,   1600,   1621. 
Oshinsky  v.  Greenberg,  1351. 
Osmers    v.     Furey,     1157,     1162,     1268, 

1287. 
Ossowskl  v.   Wiesner,  1056. 
Ostner   v.    Lynn,    1045. 
Ostrander  v.  Livingston,  1680,   1685. 
O'Sullivan  v.  Norwood,  635,  667. 
Oswald     v.     Fratenburgh,     964,     1141, 
1124. 

v.    Legh,    1080. 

V.  Whitman,  1584. 
Oswold  V.   Gadbold,    1885. 

v.    Gilfert,    848. 
Otis   In   re,   984. 
Otis  v.  Conway,   1134. 

V.  McMillan,  88,  91,  876,  1166,  1322, 
1323. 

v.    Smith,    817. 
Ott  V.  Grice,   2098. 

Ottens  v.  Fred.  Krug  Brew.  Co.,  1081. 
Otto    v.    Jackson,    1136. 
Ottumwa  Woolen  Mill  Co.  v.  Hawley, 

1564,    1565,    1618. 
Our    Boys'    Clothing    Co.    v.    Holborn 

Viaduct  Land  Co.,   806. 
Ousley  V.  Hampe,  582. 
Oussani   v.    Thompson,    1473. 
Outhouse   V.    Baird,    83. 
Outtoun    V.    Dulin,    267,    443,    881,    884, 
888,  899,  1100,  1103,  1154,  1820,  1822, 
1823. 
Overby  v.   Rogers,   1908. 
Overdeer  v.  Lewis,  1506,  1512. 
Overholser  v.   Christensen,   1964. 
Overman  v.    Sanborn,   954,   957. 
Overseers  of  Poor  cf  Milton  v.  Over- 
seers    of     Poor     of     West    Chillis- 
quaque,  333. 
Overton  v.  Williston,   1585,   1623. 
Overturf  v.  Dugan,  1119. 
Ovington   Bros.   Co.   v.    Henshaw,   888. 
Ow   v.   Wickham,    1803. 
Owen   v.    Boyle,    2108. 

V.   Doty,    27. 

V.   Herzihoff,   1770. 

v.   Hyde,   712. 

V.  Legh,   2031. 

V.   Thomas,    385. 

V.   Williams,   1549. 
Owens    V.    Brookport,    486. 

V.  Conner,   2002. 

V.    Hickman,    1850. 

V.    Shovlin,    2027. 


2234 


TABLE  OF  CASES. 


[BEFEIIENCES  ABE  TO  PAGES.] 


Owens  V.    "Wig-ht,    519. 

V.  Wynne,  2035. 
Owings   V.   Emery,  709. 

V.   Jones,    6SS. 
Oxenham  v.  Collins,  2031. 
Oxford  V.   Ford,    315,   316. 

V.  Leathe,   24,   30,  655,   656,  658. 
Oxford    Bank    v.    Haynes,    1837. 
Oxley  V.  James,   139,   402,   908,    1989. 
Ozark  v.  Adams,  907,  1565,  1612,  1622. 


P. 


Pabst  Brew.  Co.  v.  Thorley,   535,   536. 

Pace  V.  Goodson,  2134. 

Pacific    Express    Co.    v.    Tyler    Office 

Fixture   Co,    136. 
Pacific   Mut.   Life    Ins.    Co.    v.    Stroup, 

483. 
Packard  v.  Chicago  Title  &  Trust  Co., 
1967,    1975. 

V.    Cloveland,    C.    C.    &    St.    L.    R. 
Co.,    n5,    246,    248. 
Packer    v.    Cockayne,    12,    753,     1274, 

1332,    1850. 
Padelford  v.   Padelford,   712,  715. 
Padg-ett  V.   Ford,  1650. 
Page   V.    Culver,    1100,    1101,    1118. 

V.   Davidson.    215,   469. 

V.  Depuy,  1504. 

V.    Esty,    S81,   1383,  1523. 

V.   Fowler,   1640. 

V.   Godden,   982. 

V.    Hughes,    887,    1685,   1689. 

V.    Kinsman,    467,    503. 

V.    Larrowe,    1629. 

V.  McGlinch,  951,  1874,  1886. 

V.   More,   1446,   1498,   2010. 

V.    Parr,    1158. 

V.    Street,    171. 

V.  Wight,   399. 
Paget  V.   Electrical   Engineering   Co., 
1333,   1425. 

V.   Gee,  1073. 

V.  Marshall,   301. 
Paget's  Case,  732. 
Paige    V.    Akins,    171. 
Pain    V.    Coombs,    387,    395. 

V.   Muller,    458. 
Paine    v.    Aberdeen    Hotel    Co.,    1932, 
201-6,    2022. 

V.  Coffin,    1591. 

V.  Hall  Safe   &  Lock   Co.,   2080. 


Paine  v.   McDowell,  1601,   1620. 

V.   Sykes,    2016,    2021,    2022. 
Paine,    Kendall    &    Co.    v.    Mason,    958. 
Palethorp   v.   Bergner,    774. 
Palethorpe    v.    Home     Brewery     Co., 

807. 
Palgrave   v.   Windham,    1253. 
Pallet's    Case,    1064. 
Palmer    v.    Bowker,    499. 

V.   Bramley,    2033. 

V.   Brooklyn,    783. 

V.  Cheseboro,     219,     1732. 

V.  City    Livery   Co.,   1389. 

V.   Edwards,     909,     910,     913,     917, 
998. 

V.  Ekins,   431,   897. 

V.  Evangelical  Baptist  Ben.   &  M. 
Soc,    289. 

V.  Holford,    1524. 

v.   Ingram,  551. 

V.  Meriden    Britannia      Co.,       342, 
344,    436,    440,    481,    1338,    1699. 

V.   Purdy,    1143. 

V.   Wallbridge,    84. 

V.  Wetmore,    826,    1279. 

V.   Young,    716,    1558. 
Palmtag   v.    Doutrick,    504. 
Pancoast's    Appeal,    1899. 
Pannel    v.    Fenn,    214. 
P;)nnuto  v.   Foglia,   1177. 
Pantam   v.    Isham,    743. 
Panton   v.    Isham,   125,    2102,    2125. 

V.  Jones,     1463. 
Pape   v.   Steward;    1930,   1932. 
Papillon  v.   Brunton,   1440,  1458. 
Pappe  V.   Trout,   458,    1485. 
Pappenheim    v.     Metropolitan    El.     R. 

Co.,     2132. 
Paradine     v.     Jane,     763,     1191,     1195, 

1244. 
Pardee  v.   Gray,   168,   1741. 

V.   Steward,    978. 
Parent   v.    Callerand,    192. 
Pargeter  v.   Harris,   897. 
Pargoud  v.   Tourne,  380. 
Paris  V,   Vail,   1965. 
Parish    v.    Rogers,    44,    55. 

V.   Sleeman,    395,    844. 

V.  Vance,    817. 
Parish   Board   v.    Edrington,    15. 
Park   v.    Castle,    120,    14  27,    1724. 

V.   New   York   L.    B.   &   W.   R.    Co.. 
985. 
Park    Laundry   Co.    v.    Sassone,    1741. 
Parker    v.    Allen,    468. 

V.  Brown,    1664. 

V.  Chambliss,     725. 


TABLE  OP  CASES. 


2236 


Parker  v.  Clark,  1943. 

V.   Constable,    7S0. 

V.  Dunn,    12t)7. 

V.  Fergus,    1649. 

V.   Garrison,    1666. 

V.  Geary,    1755. 

V.   Gortatowsky,    865,    1035,    1093. 

V.  Hale,    1666. 

V.  Harris.    1838. 

V.   Lowell,    2122. 

V.  Manning-,    431,   439. 

V.  Meadows,    587,    589,    597, 

V.  Nanson,    174,    177. 

V.  Nightingale,    824. 

V.  Page,    1477,    1695. 

V.   Raymond,     448,     729. 

V.   Shackelford,    2098. 

V.   Stovall,    2045. 

V.  Tainter,   390. 

V.   Taswell,   258,   276, 

V.  Webb,    888. 

V.  Wulstein,    1610. 
Parkers  Adm'r  v.   Hollis,  230,   254. 
Parker  &  Keller's  Appeal,  1249. 
Parkerson    v.    Wightman,    2080,    2089. 
Parkinson  v.   Shew,   1864. 
Parkman's  Adm'r  v.   Aicardi,   798. 
Parks    V.    Boston,    1180,    1183,    1184. 

V.  Hays,    1376,    1753,    1758. 

V.  Laurens   Cotton   Mills,    1962. 

V.   Simpson,    1913. 

V.  Webb,    1660. 
Parmele     v.     Pulvola     Chemical     Co., 

1235. 
Parmelee  v.  Oswego  «&  S.  R.  Co.,  1369. 
Parmenter  v.    Webber,   909,   914,   1989. 
Parr   v.   Greenbush,    587. 
Parrott    v.    Anderson,    1082. 

V.   Barney,    724,   726,   738,   739,    744, 
747. 

V.  Hungelburger,   460,   476. 

V.  Malpass,    2032. 

V.   Palmer,    731. 
Parry   v.   Herbert,   923,    931, 
Parsell  v.    Stryker,    56. 
Parsons  v.  Gingell,  2009. 

V.   Palmer,    331. 
Partington  v.  Woodcock,   440. 
Partridge    v.    Strange,    421. 
Pascoe  V.   Pascoe,   1989. 
Pasteur  v.   Jones,    777,    887. 
Patchell   V.    Johnston,    1757. 
Patching   v.    Smith,    943. 
Patchin's   Ex'r   v.    Dickerman,    1341. 
Pate  V.  Oliver,  964,  1132,  1166. 

V.   Shannon,    2048,    2049,    2068. 
V.  Turner,    468,    501,    507. 


AEE  TO  PAGBS.] 

Paterson  v.  Tborapson,   2007,  2010. 
Patman    v.    Hariaiwl,   408. 
Paton  V.   Carter,   2012. 
Patrick   v.   Cobb,    1778. 
Patten   v.    Deshon,    487,    881,    885,    903, 
912,    913,    918,    958,    963,    »€4, 
1084,   1100,  1125,   1820. 
V.  Heustis,    1652. 
V.  Reid,   1875. 
Patterson  v.   Ackerson,    1206,   1209. 
V.   Boston,  ,855,    1180,    1183. 
V.  Central    Canada    Loan    &    Sav. 

Co.,    744. 
V.  Emerick,    1122,    1171,    1829. 
V.  Folmar,    1728. 
V.  Glass    Co.,    1049. 
V.  Graham,    269,   270,   1789. 
V.   Hansel,    16. 
V.  Hubbard,    266. 
V.  Jos.     Schlitz    Brew.    Ca,     651^, 

684,    691,    694. 
V.  King,   2029. 
V.  O'Hara,    1061. 
V.   Smith,    510. 
V.   Stoddard,    306,    310,   1866. 
V.  Taylor,    1898. 
Pattison  v.  Dryer,  155. 
Fattle  V.  Hornibrook,  369. 
Patton  V.   Axley,   31,   133,   134. 
V.  Bond,    1375. 
V.  Garrett,  1657,   2091,  2096. 
Patty  V.  Bogle,   1988. 
Paul  V.  Chickering,   854. 
V.   Hazleton,   21. 

V.  Nurse,   938,   946,   987,    988,   1131, 
1823. 
Pausch  V.    Guerrard,   1276. 
Pause  V.  Atlanta,  1520,   2131. 
Pawtucket  Inst,  for  Savings  v.  Almy, 

1607,   1608. 
Paxson  &  Comfort  Co.  v.  Potter,  1196. 
Paxton  v.   Kennedy,   1023.   2004. 
Payne    v.    Haine,    585,    599,    602,    754, 
755,    799. 
v.  Holt,    2002. 
V.   Irvin,  272,  622. 
v.   James,   767,   781,    880. 
V.   Rogers,    661.    700. 
V.   Schollhamer,   1189. 
V.  Vandever,    179. 
Payton  v.  Sherburne,  118,  1423. 
Peabody   v.    Long   Acre   Square   Bldg. 

Co.,    1773,    1791. 
Peacock   v.    Hammitt,   2028. 

V.   Purvis,   2019,  2021.   2073. 
Peacock  &  Hunt  Naval   Stores  Co.   v. 
Brooks  Lumber  Co.,    1403. 


2236 


TABLE  OF  CASES. 


[EEFEEENCES  ARE  TO  PAGES.] 


Peaks  V.  Cobb,  928,  929. 
Pearce  v.   Cotden,   1695, 

V.  Ferris,    162. 

V.  Nix,    473,    483. 

V.   Pearce,    440,   491,    1665. 

V.  Turner,    1678. 
Pearcy  v.  Henley,  193. 
Pearse  v.    Baron,    210. 

V.   Boulter,    1440. 
Pearson  v.  Archdeaken,  354. 

V.   Germond,   1766. 

V.  Sanderson,    1706,    1707,    1711. 
Peart  v.  Phipps,  852.- 
Pease  v.   Christ,  967. 
Peche  V.   Sloane,    1333. 
Peck  V.   Cain,    198,   199,  2099. 

V.  Christman,    783,    887,    888,   1478. 

V.   Hiler,  1262,   1270,    1372. 

V.  Ingersoll,    1087,    1385. 

V.  Jenness,    1187. 

V.   Knickerbocker    Ice    Co.,    1296. 

V.  Knox,   1809. 

V.  Ledgwidge,    1203,    1236,    1877. 

V.  Northrop,    880,    1100. 

V.   Peck,    1722,    1787. 

V.   Scoville  Mfg.   Co.,    759. 
Pederick  v.    Searle,    435. 
Peebles  v.   Crosthwaite,    928. 

V.  Lassiter,    1654,    1960. 
Peehl  V.   Bumbalek,    1488,    1526. 
Peer  v.  O'Leary,  1009,  1428,  1448,  1801. 

V.   Wadsworth,  718,  749,   810,  1002. 
Peerless  Mfg.   Co.  v.  Bagley,   615. 
Pegg   V.    Independent   Order   of   For- 
esters, 323. 

V.  Starr,    2005,    2013,    2065, 
Pell   V.    Reinhart,    629,    637. 
Pelrse  v.   Sharr,   402,    908. 
Pellatt  V.  Boosey,  1290,   1387. 
Pelton  V.   Draper,  1965.   1976,   1978. 

V.  Minah   Con.    Min.    Co.,    163. 

V.  Place,      508,     874,      1101,      1103, 
1338. 
Pemberton   v.   King,    1582,    1584,    1588. 

V.  Van     Rennselaer,     1042,     2024, 
2026. 
Pembroke   v.   Berkley,    1364. 
Pence  v.   Williams,   178,    501,    1805. 
Pendergast  v.  Young,   546,   1155,   1878. 
Pendill  v.   Eells,    1266. 

V.  Maas,    1965. 

V.  Neuberger,    54,    1840. 

V.  Union     Min.     Co.,     1379,     13S9, 
1390. 
Pendred    v.    Griffith,    1554. 
Penfold  V.   Abbott,   354,  522, 
Penley   v.   Watts,    770,    771. 


Penn  v.  Glover,   528. 

V.   Kearny,   1217. 
Pennant's  Case,  1367,  1386,   1390,  1393. 
Pennewell,    In   re,    94,    938, 
Penniall  v.  Harborne,   861, 
Penning  v.    Plat,    535. 
Pennington  v.    Coates,    1166. 
Pennock  v.   Lyons,   945. 
Pennoyer  v.  Brown,  1367,   1752. 
Pennsylvania  Iron  Co.   v.  Diller,    832. 
Pennsylvania    R.    v.    St.    Louis,    A.    & 

T.   R.  Co.,  203,  204,   1827. 
Penn  W.    &  B.   R.   Co.   v.  Appeal  Tax 

Court,   839. 
Penny  v.    Fellner,   1151,    1152. 

V.   Little,    1013,  1987. 
Penry  v.   Brown,  1609. 
Pentland  v.   Keep,    2112, 

v.   Stokes,   377. 
Penton  v.  Barnett,    1391,   1397,  1398. 

v.   Robart,    1574. 
Pentz   v.   Kuester,    439,   494,    495,   1735, 

1779,  1781. 
People  V.   Alberty,  729. 

V.  Angel,   490. 

v.  Annis,    334,   336,    1724. 

V.   Barker,    841. 

V.   Bennett,   1053,   1754,   1755,  1756. 

V.   bigelow,  309,   1727. 

V.   Boardman,   1790,   1799. 

V.  Brooklyn   Board   of   Assessors, 
841. 

V.   Commissioners    of    Taxes,    841. 

V.  Culver,    325. 

V.   Cushman,    27,    1726. 

V.  Darling,    134,    244,    1428,    1429, 
1445. 

V.  DeCamp,   1799. 

V.   Dudley,   1065,   1731,    1759, 

V.   Evans,    250. 

V.   Freeman,    1395. 

V.   Gedney,    81,    270,    1446. 

V.   German    Bank,    973. 

V.   Gilbert,   973,   1363,   1876. 

V.   Gillis,   277. 

V.  Globe  Mut.   Life  Ins.  Co.,  1078. 

V.  Goelet,    135. 

V.  Goldfogle,    1783. 

V.   Gross,    1759,    1763. 

V.   Hamilton,   1807. 

V.   Hovey,    1739. 

V.   Howlett,    456,    1729. 

V.   Ingersoll,    218,    1732. 

v.   International    Salt  Co.,    841. 

V.   Kelly,    1796. 

V.  Kelsey,    439,    1718,    1766. 

V.   Keteltas,   1791,   1793. 


TABLE  OF  CASES, 


2237 


[BHFERENCES 

People  V.   Loomis,  1023. 

V.  McAdam,  329,  1757,  1768. 

V.  McCarty,    1754. 

V.  Marvin   Safe  Co.,   1798. 

V.   Matthews,      17SG,      1792,      1799, 

1807. 
V.  Murray,    1801. 
V.  National   Trust  Co.,    985,  986. 
V.   Paulding,    1756. 
V.  Piatt,     1759,    1791,     1793,     1799, 

1806. 
V.  Pullman's  Palace  Car  Co.,   201. 
V.   Rickert,  245,   250. 
V.   Robertson,   64. 
V.   St.  Nicliolas  Bank,  377. 
V.   Schackno,    1419. 
V.   Stuyvesant,   1759. 
V.   Svvayze,    844,    1025,    1756. 
V.  Teed,    1793. 
V.   Ulrich,   1452. 
V.   Walsh,   1460. 
People's  Bank  v.  Mitchell,  1700. 
People's  Loan  &  Bldg.  Ass'n  v.  Whit- 
more,   481. 
People's    Pure    Ice    Co.    v.    Trumbull, 

388,   393. 
People's     Sav.     Bank     v.     Alexander, 

1328. 
Peoria     v.     Simpson,     680,     687,     1786, 

1792. 
Pepper  v.  Rowley,    297,   1164,    1843. 
Pere  Marquette  R.   Co.   v.   Wabash  R. 

Co.,   289. 
Perez   v.    Rabaud,    575,    583,    594,    654, 

659,   661. 
Perine  v.   Teague,    1469,   1742. 
Perkerson   v.   Snodgrass,    1103. 
Perkins  v.    Bighmie,   643. 
V.  Goodman,   1137. 
V.  Uovernor,    440. 
V.   Morse,    193. 
V.  Parker,   886. 
V.  Peterson,    68. 
V.   Potts,    174. 

V.   Swank,    1580,   1581,    1607. 
V.  Traynham,    2034. 
Perniciaro  v.   Veniero,  1160. 
Perrin   v.    Lepper,    874,   1100. 

V.  Wells,   2085. 
Perrin  &  Smith  Printing  Co.   v.  Cook 

Hotel  &  Excursion  Co.,   844. 
Perrine    v.    Hankinson,    1649,    1890. 
Perring  v.  Brook,  376. 
Perrot    v.    Perrot,    711,    733. 
Perry    v.     Aldrich,     1071,     1072,     1074, 
1076,    1080. 
V.   Bailey,    799,    2115,   2116. 


ARE  TO  PAGES.] 

Perry  v.   Bank  of  Upper  Canada,   767. 
771. 

V.  Carr,    120,    141,    724,    725,    787, 
789. 

V.   Chotzner,    757. 

V.  Davis,    751. 

V.   Perry,    1903. 

V.  Rockland  &  R.  Lime  Co.,   1484, 
1515,   1528. 

V.   Shipway,   306,    335. 

V.  Waggoner,    1920,    1934. 
Person   v.    Jones,    966. 
Peter  v.    Kendal,   1323,   1330. 

V.  Schley's  Lessee,  956. 
Peters  v.   Balke,    152,   1420,   1431. 

V.   Barnes,    1315. 

V.  Elkins,     877,    1857,    1859,    1870. 

V.   Fisher,    1804. 

V.   Grubb,   533. 

V.  Newkirk,    1170,    1332,    2078. 

V.   Stone,     773,     888,    893. 
Peterson    v.    Bullion-Beck    <fe    Cham- 
pion   Mining    Co.,    697. 

v.   Edmonson,    1191,    1286. 

V.  Kinkead,    4  39,    458. 

V.   Kreuger,    1766. 

v.   Smart,   650. 
Peticolas   v.    Thomas,    583,    5S4. 
Peto   V.   Pemberton,   1332. 
Petroleum   Co.    v.   Coal,    Coke    &    Mfg. 

Co.,    291. 
Retry  v.   Randolph,   1932,    1938. 
Petsch   V.    Biggs,    64,    1446,    1778,    1815. 
Pettengill    v.    Evans,    114. 
Petterson  v.  Sweet,  178,  483. 
Pettis    V.    Brewster,    1804. 

V.   Jennings,    1360. 
Pettit    V.  Cowherd,    307. 
Petty    V.    Kennon,    261. 
V.  Malier,   19,   1417. 

V.   Mays,    463. 

V.  Miller,    1357. 
Pettygrove   v.    Rothschild,   1387. 
Petz     V.     Voight     Brewery     Co.,     574, 

1220,   1236. 
Pevey    v.    Skinner,    836. 
Pewaukee    Mill.    Co.    v.    Howitt,    603, 

604,     606. 
Peyton    v.    Stith,    437,    451,    464,    516, 

1353. 
Pfaff   V.    Golden,    888,    962,    1830. 
Pfanner   v.   Sturmer,   1547,  1637. 
Pflum  V.    Spencer,    1489. 
Pfund  V.  Herlinger,   1268. 
Phalen    v.    Dingee,    1S38. 
Pharis    v.    G^re,    219. 

V.  Jones,  15. 


2240 


TABLE  OF  CASES. 


[ riEFERKNCES  AKE  TO  PAGES.] 


Portage    Grange    v.    Masonic    Lodge, 

30. 
Porter   v.    Allen,    779. 
V.   Chandler,    1652. 
V.  Drew,    1608. 
V.  Hooper,    1879. 
v.   Johnson,    1815. 
V.  Mayfield,   501. 

V.  Merrill,    36,    233,    903,    941,    942. 
V.  Shephard,    86,    342. 
V.   Sparks,    2092. 
V.  Swetnam,    1032. 
V.  Tull,    1196,    1197. 
Portington's    Case,    1362. 
Portman    v.     Home     Hospital     Ass'n, 
801. 
V.  Weeks,   1150. 
Portmore   v.    Bunn,   444,   445,   897,    999. 
Posner  v.  Bayless,   327. 
Posson   V.   Dean,    1460,    1765,    1791. 
Post,    In   re,    84,    95,    114,    224,    957. 
Post  V.  Blankenstein.  1057,  1840,  1841, 
V.  Davis,    393. 
V.  Kearney,     846,     848,     853,     888, 

911,    970. 
V.  Moran,    1365. 
V.  Vetter,    363,    370. 
Postal  Telegraph   Cahle  Co.  v.  West- 
ern  Union   Telegraph  Co.,   829. 
Postlethwaite    v.    Lewthwaite,    1551. 
Postman   v.    Harrell,   2027. 
Poston  V.  Jones,  1069,  1147,  1157,  1159, 

1165. 
Poteric  Gas  Co.  v.  Poterie,  1376. 
Potkin's  Case,    121,    124. 
Pott  V.  Lesher,   1857. 
Potter  V.  Bassett,   287,   2032. 

V.  Cromwell,     1565,     1566,     1568. 
V.  Cunningham,     1630,     1631. 
V.   Gronbeck,   1145,    1968,  1977. 
V.  Mercer,    373,    377. 
V.  New     York      Baptist     Mission 

Soc,    1788,   1790. 
V.  Truitt.    1892. 
Potts  V.  Clarke,   2098,   2099,   2117. 
V.  Newell,    1661. 
V.   Smith,    533. 

V.  Trenton      Water     Power      Co., 
958,    1110. 
Ponder  v.  Catterson,   470. 
Pough    &    Co.,    Paul    B.    v.    Cerimedo, 

599. 
Poultney  v.  Holmes,  913,  953. 
Powell    V.    Beckley,    575. 

V.  Crampton,    257,    713,    729. 
V.  Daily,    1898,    1972,    2021. 


Powell  V.  Dayton  S.  &  G.  R.  Co.,  720, 
726,   729,   738. 
V.  DeHart,    328. 
V.   Hadden,    314. 
V.   Harrison,    1529. 
V.   Ivinde   Co.,    298,    1325. 
V.   Lloyd,    394. 
V.   McAshan,       1575,       1576,      1598, 

1599. 
V.  New    Kn gland   Mortg.   Security 

Co.,    1870. 
V.  Perry,    1912.    1927. 
V.  Pierce,    1695. 
V.  State,    1911. 
V.   Triplett.    2089. 
V.  Whitaker,    1899. 
Powers  V.  Cope,  579,  1543,  1846. 
V.  Dennison,    1616. 
V.   DeO,    1732,    1764,    1798. 
V.   Harlow,    820. 
V.  Ingraham,    170,    309. 
V.    Sutherland,    1718,    1786. 
Powis   V.    Smith,   345,    1066,   1831,   1832. 
Powley  V.   Walker,   727,   784. 
Powseley    v.    Blackman,    321,    824. 
Powys  V.   Blagrave,  749. 
Poynter   v.    Buckley,    2065,    2084. 
Prager  v.  Bancroft,  585. 
Prahar  v.   Tousey,   1223. 
Pratcher    v.    Smith,    1440. 
Prather   v.    Foote,    208,    210,    976,    1129. 
Pratt   V.    Brett,    709,    730. 
V.   Farrar,    116,    1432. 
V.  Levan.     982,     983. 
V.  Paine,     70,     83. 
V.  Richards  Jewelry  Co.,  99,  1167, 
1350. 
Pratt,  Hurst  &  Co.  v.  Tailer,  587,  596, 

625. 
Pray   v.   Clark,    1519. 
V.  Stcbbins,    115. 
V.  Wasdell,   1806. 
Preble  v.  Hay,  1418. 
Precht  V.  Howard,    1B42,   1569,   1593. 
Breece  v.  Corrie,   913,   914. 
Preiser   v.    Wieland,    1476,    1512. 
Prendergast  v.   Searle,   120,   1455. 
Prentice  v.   Wil.son,    307,   308. 
Prentiss  v.   Kingsley,   1249,    1336. 
Presby  v.   Benjamin,  928. 
Presbyterian    Congregation     v.     Wil- 
liams, 1382. 
Prescott  V.  Boucher,   1819,   2041. 
V.  DeForest,    914,   1989,   2066. 
V.  Elm,     1448. 
V.  Kyle,    1360,   1754. 
V.  Le    Conte,    61S,    615. 


TABLE  OF  CASES. 


2241 


[EEPEREXCES  ARE  TO  PAGES.] 

Prescott  V.  Otterstatter,  588,   605,  &06,  1 
1237,    1241,    1843. 
V.  Wells,    1601. 
Presstman   v.   Silljacks,    461,    509,    515, 

Preston    v.    Hawley,    318,    1860,    1864, 
1873,  1886,  1888. 
V.  Huntington,    1136,    1143. 
V.  McGall,   2002. 
V.  Merceau,    366,    1061. 
V.  Neale,    1673. 
V.  Smallwood,    1655,    1656. 
V.   Stover,    1753. 
Pretty    v.    Bickmore,    703. 
Prettyman  v.  Hartley,  760,  1346,  1375. 
V.  Unland.    1906.    1916,    1926,    1929, 

1974. 
V.  Walston,    464,    840,    1127. 
Prevot    V.    Lawrence,     195,    441,     472, 

479.  I 

Prewett  v.  Dobbs,  2014. 
Prial   V.    Entwistle,    249. 
Price  V.   Assheton,  1519,   1554. 
V.   Eisen,    552. 
V.   Griffiths,    385. 
V.   Liimehouse,    2033. 
V.  McCallister,   2005. 
V.   Pickett,  1632. 
V.  Pittsburg,  Ft.  W.  &  C.  R.  Co., 

1290. 
V.  Roetzell,  1949. 
V.  Thompson,    1015,    2003. 
V.   Williams,   391. 
V.   Worwood,    1389,   1398. 
Price's   Bx'r    v.   Reynolds,    1843. 
Prichard  v.  Tabor,   318,  1728,   1733. 
Prickett  V.  Ritter,  1428.  1484,  1747. 
Pridgeon     v.     Excelsior    Boat.     Club, 

1266,  1268. 
Priest  V.   Foster,   777,   782. 

V.   Nichols,    642,   645. 
Prince  v.  Case,    22,  1616. 
V.   Evans,   1442. 
V.    Jacobs,    299. 
Prindle   v.   Anderson,    244,   1462. 
Printems  v.  Helfried,   2033. 
Prior  V.    Kiso,    1141.    1152,    llo3,    1331. 

V    Sanborn  County,    1213,    1234. 
Pritchard  v.    Edison   Elec.  Illuminat- 
ing Co.,   2128. 
Probst   v.    Rochester   Steam   L,aundry 

Co..   991,    1531,    1549. 
Prochaska  v.   Fox,  538. 
Proctor  V.   Benson,   376. 

v.    Keith,    583,   762,   1369. 
V.  Tows,  155. 


Proffltt    V.    Henderson,    706,    707.    712, 

713,   737. 
Pronguey  v.  Gurney,  1326. 
Propert  v.   Parker,   385,    386. 
Proprietor's   School  Fund,   In   re.    211. 
Proud  v.  Hollis,  9. 
Proudfoot  V.  Hart,    754,   755,    756,   757. 

780. 
Prout    V.    Roby,    887,    901,    1376,    1378, 

1682,    1689. 
Prouty     V.     Prouty,     120,     1427,     1724. 

1792. 
Providence    v.    Master    of    St.    John's 

Lodge.   1708. 
Providence  Christian  Union  v.  Eliott. 

348,    350,    1853. 
Providence    County   Savings   Bank    v. 

Hall,    1477,    1482. 
Provost  v.  Calder,  950. 
1  Pruitt   v.    Ellington,    1652,    1666. 
V.  Kelley,  2071. 
Pryor  v.  Foster,   299,   561. 
Puckett  V.  Reed,  1932. 
Pugh  v.    Arton,    1578,    1590. 
V.  Davis,  1779,   1780. 
V.  Duke  of  Leeds,  50. 
v.   Griffith,    2055. 
Pugh  Printing  Co.  v.  Dexter,  814. 
Pugsley  V.  Aiken.  122,  139,  1172,  1426. 

1427,    1431. 
Pulbrook  V.  Lawes,  390. 
Pulford   V.    Whicher,    15,    490. 
Pullen   V.   Palmer,    2043. 
Puliiam   V.    Sells,    1429. 
Pullman's   Palace  Car  Co.  v.   Central 

Transportation   Co.,    205. 
Pulse  V.   Hamer,   387. 
Punnett,   Ex  parte,   178,   1989. 
Purcell  V.   English.    556,   575.  583.  629. 
636. 
,.  Thomas,  2002. 
Purdy  V.  Rakestraw,  173o. 
Purdy's  Appeal,   1249. 
Purfel   V.    Sands,    2027. 
Pursel  V.  Teller,    295. 
Pursell    V.     New    York    Life    Ins.     & 

Trust   Co.,   1771. 
Pusey   V.   Presbyterian   Hospital,   127, 

Pusheck  V.   Frances  E.  Willard  N.   T. 

N.  Ass'n,   167,  1057. 
Puterbaugh  v.  PutertJaJigh,   308. 
Putnam  v.  Tuttle,  273. 

V.  Wise,  186,   187.   1649,  1051. 
V.  Wyl«y,   1671. 
Putney  Bros.  Co.  v.  Milwaukee  Light, 
Heat  &  Traction  Co.,   939. 


L.  and  Ten.  141. 


2242 


TABLE  OF  CASES. 


[EEFERENCES  AKE  TO  PAGES.] 


Pyle,  In  re,  1687. 

Pyles  V.   Reeve,   452. 

Pym  V.   Blackburn,   777. 

Pynchon  v.  Stearns,   706,  707,  708,  717, 

719,    726. 
Pyot    V.    St.    John,    760,    778,    780,    903, 

1069. 


Q. 


Quackenboss  v.    Clarke,   951,   972,   993. 
Quade  v.  Pitzloff,  1484.  1535. 
Quain's   Appeal,    354. 
Quandt  v.    Smith,   1789. 
Quartermaine    v.    Selby,      1439,      1440, 

14ol. 
Quay  V.   Lucas,   002,   663. 
Queen  v.   Hall,  483. 

V.   St.   Georg-e's  Union,   34,  36. 
Queen'.s   College   v.    Hallett,    734. 
Quertermous  v.  Hatfield,  314,  316,  317, 

1903. 
Quidort  v.  Bullitt,   1543,  1746. 
Quiggle  V.  Vining-,   1627. 
Quig-ley    v.    H.    W.     Johns    Mfg.    Co.. 

623,  793. 
Quinette  v.   Carpenter,    1171. 
Quinn  v.  Crimmings.   704,  794. 

V.   Crowe,    574.   582. 

V.   McCarty,  1753,  1816. 

V.   Perham.   634. 

V.  A''aliquette.   1514,  1526. 

V.   Wallace,  2005,  2035,    2062,   2064. 
Quincy,    Ex   parte.   157S. 
Quincy  v.   Carpenter,   863. 
Quincy  M.  &  P.  R.  Co.  v.  Humphreys, 
985. 


R. 

Rabe   v.   Fyler,   1731,    1733,    1734,   1751. 

Raby  v.   Reeves,    1020. 

Race    V.    Groves,    888,    1690. 

Racke  v.  Anheuser  Busch  Brew.  Ass'n, 

1529.   1851. 
Ruddin   v.    Arnold.    1623. 
Radey  v.    McGurdy,    1596. 
Raffety   v.    Schofield,    1680. 
Ragan  v.   Simpson,  322,  1729. 


Ragsdale   v.    Estis,    914.    1989. 

v.  Kinney,    188,   1850,   1914,   2094. 

V.  Lander.   254,  255,   1893. 
V.ailsback  v.    Walke,   231,   248,   261. 
Railton   v.    Taylor,    623,    642. 
Railway  v.  Ragsdale,  2098. 
Railway   Co.   v.    Hopkins,    692,    693. 
Rainey  v.  Capps,  168,   288. 
Rains   v.   Oshkosh,    1742,    1785,    1789. 
Rakestraw   v.   Brewer,    1558. 

V.   Floyd,    39,   187,    188,    1649. 
Ralph     V.     Lomer,     1263,     1760,     1763, 

1767,   1769. 
Ralston   v.    Boady,   302,  303. 
Ramage    v.     Womack,    213,    339,     972. 

1138,   1827. 
Rames  v.  Machin,  196. 
Ramirez  v.  McCormick,   820,   825. 
Ramnant   v.   Bremridge.   1133. 
Ramsay    v.    Stafford,    1325. 

V.   Wilkie,   758,  1302,  1313. 
Ramsdell  v.   Maxwell,  329,  330. 
Ramsden  v.    Dyson,    389. 
Ramsey  v.   Henderson,    114. 

V.   Johnson,    1104.    1839,    1972. 
Rand  v.  Barrett,   1934. 

V.  Purcell.    1490. 

V.  Vaughan,    2028. 
Rand,    McNally    &    Co.    v.    Wlckham, 

296. 
Randall    v.    Alburtis,    1285. 

V.  Andreae.    1133. 

V.  Chubb,    919. 

V.   Cleaveland.    725. 

V.   Ditch,  1627.  1945. 

V.   Rigby.    1110. 

V.  Rosenthal,    1938,    1948, 

V.  Thompson,    261. 
Randle  v.   Lory.   69. 
Randol  v.   Scott.   785.   921,  926,   1396. 

v.   Tatum,  938.  941. 
Randolph  v.   Carlton.   436,   494,   509. 

V.   Feist,    608,    609,   625,   644. 

V.   Helps,  78,   366. 

V.  McCain.   2091. 

v.   Mitchell,   1371.   1693. 
Rands   v.   Clark.   1498. 
Ranelag"h  v.   Melton.   1681,   1684. 
Ranger  v.   Bacon,   965,   1124. 
Ranger     Mercantile     Co.     v.     Terrett, 

1911. 
Rank  v.  Rank,  1658. 
Rankin   v.   Leigh.    395. 

v.   Rankin,    1684. 

V.   Tenbrook.    175. 
Ranlet  v.  Cook,  1516,  1520,  1535. 
Rapley  v.  Taylor,   2082. 


TABLE  OP  CASES. 


2243 


[BBPBKBNCBS  AEE  TO  PAGES.] 


Rasor  v.  Quails,  1636. 

Ratcliffe    v.     Bellfonte    Iron    Works, 

486. 
Rathburn   v.   Weber,    1799. 
Ratkowski   v.    Masclowski,   599. 
Rau   V.    Baker,    1171. 
Raub  V.  Barbour,  367. 
Raubltscheck    v.    Semken,    1087. 
Rauh  V.   Ritchie,   2034. 
Rauth,  V.   Davenport,   584,  596,  626. 
Rawe  V.  Chichester,  1557. 
Rawley  v.  Brown,   186. 
Rawling-s   v.    Duvall,    971. 

V.  Morgan,    769,    783. 
Rawlins  v.  Bush,   1660. 

V.   Turner,    234. 
Rawlins'  Case,    422. 
Rawlinson    v.    Marriott,    1500. 
Rawls  V.  Moye,    1923,    1972. 
Rawlyn's  Case,   431,   876,  1067. 
Rawson  v.  Babcock,   306,  310. 
Rawstorne  v.    Eentley,    1533. 
Ray  V.   Blackman,   251,   1734,   1746. 

V.  Boyd,   320. 

V.  Johnson,    919. 

V.  Western  Pennsylvania  Natural 
Gas    Co.,    1369,    1403. 
Raybiirn   v.    Mason   Lumber  Co.,   1047. 
Raymond  v.  Bell,   1795. 

V.   Fitch,    356,    901. 

V.   Hodg-son,    289. 

V.   Kranskoff,     1056. 

V.   Strickland,    1578,    1624. 

V.   Thomas,   1075. 
Raynolds  v.   Ilanna,   210. 
Raynor  v.  Drew,    238. 

V.  Hag-gard,    1728. 

V.  Valentine  Blatz  Brew.  Co.,   590. 
Rea   V.    Alffren,    1240. 

V.   Eag-le  Transfer  Co.,  1377,   1379. 

V.  Ganter,   1049. 
Read  v.   Burley.   2007,  2010,   2019. 

V.  Cranberry,   221. 

V.  Lawnse,  1021. 

V.   Tlittle,    1369,    1403. 
Readfield  Tel.  &.  T.  Co.  v.  Cyr,  1565. 
Reading    v.    Royston,    1513. 
Reading  Iron  Works,  In  re,   289,   1044. 
Reading    Trust    Co.    v.    Jack.<5on,    1140. 
Roadman  v.  Conway.  665,   666. 
Ream  v.  Harnish,   lfi.i4.   1662,  1666. 
Reams  v.   Taylor,    594.    604,    607. 
Reavis   v.   Barnes,    1955,   1961. 
Reay   v.    Butler,    2135. 

V.  Cotter,    1733. 
Reccins  v.  Columbia  Finance  &  Trust 
Co.,    1420,    1430,    1441. 


Reckhow  v.   Schank,   117,  152. 
Rector   v.    Anderson,    1664. 

V.  Gibbon,    486. 

V.  Hartford  Deposit  Co.,   361,   962, 
963. 
Rector  of  Chedington's  Case,  45,  61. 
Rector     of    Church    of    Ascension    v. 

Buckhart,    692. 
Reddick   v.   Hutchinson,    116,    310,   314. 
Rede  v.   Farr,   1369. 
Redford  v.   Win.ston,   2091. 
Redmon   v.    Bedford,    189. 
Redon  v.   Caflin,   581. 
Rted    River    Val.     Land     Inv.    Co.     v. 

Smith,   866. 
Redshaw  v.  Bedford  Level,  1554. 
Reece  v.  Strousberg,  2044. 
Reed   v.    Beck,    1047. 

v.  Campbell,    1521. 

v.  El  well,    172S. 

V.   Harrison,   782. 

V.  Hawley,    1439,    1739,    1749. 

v.  Lander,   1693,   1887. 

V.  Lewis,   57,   103,    108,   805. 

V.   McRill,    184,   1651. 

V.  Munn,   496. 

V.   Reed,   151,   1432. 

V.   Reynolds,    1151,    1152. 

V.   St.    John,    1535. 

V.   Shepley,    488. 

V.   Snowhill,    781,    783. 

V.  Swan,    1645,    1646. 

V.   Ward,   1064,    1065,    1092,    1163. 
Reed's   Bx'rs  v.   Reed,   709. 
Reader  v.  Bell,   317,   335,   1357,   1675. 

V.  Purdy,    10,    1507,   1510. 

V.  Sayre,    236,    244,    249,    250,    255, 
256,    1438,    1632,    1636,    1639. 
Rees    V.    Andrews,    940. 

V.  Baker,    7,    38,    57. 

V.   Emerick,  2029,  2076,  2078,  2086. 

V.   Evans,   197. 

V.  Lowry,    1124,    1328. 

V.  Perrot,    14  40. 
Reese   v.   Rugely,   1914. 

V.   Walker,    2049. 

V.   Zinn,   85,  102. 
Reeve  v.   Bird,  1161.  1336. 
Reeves  v.  Cattell,   803. 

V.  Comeskey,   1171. 

V.  Hannan,   39,  184,  186,   187,  1632, 
1638,    1648,    1651,    1654,   1665. 

V.    McComeskey,    122.),    1333,    1338. 

V.   McKenzie,   1497,    1998,   2001. 
Reformed  Protestant  Church  v.  Park- 
hurst,   1707. 
Reg-  V.  Chawton,  124. 


2244 


TABLE  OF  CASES. 


[bepeubnces  are  to  pages.] 


Reg.  V.  Watts,  692. 

V.   Westbrook,  1018. 
Regan  v.   Posdick,   1477,  1501. 

V.   Luthy,    7S8. 
Regnart  v.  Porter.   1998,  2073. 
Rehbach  v.   Vogt,   625. 
Re    Hinckel    Brewing    Co.,    95. 
Rehm    v.    Halverson,    1741,    1745. 

V.   Weiss.   1133. 
Reich  V.   Cochran,   456,  1808,   1810. 

V.  McCrea,    84,   86. 
Reichenbacher  v.    Pahmeyer,   700. 
Reid   V.    Brinson,    2070. 

V.    John    P.    Weissner    Brew.    Co., 
940,    946,    990,    994. 

V.  Kirk,  1578. 

V.   Stanley,   146. 

V.   Stoney,   2042,    2043. 

V.    Tenterden,    379,   979,   1133. 
Reilly  v.   Ringland,  1632,  1635,  1636. 

V.   Shannon,  789. 
Reily  v.  Carter,  1642,  1644,  1645,  1646. 
Reimer  v.  Stuber,  2112,  2113. 
Reineman  v.    Blair,    607. 
Reiner  v.  Jones,  597,  1843. 
Reis,  In  re,  1922. 
Reischman  v.  Masker,   2016. 
Reithman  v.  Brandenberg,   1490. 
Remnant  v.    Bremridge,    1875. 
Remsen    v.    Conklin,    1093,    1094,    1095, 

1850,    2046. 
Renalds  v.  Offitt,  448,  469, 
Renals   v.    Colishaw,    822. 
Remlall   v.   Andreae,   978,   979. 
Rendell  v.  Roman,  26.  1020,  1996. 
Renew  v.   Redding,    2048. 
Rennie  v.   Robinson,    491. 
Rennyson's  Appeal,   1280. 
Reno  V.   Mendenhall,    605,   618,   952. 
Renoud  v.  Daskam,   1532. 
Rensens  v.  Lawson,   17. 
Rentfrow  v.  Ijancaster,  1651. 
Requa  v.   Domestic  Pub.   Co.,   1335. 
Respini   v.    Porta,    1171,    1339. 
Resser  v.    Convin,    299,   1171. 
Revell  V.   Hussey,  1551. 
Rex  V.  Cheshnut,  332. 

V.  Oakley,   216. 

V.    Pedly,    676,    696,   698. 

V.  Pomfret,   1018. 

V.    Stock,    332. 

V.   Sutton,   216. 

V.  Topping,   9^31. 
Reynard  v.  Arnold,   1688. 
Reynolds  v.  Ashby,  1620. 

V.  Barford,   124  8. 

V.  Chynoweth,  786,  1657. 


Reynolds  v.   Davison,   68. 

V.   Kllis,    1967. 

V.    Puller,    97,    1385,    1738. 

V.    Greenbaum,    280. 

V.  Howard,  1657. 

V.    Lewis,    445. 

V.    Meldrum,    528,    829. 

V.   Pitt,    1410. 

V.  Reynolds,   189,   1651,  1656,  1657. 

V.    Shuler,    1573,    2017,    2018. 

V.   Taylor,    1904. 

V.  Van   Beuren,    24,  25,   27,   28. 

V.  Williams,   2115. 

V.   Wilmeth,    1879. 
Rhinelander  v.   Martin,   528. 

V.  Seaman,  298. 
Rhines  v.  Baird,  904. 
Rhode    Island    Hospital    Trust    Co.    v. 

Hayden,   1183. 
Rhodes  v.  Baird,  392. 

V.   Purvis,   361,    546. 

V.  Seidel,  559,  562,  568,   575,  583. 
Rhodes  Furniture  Co.  v.  Weedon,  230, 

261,   1432,    1478. 
Rhodius    V.    Johnson,    671,    672. 
Rhone  v.   Gale,   862. 
Rhyne  v.   Guevara,   495,   876. 
Rice  V.  Baker,  1292. 

V.   Bliss,   1980. 

V.    Brown,    347,    363. 

V.    Dudley,    1258,    1259,    1260,   1261, 
1275,   1339. 

V.    Enwright,    302. 

V.    Loomis,    1138. 

V.  Trustees  of  Boston  University, 
646,   672. 

v.  Whitmore,    422,    344,    549,    550. 
1294. 

V.    Whitley,    612. 

v.  Whitney,   608,   610. 
Rich  v.   Basterfield,   677,   678. 

V.   Bolton,  105,  126,  129,   130,   1422. 

v.  Frank,  1132. 

V.   Hobson,    1952. 

V.  Keyser,   1420,    1433,   1748. 

V.   N.   Y.   Cent.   R.  Co.,  593. 

V.    Rose,   1768. 

V.  Smith,  1210. 

V.    Wooley,    2055,    2056,    2360. 
Richards    v.    Bestor,    3&4,    1852,    1909, 
1958. 

v.   Bluck,   786. 

v.  Gauffret,  21. 

V.    Holditch,    434,    446. 

v.    Knight,   1645. 

V.   LaTourette,   1847. 


TABLE  OF  CASES. 


2245 


[refekences  are  to  pages.] 


Richards  v.  McGratfi,  2031,  2062,  2064, 
2065,    2079,   2083. 

V.     Redelsheimer,     231,     234,     242, 
243,    383,   1313. 

V.    Snider,    267. 

V.  Torbert,    709,    748,    784. 

V.  Wardwell,  189,  1648,  1652,  1654, 
1664. 

V.    West    Middlesex    Waterworks 
Co.,   2089. 
Richardson  v.  Ardley,  1624. 

V.  Baltimore  &  D.   B.   R.   Co.,   321. 

V.  Bates,  278,   279. 

V.    Bigelow,    2108. 

V.  Blakemore,    1932,    1960. 

V.  Callihan,   1815. 

V.   Copeland,   1582. 

V.  Evans,   934,  935. 

V.   Gilford,    251,    382. 

V.  Gordon,  845,   1178. 

V.   Hadsall,   419. 

V.  Koch,  1602. 

V.    Langridg-e,   105,    126,   129,    130. 

V.  McLaurin,  1898. 

V.  Palmer,   289. 

V.  Peterson,   1931,  1963. 

V.  Richardson,  216,  219,   270. 

V.  Smith,  1545. 

V.    Sydenham,    1550. 

V.   Thornton,   306. 

V.  Vice,   2052,   2068,  2087. 

V.  York,   737. 
Richmond    v.    Cake,    1158,    1908,    1920, 
1955. 

V.    Connell,   184. 

V.   Davis,  206,   211,  1694. 

V.   Duesberry,   1902,    1928,   2015. 

V.  L.ee,    575. 

V.    Stable,    1810. 
Richmond  Ice  Co.  v.   Crystal  Ice  Co., 

756,    765,    1213,   1214. 
Richmond      &      Lexington      Turnpike 

Road  Co.  V.   Rogers,   308,  1857. 
Richey  v.   Dupre,    1652. 
Richie  v.  McCauley,   1249. 
Rickard  v.   Dana,    365,  918,   957. 
Rlckards   v.    Rickards,    1520. 
Ricketts  v.  Garrett,  1163,  1298. 

V.   Richardson,   1756. 

V.   Weaver,   356,    901. 
Rickey  v.  Hinde,   1859. 
Ricou  v.  Hart,  855. 
Riddle    v.   Dow,    1654,    1661. 

V.  Hodge,    13,    1952,    1953, 

V.  Llttlefield,    272,    819. 

V.   Welden,   2011. 
Rider  v.  Clark,   687. 


Ridge     V.      Railroad     Transfer      Co., 

2098,   2103. 
Ridgeley    v.    Stillwell,    128,    129,    133, 

134,    245,    1035. 
Ridgeway     v.     Hannum,     1488,     1631, 

2965,   2084. 
Rieger  v.  Welles,  546,   1150,   1736. 
Rigby  v.   Bennett,   820. 
Rigg  V.   Cook,    9,   16,   17. 

v.  Gray,    575,    2039,   2040. 

V.  Pursell,    921,    925,    930. 

V.  Whitney,    1899. 
Riggins    V.    Ford,    2049,    2088. 
Riggs,  In  re,  930. 
Right  v.   Beard,   113,   307. 

V.  Cuthell,    1438. 

v.   Darby,    131. 

V.  Proctor,    24. 
Riglander    v.    Nile    Tobacco    Works, 

1812,  1813. 
Riley  v.  Hale,  519,  535,  542,  547,  1844. 

V.  Jordan,  302,  314,  1728. 

V.  Lally,    1264. 

V.   Pettis,  585,  599,  833,  1245. 

V.  Renick  Mill  Co.,    1908,   1949. 

V.  Simpson,    679. 
Rinehart  v.    Olwine,   1654. 
Rinfret   v.    Ai'rnda,.   1403. 
Ring's  Estate,  In  re,  139. 
Rinoldi   v.   Hudson   Guild,    740. 
Rlpka    V.    Sergeant,    2106,    2110,    2112, 

2113. 
Ripley  v.  Cross,   278. 
Riscley    v.     Rylle,     1249,     1251,    1252, 

1254. 
Rising  V.  Stannard,  112,  115,  145,  406. 
Rising    Sun    Lodge    v.    Buck,    896. 
Ritzier  v.   Raether,  1351. 
Rives    V.    Nesmith,    461,    502. 
Rivis  v.    Watson,    1066,    2001. 
Roach   V.    Cosine,    320,    322,    1729. 

V.   Peterson,     1214,    1217. 
Roads    V.    Trumpington,    7,    14,    34. 
Robb  V.    San   Antonio   St.   R.   Co.,   105, 

231,    240,    254. 
Robbins  v.   Atkins,  637. 

V.   Conway,    1390,    1397. 

V.  Jones,   557,    650. 

V.  Voss,  1889. 

V.  Webb,   890. 
Robelen  v.  National     Bank     of     Wil- 
mington,  2025,   2027. 
Roberson  v.  Simons,  1432.  1437,  1482. 
Roberts    v.    Armstrong,    219. 

V.  Barker,    788. 

V.   Brett,  342. 

V.  Cotty,  575. 


2246 


TABIxB  OF  CASES. 


[EEFERENCES 

Roberts  v.  Freeborn,  760. 

V.   Geis,    960,    14  09. 

V.   Gritbb,    3  420,    1453. 

V.   Hayward,   1490. 

V.  Holland,    902,    903,    1832,    1833. 

V.   Jacks,    1923,    1966. 

V.  James,   2112. 

V.  Jones,    788. 

V.  Kain,    1808. 

V.   Lynn    Ice    Co.,    27,    1191. 

V.  McPherson,     73,    76,    887,    1733, 
1806. 

V.   Sims,  844,  1908,   2001. 

V.  Tennell,  229,   249,   254,   255,   819, 
1990,    2089. 
Robertson  v.   Blddle,  494,   469,   509. 

V.   Birdie,  1726. 

V.  Hayes,    55. 

V.  Meadors,    729. 

V.  St.  John,  1522. 
Robey  v.  Prout,  1402. 
Robinson   v.   Allegany   County,    852. 

V.   Beard,    1551. 

V.  Crimmins,   670. 

V.  Deering-,  1074,   1891. 

V.  Henaghan,    1235,    1286,    1290. 

V.   Hofman,    1087,    2043. 

V.   Holt,   501,   1478,    1958,    2D94. 

V.  Jewett,    1558. 

V.  Keteltas,    1713. 

V.  Kilvert,    532. 

V.  Kruse,  1626,  1627. 

V.  Learoyd,  1498,  1500. 

V.  L'Engle,  1191. 

V.   Lehman,    Durr    &      Co.,       1918, 
1937,    1941. 

V.  Perry,   887,   918,   1689,   1691. 

V.   Ryan,    1900. 

V.   Troup  Min.   Co.,    509. 

V.   Waddington,    2063,    2084. 

V.  Walker,    345. 

V.   Walter,    2011. 

V.  Wheeler,    732,   742. 

V.  White,   2058. 

V.   Wright,    1569,    1581. 
Robson  V.   Cofield,  1727. 

V.   Palace   Chambers    Co.,    533. 
Robrecht  v.  Marling's  Adm'r,  544,  o48, 

549,   1291,   1294. 
Roche  V.    Sawyer,    653,    669. 
Rocke  V.  Hills,  2087. 
Rockinghajn    v.     Penrice,     1083,    1104, 

1105. 
Rockport  V.  Rockport  Granite  Co.,  30. 
Rockwell  V.   Bradley,    32l. 

V.  Luck,  408.  1503. 
Rodgers   v.    Black,    1912. 


AEB  TO  PAGES.] 

Rodgers   v.   Earle,   1778. 

V.   Palmer,   1779. 

V.   Parker,    2084,   2087. 
Roden  v.   Eyton,   2063,   2081. 
Roe  V.  Archbishop  of  York,  1315,  1318, 
1326. 

V.   Conway,    1316. 

V.   Davis,    1379,    1380,    1413,   1427. 

V.   Galliers,   94,  931,   1375. 

V.   Harrison,    922,   932,    934,   1387. 

V.  Hayley,   76,   85,  887,    901. 

V.   Lees,    129. 

V.   Paine,    1401. 

V.    Pierce,    1439. 

V.   Prideaux,    127. 

V.   Sales,    926,    928. 

V.   Street,   1440,   1457. 

V.   -U^ard.   400.    401.    1079,   1451. 

V.  Wiggs,  1440,  1741. 
Roe  d.  Parry  v.   Hodgson,   218. 
Roehrs  v.  Timmons,  575,  583. 
Roesch   V.    Johnson,   860,   861. 
Roffey  V.  Henderson,   1578,   1582,  1592, 

1623. 
Rogers  v.   Babcock,   1241,   1242. 

V.   Benton,    325. 

V.   Birkmire,    2025. 

V.   Boynton,   177,  501. 

V.   Brooks,   7,   2115. 

V.   Cox,   22. 

V.  Coy,   195,  1855,   1876. 

V.  Dickey,    2020. 

V.  Dickson,    2109. 

V.   Frazier,   189. 

V.   Grote   Paint     Co.,     1208,      1286, 
1761. 

V.   Hackett,   1747. 

V.  Hill,  107,  310,  490,  499,  804,  822. 

V.  Humphreys,   410,   412,  872,   2084. 

V.    Libbey,    1857. 

V.  Lynds,  1383,  1755,  1758,  1790, 

V.   McGuffey,   551,   544. 

V.   McKenzie,    843. 

V.   Pitcher,    473,    485. 

V.  Prattville  Mfg.  Co.,  1564. 

V.    Snow,   1207. 

V.    Sorell,   634. 

V.  Vaughan,  1&65. 

V.   Wheaton,    245. 

V.  Wiggs,   1857,  1863. 
Roginsy  v.  Grantz,   74,  1752. 
Rohrer  v.   Babcock,   1658,   1660. 
Rolfe  V.  Harris,   1410. 
Rolfe  &  Rumford  Asylum  v.  Lefebre, 

1524. 
Rollason  v.  Leon,  258,  276,  373,  376. 
Rollins  V.  Moody,  1172,  1333,  1437. 


TABLE  OF  CASES. 


224Z 


[BEIFBRBNCSS 

Rollins  V.  Mooers,  1672. 
V.   Proctor,    1935,    1942. 
V.  IMley,    27. 
Rolls  V.   Miller,    801,   889. 
Rolph   V.    Crouch,    524,  534. 
Rolt  V.   Somervill-e,   731. 
Romano  v.  Bruck,   302,   1206,   1216. 
Romero  v.   Dalton,   1649,   1651. 
Ronalclson   v.   Tabor,  491. 
Rooney  v.   Crary,   1613.  , 

V.   Gillespie,   91. 
Roosevelt   v.   Hopkins,   926,   927. 

V.  Hungate,    1419. 
Root  V.    Trapp,    1102. 
Roper   V.   Bumford,    1088. 
Rorbach  v.  Crossett,  1437,   1474,  1488. 
Rorer  Iron   Co.   v.  Trout,   294. 
Rorke  v.    Errington,    268. 
Rose  V.   Buscher,  1649. 

V.  Davis,   455,  486,   487. 
V.   Wynn,   546,   548. 
Rosen  v.   Rose,   236,   262,  1518. 
Rosen baum  v.  Gunter,  299. 
Rosenberg-  v.    Sehoolherr,    671. 
v.   Shaper,    1932,    1956. 
v.   Sprecher,    1477,    1857. 
V.   Zeitchik,    614. 
Rosenberger  v.  Hallowell,   2024. 
Rosenblatt  v.  Perkins,  120,  245,  1428. 
Rosenbloom  v.  Finch,  781,   1287. 

V.   Solomon,    1242. 
Rosenburg   v.    Lustgarten,    1477. 
Rosenfield  v.  Arrol,  793. 
V.  Nevs^man,    646. 
v.   Silver,    393. 
Rosenau  v.  Syring,  1582,  1623. 
Rosenquest    v.    Noble,    1810,    1811. 
Rosenstein  v.  Cohen,   577. 

V.   Forester,   2039. 
Rosenthal  v.  Freeburger,  261,  388. 
Roseville  Alta  Min.  Co.  v.  Iowa  Gulch 

Min.    Co.,    1566. 
Ross  V.    Campbell,   1571,   1576. 
v.   Cobb,    216. 
V.   Dysart,    506,    507,    508,   519,    520, 

1299. 
V.  Gill,    218. 

V.  Gray  Eagle  Coal  Co.,  1745. 
V.  Kern  an,    505. 
V.   McManigal,    16,   17. 
V.   Schneider,  954,  957,  1315. 
V.   Stockwel],   687. 
V.   Swaringer,    1654. 
V.  Worsop,    1533. 
V.   Zuntz,    1706. 
Rosseel  v.  Jarvis,  1355. 
Rosser  v.   Harris,   2'60,   263. 


AEB  TO  PAGES.] 

Rosslter  v.  Miller,  384. 
Roswell  V.  Prior,  680,  684,  686.  792. 
Roth  V.  Adams,  528,     531,     556,     1235, 
1263. 
V.  Collins,    1567,    1572,    1576. 
V.   Williams,    1908. 
Uotherey  v.   Wood,   1255. 
Rothman  v.  Kosower,  550,  554,  1736. 
Rothschild  v.  Hudson,  972,  974. 

v.   Williamson,    132,    137,    1484. 
Rothwell's    Case,    424. 
Rotter  v.  Goerlitz,  573,  577. 
Rotzler  v.   Rotzler,    1949. 
Rouiaine  v.   Simpson,    943. 
RouiUon  V.  WiLson,   632,   633. 
Round    Lake    Ass'n    v.    Kellogg,    800. 

890. 
Roundwood  Colliery  Co.,   In  re,   2d25. 
Roulston  V.    Clarke,   1053,   20i>0. 
Rous   V.   Artois,    143. 
Rouse's  Case,    143,   150,    152. 
Rousey   v.    Mattox,    1936. 
Roush   V.   Emerick,   1659. 
Roussel   V.    Kelly,    1769. 
Roussinet  v.    Rebout,   598. 
Rowan  v.  Kelsey,  222. 

v.   Lytle,    154,    464,    1315,   1434. 
Rowbotham  v.  Pearce,  919,  1281,  1285. 
Rowe   V.    Baber,    598. 

V.   Williams,    1037. 
Rowell    V.    Fellker,    1011,    2093. 

V.   Klein,    1648. 
Rowland  v.    Dillingham,   469,    1788. 

V.   Goldsmith,    1251. 
Rowlands    v.    Voechting,    27,    39,    186, 

1627,    1654. 
Rowley  v.    Adams,    1132. 

V.  Wilkinson,   462. 
Roxburghe  v.  Roberton,   1614. 
Roxbury  v.  Huston,   181,   490,  1864. 
Royce     v.     Guggenheim,     1157.     1162, 
1260,    1261,    1264,    1279,    1282. 
V.  Latshaw,  1572,  1573,  1574,  1591, 
1596,    1616,    1617. 
Royer  v.   Ake,    1850,    2045. 
Royse   v.    May,    2078. 
Rubel  v.   Avritt,  1924. 
Rubens    v.    Hill,    289,     573,     604,    605, 

1237,   1238,    1262,   1824. 
Rubenstein   v.   Hudson   642. 

v.  Rosentahl,    1741. 
Rubery   v.    Jervoise,    1532. 
V.   Stevens,    979,    1133. 
Rubicum   v.    Williams,    1174. 
Rubottom    v.    Morrow,    1119. 
Rucker   v.   Tabor,    1339. 


2248 


TABLE  OF  CASES. 


[HEFEKENCES  AEE  TO  PAGES.] 


Rudd    V.    Ford,    1920. 
Ruffington   V.  Hillcy,    2045. 
Rug-gles  V.  Holden,   1146. 
Rumball   v.    Wright,    1864. 
Rundell  v.   Lakey,  524. 
Rush  V.  Aiken  Mfg.  Co.,  1506,  1510. 
Rushden's  Case,  1123. 
Rushworth's  Case,  1557. 
Russell,    In    re,    995. 
Russell    V.    Allard,    509,    1405. 
V.  Allen,    8173,    1107. 
V.   Coggins,    71. 
V.  Dory,   1249,   1251,    2039. 
V.  Erwin's  Adm'r,    171,   492. 
V.  Fabyan,   114,  145,  147,   151,  156, 
436,     1074,    1093,    1163,    1164, 
1301,    1495,    1822. 
V.   Irwin's  Adm'r,  486,  489. 
V.   Killion,   1495. 
V.  McCartney,     70. 
V.  Moore,    1408. 
V.  New  Haven,    1705. 
V.  Rider,   2055. 
V.  Rush,    745. 
V.   Russell,    1725,   1727. 
V.   Shenton,    661,    679,    700.    701. 
V.   Stokes,    898. 
V.  Van   Fleet,   1739. 
Russo  V.  McLaughlin.   646,   672. 

V.  Tuzolino,    872,    1102,    1736. 
Rust   V.    Victoria   Graving  Dock   Co., 

2099,    2118. 
Russura  V.   Wanser,   417. 
Rutgers   v.    Hunter,    1520,    1542,    1695. 
Rutherford  v.   Graham,    56. 
Rutherford   Heirs  v.    Clark,    213. 
Rutland    Foundry    &   Mach.    Shop   Co. 

V.   King,   602. 
Rutland   Marble  Co.   v.   Ripley,   31. 
Rutledge    v.    Quinlan,    1240. 

V.  Walton,    1918. 
Rutter  V.    Smith,    1587. 
Ryal  V.   Rich,    1498,   1500. 
Ryan  v.  Clark,   290,  292. 

V.  Jones,     835,     1229,     1242,     1243, 

1264. 
V.   Kirkpatrick,    1754. 
V.  Marsh,    1858. 
v.  Mutual     Tontine    Westminster 

Chambers  Assn.,   768. 
v.  New    York    Cent.    R.    Co.,    641. 
v.  Pot-win,    302,    303, 
V.   Shilcock,    2054. 
v.  Wilson,  650. 
Rybicki   v.  KalisTi,  134. 
Ryder  v.  Faxon,   365,    1568,  1598. 
V.  Jenny,    1546. 


Ryder  v.  Kinsey,   693. 
v.  Mansell,    496,   497. 
V.   Robinson,    395,    1553. 
Ryers  v.   Farwell,  494. 
Ryerse   v.   Lyons,    1158. 
Ryerson  v.    Eldred,  449,  501. 

V.  Quackenbush,   1026,    1027,   1071, 
1104,    1110,    1250,    1254,    1820, 
1996. 
Ryerss  v.    Farwell,   1877. 
Rylands    v.    Fletcher,     624,     646,    647, 

648. 
Ryley  v.   Hicks,   234. 
Ryppon    V.    Bowles,    792. 


s. 


Sacheverell  v.  Frogate.  876,   885,  901, 

1028,    1119. 
Sachs  V.   Henderson,   2GS. 
Backet  v.  Wheaton,   1733. 
Sackett   v.  Barnum,    314,   1024. 

v.  Sackett,    725. 
Sadler  v.  Jefferson,   322. 
Sadlier  v.  Riggs,  1860. 
Saffer    v.    Levy,    753. 
SafCyn    v.    Adams,    422. 
Saffyn's  Case,    292. 
Sage  v.  Halverson,  181,  475. 

V.  Harpending,    1509. 
Saint  V.  PiOey,   1349,   1622. 
St.   Albans  v.   Ellis,   341. 
St.   Anthony  Falls   Water  Power   Co. 

V.    Morrison,    456,    459. 
St.    Clair   v.    Sedwick,    730. 
St.     Cross     Hospital     v.     de  Walden, 

1016. 
St.  John  V.  Quitzow,  494,  509. 

V.  Swain,   1642. 
St.  John's  College  v.  Murcott,  2020. 
St.    Joseph    Hydraulic    Co.    v.    Tissue 

Paper  Co.,   384,   388,   394,   395. 
St.  Joseph  &  St.  L.  R.  Co.  v.  St.  Louis, 
754. 
V.   St.  Louis  I.  M.  &  S.  R.   Co.,  45, 
908,    909,    1134. 
St.    Louis   V.    Nelson,    1594. 
St.    Louis    A.    &    T.    R.    Co.    v.    Trigg, 

2099, 
St.  Louis  Brew.  Ass'n  v.  Niederluecke, 

372,    376,    1744. 
St.   Louis,    I.   M.    &    S.    R.    Co.    v.   Hall, 

105,   1628,   2124,   2125,    2129. 


TABLE  OF  CASES. 


2249 


[REFEKENCES  ARE  TO  PAGES.] 


St.  Louis  Public  Schools  v.  Boatman's 
Ins.    &    Trust    Co.,    972,    975, 
986,   1127,   1129,  1821. 
V.  Hollingsworth,   268. 
St.  Louis  Type   Foundry     v.     Taylor, 

1921. 
St.  Louis  V.  &  T.  H.   R.  Co.  v.  Terra 

Haute  &  L  R.  Co.,   203. 
St.  Louis  &  C.  R.  Co.  V.  East  St.  Louis 
&   C.    R.    Co.,    221. 
V.  Hart,   1855. 
St.  Mary's  Church  v.  Miles,  1110,  1173, 

1849. 
St.  Michael's  P.  E.  Church  v.  Behrens, 

1227,   1228,    1281. 
Saint  Saviour's  v.  Smith,  776,  971. 
Salamon   v.    Sopwith,    209. 
Salas   V.   Davis,   1498. 
Sale  V.   Kitchingliam,   889,   901. 
Salina  State  Bank  v.  Burr,  1926,  1933, 

1934,    1944. 
Salisbury  v.  Hale,  1138. 

V.  Marshall,   557,   558,    1892. 
V.     Shirley,  853,  888,  969,  989,  1127, 
1823. 
Sallee  v.  Ireland,  1798. 
Salmon  v.  Blasier  Mfg.  Co.  1293. 

v.  Matthe-n-s,    1022,    1102. 
Salomon  v.  Weisberg,  372,  1778. 
Salop  v.  Crompton,   725,  742,   743. 
Saloy   V.  Bloch,    1940. 
Saltonstal   v.   Bunker,    675. 
Salvo   V.    Schmidt,    2034,    2053. 
Salzgeber  v.   Mickel,   84,   1278. 
Sammis   v.    Day,    1168. 

V.   Poole,    1966. 
Sampson  v.  Camperdown  Cotton  Mills, 
1582,  1584,  1585,  1586,  1589. 
V.   Easterby,  341,  771,  891,  900,  901. 
V.   Grogan,    742. 
V.  Henry,    1509. 
Samson  v.  Rose,   1406,  1635,   1641. 
Samuel  v.  Roberts,  1154. 

V.  Scott,   1231. 
San  Antonio  v.  French,  1491. 
San   Antonio    Brew.    Ass'n    v.    Brents, 

805. 
Sanborn  v.  Cree,  965. 

v.  First  Nat.    Bank,   169. 
V.  Haynes,    1860. 
V.  Hoyt,    273. 
V.  Randall,   1830. 
v.  Van  Duyne,  408,  409. 
Sanborn   Co.    v.   Marquette   Bldg.    Co., 

19. 
Sander    v.    Holstein    Commission    Co., 
1335,  1435. 


Sanders  v.  Bryer,   927,   928. 
V.  Davis,  1620. 

V.   Ellington,   1636,  1639,   1642. 
V.  Karnell,  382. 
V.  Ohlhausen,      1936,     1949,      1952, 

1953,    1955. 
V.  Partridge,  870,  956,  975,  992. 
V.  Pope,   1409. 
V.  Richardson,  313. 
V.   Smith,   593,   598. 
Sanderson    v.    Berwick,    524,    530,    oSG- 
V.  Graves,    383. 

v.   Kingston  Marine  R.  Co.,  2025. 
V.  Scranton,    33. 
Sandford   v.   Clarke,    122,   699. 
Sandill  v.  Franklin,  54. 
Sands   v.   Hughes,    452,    463. 

V.  Ledger,   1838. 
Saner  v.  Bilton,   14,  585,  599,  602,   607, 

707,  720,  744,  754,  759. 
San  Filippo  v.  American  Bill  Posting 

Co.,  28,  795. 
Sanford  v.  Harvey,   1448. 
V.  Herron,   169. 

V.   Johnson,  105,  284,  1422,  1884. 
V.  Modine,  1965,   1976. 
Sanford's  Appeal,   839. 
San  Francisco  v.  McGinn,  841. 
San    Francisco    Breweries    v.    ScTiurtz, 

1583. 
Sanger  v.  Magee,  1977. 
Sanitary  District  of  Chicago  v.  Cook, 

1593,   1594. 
San  Reno   Hotel  Co.   v.   Brennan,   603. 
Sapp  v.  Elkins,  1998. 
Sapsford  v.  Fletcher,  2037,  2087. 
Saratoga  European  Hotel  &  Restaur- 
ant Co.  V.  Mossier,   836. 
Sargent  v.  Adams,  268. 
V.   Ashe,    1890. 
V.   Courrier,    1654,    1662. 
V.  Pray,  856. 
V.  Smith,  1494,  1804. 
V.  Stark,    696. 
Sarsfield  v.  Healy,  105. 
Sarson  v.  Roberts,  571. 
Sartwell  v.  Sowles,   241. 

V.   Young,    439. 
Sassman   v.    Brisbane,   2089. 
Saterfleld  v.  Moore,   1902. 
Satterlee   v.   Matthewson,   457. 
Sauer  v.  Meyer,  1362,  1386,  1397. 
Saulsbury  v.  McKellar,  1918,  1961. 
Saunders  v.  Merryweather,  421,  897. 
V.  Moore,   471,   472. 
V.  Musgrave,  313,  1868. 
V.  Pawley,  561. 


2250 


TABLE  OF  CASES. 


[eeferences 

Saunders*  Case,  709. 
Saunderson   v.   Hanson,    842,    2037. 
Sausser  v.   Steinmetz,    393. 
Savage  v.  Carney,   1782. 

V.   Foster,    388. 
Savell  V.  Cordell,  61. 
Savings  Bank  v.  Getchell,   1009. 
Savings  &  Loan  Soc.  v.  Gerlchten,  575. 
Savory   v.    Stocking,    1189. 
Sawer  v.   Hardy,   69. 
Sawtelle  v.   Drew,   576. 
Sawyer  v.   Hanson,   163. 

V.   McGillicuddy.   620,  631,   640. 

v.   T^iss,    987. 
Say   V.   Smith,    57,   61,    63,   66. 

V.   Stoddard,  105,  113,  115,  127,  129. 
Sayers  v.  Hoskinson,  710,  712,  713. 
Sayles  v.  Kerr,  939. 
Scaife  v.  Stovail,  1922,  1932. 
Scales   V.  Anderson,   1857. 

v.   Lawrence,    757,    780. 
Scaltock  V.  Harston,  873. 
Scarth    v.    Ontario    Power,    etc.    Co., 

1600,    1605. 
Schaefer  v.  Henkel,  357,  1830. 
Schaer  v.  Bibb,   1565. 
Schaltz    V.    Noithwesiern      Mut.      Life 

Ins.  Co.,  378. 
Schanda   v.   Sulzberger,   582. 
Schaperia  v.    Barney,   1600. 
Schaupp   V.   Hukill,    1402. 
Schedlinsky   v.    Budweiser   Brew.    Co., 

303. 
Scheerer  v.  Dickson,   745. 
Scheldt  V.  Belz,  783,  880,  1115,  1669. 
Scheifele  v.    Irving,    1791. 
Schelky  v.   Koch,   1337. 
Schell  v.   Simon,  1100. 
Schellenberg  v.    Detroit     Heating     & 
Lighting  Co.,  1568. 

V.  Frank,    1806. 
Schenck  v.  Stumpf,  493. 
Schenkel   v.    Lischinsky,    908,    918. 
Schenley's   Appeal,    2018. 
Scherer  v.   Cuddy,   283. 
Schermerhorn  v.  Buell,  737,  2116. 

V.   Gouge,    300. 
Schiavone  v.  Callahan,  581. 
Schick    V.    Fleischauer,    588,    593. 
Schickedantz  v.   Rincker,   1489. 
Schieffelin     v.      Carpenter,      767,      781, 

1322,  1323,   1346. 
Schields   v.   Horbach,    496. 
Schiff  V.  Pottlitzer,   575,   583,   623. 
Schilling  v.   Holmes,    1300,    1439,    1466, 
146S,    1492,    1498,    1499. 

V.  Klein,  1482. 


AHE  TO  P.\GEa.] 

Schlaich   v.    Blum,    1737. 

Schlemmer  v.   North,   1569,   1579,  2128, 

2129. 
Schlicht  V.  Callicott,   187,   189, 
Schlitz  Brew.  Co.  v.  Neilsen,  812. 
Schloss  V.   Huber,   127,  133. 
Schlumpf  V.  Sasake,   393. 
Schmalzried  v.  White,  650,  652. 
Schmidt  v.  Constans,   407. 
V.  Cook,   632,    665,    666. 
V.   Pettit,    97,    270,    764,    777,    1196, 
1206,    1208. 
Schmltt  V.    Cassilius,    1652,    1666. 
Schmitz  V.  Lauferty,  236,  1517. 
Schmoele  v.   Betz,    2125,   2128. 
Schmusch   v.   Kohn,    1808. 
Schnable   v.   Koehler,   2117. 
Schneider  v.    Curran,   1478. 
V.  Leizman,    1790. 
V.  Lord.    245,    247,    1482. 
V.  Patterson,  268,  1276. 
V.  White,    1026. 
Schnittger  v.   Rose,   1774. 
Schoellkopf      v.      Coatesworth,      1369, 

1542.   1700,   1702,   1704. 
Scholtz  V.     Northwestern     Mut.     Life 

Ins.  Co.,   385,    395. 
ScTiolz  V.  Dankert,   365. 
School  District  No.  11  v.  Batsche,  334, 

336. 
Schoolfield  v.   Rhodes,   312. 
Schoppel  v.  Daly,  581. 
Schott  v.   Burton,  498,  499. 

V.  Harvey.   673. 
Schrage  v.  Miller,   752. 
Schreiber  v.  Chicago  <%:  E.  R.  Co.,  2131. 

V.   Goldsmith,   1718,   1725. 
Schreiner  v.  Stanton,  136,  1737. 
Schroeck  v.    Reiss,    690. 
Schroeder    v.    Gemeinder,    1675,    1679, 
1682. 
v.   King,    804. 
V.  Tomlinson,    1753,    1792. 
ScTiuck   V.    Schwab,    1531. 
Schuisler  v.  Ames,  1338. 
Schulenberg    v.    Uffelmann,    1167. 
Schulting    V.    Schulting,    745. 
Schultz  V,   Burlock,  346. 

V.   Elliott,  475,   483. 
Schumacher   v.   Pabst   Brew.   Co.,    284. 
Schumann    Piano    Co.    v.    Mark,    1718, 

1757. 
Schuricht  v.   Broadwell,   1809,    1851. 
Sc'hurz  V.  McMenamy,    1930. 
Schutz  V.   Corn,    14,   1209 


TABLE  OP  CASES. 


2251 


[REFERENCES  ARE  TO  PAGES.] 


Schuyler  v.  Leggett,   250,     255,     1990, 
1991. 

V.   Smith,   1471,   1472,  147r. 

V.   Trefren,    1793. 
Schuylkill  Nav.  Co.  v.  Richards,  675. 
Schuylkill  &  D.  I.  R.  Co.  v.  Schmoele, 

16,    537. 
Schwalbach   v.    Schinkle,      Wilson     & 

Kreis    Co.,    650,    652,    680. 
Schwandt   v.     Metzger     Lindseed      Oil 

Co.,    629,    666. 
Schwartz  v.  Brucato,   1340. 

V.   Locket.  522. 

V.  McQuaid,    7,    12,    405. 

V.  Monday,    626,    633. 
Schwartzwelder  v.  U.  S.  Bank,  286. 
Schwarze  v.   Mahoney,  166. 
Schwarzler    v.    McClenahan,    1479, 
Schweig  V.   Manhattan     Leasing     Co., 

369. 
Schwoebel  v.  Fugina,  7354,   1491,  1871, 

1872. 
Schwoerer  v.  Connolly,  70. 
Schwulst  V.  Neely,   1673,   1953. 
Scobie  V.   Collins,   320,   323. 
Scofield   V.  McNaught,   314. 
Scoggins   V.    Thompson,    1955. 
Scot  V.   Scot,   1378. 
Scott   V.   Bay,    679. 

V.   Beecher,   1336,   1337,  1477. 

V.  Berry,   1992. 

V.   Buckley,    2055. 

V.  Haverstraw   Clay  &  Brick  Co., 
760,     775,    780. 

V.   Hawsman,   254. 

V.  Lance,  1824. 

V.  Lunt's    Adm'r,    353,    964,     1110, 
1132. 

V.  McEwen,    2086. 

V.  Montells,  1981. 

V.   Pound,    1912. 

V.   Ramsey,    1654. 

V.   Renfro,   1906,   1929,  1932. 

V.   Richardson,  1808. 

V.   Russell,    2019,   2047. 

V.   Scott,  1275. 

V.   Slaughter,    949. 

V.   Society    of    Russian    Israelites, 
847. 

V.  Willis,   69,   1419,   1504,   1752. 
Scott  Bros.  V.  Flood's  Trustee,  1215. 
Scotten   V.    Brown,    232. 
Scrantom  v.   Booth,    1889. 
Scrogglns  v.   Foster,  1918. 
Scruggs   V.    Gibson,    184,      1995,      1999, 
2048. 


Scruggs  V.  Memphis  &  C.  R.  Co.,  1710, 

1712. 
Scully  V.  Murray,  245. 

V.  Porter,    1903,    1925,    1930,    1932, 
1963. 
Seaboard    Realty   Co.    v.    Fuller,    1264, 

1301,   1303. 
Seabourne  v.   Powel,   1558. 
Seabrook  v.  Moyer,  1148,  1165,  1296. 
Sealy  v.  Kuttner,  948. 
Seaman  v.  Ascherman,   389,  394. 

V.   Browning,  523. 

V.  Civill,   82. 

V.  Wright,   1828. 
Sear  v.   House  Prop.  &  Inv.   Soc,   934 
Searle  v.  Cook,  1110,  1819. 

V.   Powell,   1446. 
Sears  v.  Smith,  231,  235. 
Seaton   v.   Booth,    1868. 
Seattle    Operating   Co.    v.    Cavanaugh, 

1718. 
Seattle   &  M.    R.   Co.  v.    Schelke,    2131. 
Seaver  v.  Cobum,  360,  945,  946. 

V.   Thompson,   289,    1548. 
Seavey  v.  Cloudman,  115,  1423,  1424. 
Seaward  v.  Drew,   86. 
Sebastian  v.  Hill,  133. 
Second  National  Bank  v.   MerriH,  129, 

1597. 
Secor  V.  Pestana,  1418,   1460,   1486. 
Secrest  v.  Stivers,   1663,  1905,   1906. 
Security  Loan  &  Trust  Co.  v.  William- 
ette  Steam  Mills  Lumbering  &  Mfg. 
Co.,    1574,   1590. 
Security  Trust  Co.  v.  Liberty  Building 

Co.,    851. 
Sedalia  Planing  Mill  &  Lumber  Co.  v. 

Swift,    617,   1192. 
Sedberry  v.  Verplanck,  535. 
Seedhouse  v.  Broward,   1566,  1618. 
Seeg«r  v.  Pettit,  1563,  1567,  1569,  157S, 
1577. 

V.   Smith,    1755. 
Seeley  v.   Alden  2110,   2118. 
Seem  v.  McLees,   1749,  1751. 
Seers  v.  Hind,   932. 
Sefton  V.  Juillard,   1302,   1303. 
Segal  V.  Ensler,  799. 
Seidel   v.   Bloeser.    222. 

V.   Sperry,  1743. 
Seigel  V.  Neary,   1265,  1767. 
Seigel    Cooper    Co.    v.    Colby,    65. 
Seigling  v.   Main,   2012,   2019. 
Seisel  v.   Folmar,    1926,    1927. 
Seitz   V.    Miles,    1508. 
Seitz   Brewing  Co.    v.   Ayres,    301. 
Seltzinger   v.    Marsden,    1613. 


2252 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Selby  V.  Greaves,     1021.     1046,     1196, 
1J97,    2001. 
V.  Robinson,    909. 
Selden  v.  Camp,  1534,  1538. 
Seldon    v.    Buchannan,    1324. 
Selecman   v.    Kinnard,    1936. 
Sell    V.    Branen,    1375. 
Sells  V.  Hoare,    2082. 
Semaynes'   Case,    2054. 
Semmes  v.  McKnight,   844. 
Senior  v.  Armytage,  785,  1638. 
Sennett  v.  Bucher,  291. 
Sequard   v.   Corse,    298. 
Serfling   v.   Andrews,   548,    549,   550. 
Sergeant    v.    Nash,    Field    &    Co.    516, 

1401. 
Sergent   v.    Pray,    854. 
Perlo   V.    Murphy,   576. 
Sessinghaus   v.    Knooke,   1334. 
Settle  V.  Henscn,  439,  501. 
Sevier   v.    Shavsr,    1906,    1927,    1936. 
Sewell  V.  Moore,   631,   674. 
Sexton  V.   Breese,  1646. 
V.  Carley,    486,    501. 
V.  Chicago   Storage   Co.,    908,    909, 

910,    912,    939,    2014. 
V.  Hull,    330. 
Seyfert   v.    Bean,    288,    1988. 
Seymour  v.   Hughes,   1056,  1232,   1325, 
1327. 
V.  Plcus,   753. 
V.  Warren,   37,  335. 
Shaaber   v.   Reading,   156. 
STiaber  v.   St.  Paul  Water  Co.,   890. 
Shackford    v.    Coffin,    559,    562. 
Shadwell   v.   Hutchinson,   2107,   2112. 
Shaffer,  In  re,  981. 
Shaffer  v.   Sutton,  45,   1724,   1744. 
Shaft  v.  Carey,   519,  531,   821,   826,  830, 

831. 
Shafter    Estate    Co.    v.      Alvord,      25, 

1571. 
Shahan   v.    Herzberg,   1331,    1332,   1630. 
Shakespeare    v.    Alba,    239,    240,    261, 

263,   384. 
STiamp   V.    White,    1532,    1535. 
Shanahan  v.   Shanahan,   1473,   1477. 
Shand   v.  McCloskey,   962,    1139. 
Shanfelter   v.   Horner,    1369,   1379. 
Shanks   v.    Greenville,    1248. 
Shannon    v.    Bradstreet,    387. 
V.  Burr,    8,   12. 

V.   Grindstaff,   918,  921,   1002,   1385, 
Shapira  v.   Barney,   1569,   1582,   1621. 
Sharks    v.    Walton,    494. 
Sharp  V.  Fields,   1905. 

V.  Kinsman,   1509,  1630. 


Sharp  v.  MlUigan,   1593. 

v.  Palmer,    1958. 
Sharpe    v.    Mathews,    1729. 
Shattuck    v.    Lovejoy,    922,    939,    1133. 

1368,    1401. 
Shaw   v.    Bowman,    1630,    1638. 
v.   Coffin,   938,  1364. 
v.  Cummiskey,  28. 
V.   Farnsworth,     372,     376. 
V.  Hill,    113,    466,    1009,    1015. 
v.  Hoffman.    71,      81,      1293,      1295, 

1420. 
V.  Kay,    50. 
V.  Lomas,    1168. 
v.  McCarty,   1755. 
V.  Mayer,    1628. 
V.  Partridge,    962,    1101. 
V.  Wallace,     31. 
Shawmut    Nat.    Bank    v.    Boston,    97, 

222,  1196. 
Shea    V.    McCauliff,    1105. 

V.   Seelig,   285. 
Sheaff  V.   Husted,   175. 
Sheaffer  v.   S'heaffer,    1402. 
Shealey   v.   Clark,    1961,    1964. 
Shean  v.   Withers,    109. 
Shearer  v.  Winston,  483. 
Sheary  v.   Adams,    1237,   1238. 
Pheble   v.   Curdt,   1978. 
Shedlinsky    v.    Budweiser    Brew.    Co., 

302. 
Shee    V.    Gray,    950. 
Sheelian    v.    Coyle,    1159. 

V.  Hamilton,    1166. 
Sheehan    &    Co.    v.    Maison    Barberls, 

642,   793. 
Sheehy  v.  Muskerry,   404. 
Sheer  v.    Fisher,   744. 
Sheerer  v.   Cuddy,   865. 
Sheets  v.    Allen,    31. 
v.  Joyner,  524,   535. 
V.   Selden,    617,      895,      1408,      1411, 
1414. 
Sheetz  v.   Baker,   2002. 
Sheffield    &     South    Yorkshire    Bldg. 

Soc.   V.   Harrison,    1563. 
Shelburne  v.  Biddulph,  1551. 
Shelby  v.   Hearne,   783,   887,    899,   1794. 

V.  Moore,    1931. 
Sheldon  v.  Davey,  126. 

v.   Hamilton,   857,    858. 
V.   Skinner,    1653. 
V.  Testera,     1759. 
Shell  v.    West,   441,    468. 
Shellar  v.  Shivers,  1573,  1385,  1604. 
Shelton  v.  Carrol,  473. 

V.   Codman,   538,    887,   999. 


TABLE  OF  CASES. 


2253 


[REFERENCES 

Shelton  v.  Durham,  281. 

V.   Eslava,   437,   501,   516. 
Shepard    v.    Brig-gs,    1375. 
V.  Philbrick,  1646. 
V.   Spaulding-,  1317,  15S9. 
Shepardson  v.    Elmore,   463,    849. 
Shepherd   v.    Berger,    1382. 
V.   Cumming-s,  1477. 
V.   Sliker,    1786,    1792. 
V.  Taylor,    I960,     1962. 
V.  Thompson,     1746. 
Sheppard    v.    Rosenkrans,    1514,    1530. 

V.  Sheppard,   706. 
Sherburne  v.    Jones,    318. 
Sheridan    v.    Forsee,    642,    697. 
Sherlock    v.    Rushmore,    662. 

V.   Thayer,    1044. 
Sherman,   In   re,    930. 
Sherman    v.    Champlaln    Transporta- 
tion   Co.,    16. 
V.  Cobb.    1052. 

V.   Dutch,    2042,    2057,    2080,    2086. 
V.  Fall   River  Iron   Works,    2125, 

2126. 
V.  Ludin,    1224,    1233. 
V.   Spalding-,    495. 
V.  Wilder,    302,    303. 
V.  Williams,  269,  523,  1301. 
Shermer   v.    Paciello,   1351,    1392. 
Sherrill  v.  Connor,   719,   745. 
Sherry   v.    Schuyler,    2020. 
Sherwin   v.   Lasher,    1009,    1887. 
Sherwood  v.   Harral,   861. 
V.  Phillips,   1994,  2001. 
V.   Seaman,    576. 
Shew  V.    Call,  489. 
Shields     v.     Atkinson,     1924,     1934. 
V.  Kimbrough,    189. 
V.  Lozear,  466,   495. 
V.   Russell,   937. 
V.   Stillman,    1804. 
Shlllabear  v.   Jarvis,    388. 
Shillak  V.  White,   646 
Shimer   v.    Phillipsburg,    159. 
Shindelbeck  v.   Moon,  575. 
Shine    v.    Dillon,    951,    1883. 
Shiner  v.  Abbey,   1890. 
Shing  V.    Shire.    1981. 
Shinkle.   Wilson   &  Kreis   Co.    v.    Bir- 

ney,  565,  567. 
Shinn    v.    Guyton    &   Herington    Mule 

Co.,   SSI. 
Shipley  v.   Fifty  Associates,   272,   694, 

V.   Smith,    46,    193. 
Shipman  v.  Mitchell,   1486. 
Shlpwick    V.    Blanchard,    2076. 
Shirk  V.   Adams,    862,    941. 


ARE  TO  PAGES.] 

Shirk  V.  Hoffman,  1482,  1488. 
Shoemaker  v.  Crawford,  1659. 
Shoninger  Co.   v.  Mann,   629,  630,  633 

655,   665,   666,   672. 
Shoolbred   v.    Elliott,    1706. 
Shores   v.   Brooks,    8. 
Shcrey   v.    Farrell,    833. 
Shorman    v.    Eakin,    457. 
Short   V.    Piper,    732. 
Shoase  v.   Krusor,  iOlS,   1878. 
Shows   V.    Brantley,    1933. 
Shreve  v.  Hankinson,  220. 
Shrewsbury    v.    Gould,    341,    742     743 

747. 
Shrewsbury's   Case,    742,    743,    747, 
Shufeldt    V.    Gustin,    1142. 
Shufflin  V.   House,   402. 
Shult   V.    Barker,   737. 
Shultz  V.  Brenner,   544,  548,   549. 
V.   Elliott,   481. 
V.  Reddick,  2062,  2063,  2087. 
Shumake   v.   Nelms,   1858,   1864. 
Shuman    v.    Smith,    1290. 
Shumer   v.    Hurwitz,    911. 
Shumway  v.  Collins,   805,   919,   938. 
Shunick  v.  Thompson,  1804. 
Schusler    v.    Ames,    1158. 
Shuster   v.    Robinson,    2020. 
Shute  V.  Bills,  570,  576,   61D,   652,    654. 

660. 
Shutt  V.    Lockner,   1293,   1294. 
Shuttleworth    v.    Shaw,    1070. 
Shuver  v.   Klinkenberg,   1748. 
Shy  V.  Brockhause,  458,   1779. 
Sickels   V.   Shaw,    1041. 
Siddons    v.    Short,    820. 
Sidebotham    v.     Holland,    54,     63,    64, 

1326,   1445,   1446. 
Sidney  B.  Bowman  Cycle  Co.  v.  Dyer, 

1144. 
Sieber  v.  Blanc,  '579,  586. 
Siefke   v.    Kock,   946. 
Siegel,  Cooper  &  Co.  v.  Colby,  289. 
Sievers  v    Brown,    1866. 
Siggins  V.   McGill,   629. 
Siglar  V.   Malone,   329,    490. 
Sigler   V.    Gondon,   1851. 

V.   Murphy,    2096. 
Sigmund  v.  Howard  Bank,   546. 

V.  Newspaper    Co.,    347. 
Silber    v.    Larkin,    1292,    1304. 
Silberberg  v.  Trachtenberg,  887. 
Silsby    V.    Allen,    126,    1445. 

V.   Trotter,     31. 
Silva  V.  Bair,  392,  393,  799,  1308,  1343, 
1630. 
V.  Campbell,    138S,   1389,    1752. 


2254 


TABLE  OP  CASES. 


[HEFERHNCES  ARE  TO  PAGES.] 


Sllva  V.  Garcia,  713,  730. 

Sllvey  V.  Summer,  464,  495,  1778,  1779. 

Slmanek  v.  Nemetz,  866. 

Slmers    v.    Saltus,    414,    417,    418,    504, 

877.    1296,    1297. 
Slmkins  v.  Cordele  Compress  Co.,  758, 

770. 
Simmons  v.    Allison,    219. 
V.   Bolland,    354. 
V.   Fielder.   1922. 
V.  Jarman,    1363,    1445,    1485. 
V.  Kayser,    300. 
V.    MacAdaras,    92. 
V.  Norton.    708.    715. 
V.   Pope.    126,    1351. 
V.   Robertson.   177. 
Simon    Newman    Co.    v.    Lassing',    474, 

1778. 
Slmon-Riegel    Cigar    Co.    v.    Gordon- 

Burnham   Battery   Co..    793. 
Simonds   v.   Turner,    847.    976,   992. 
Sinionelly    v.    DiEricco.    1756. 
Simons    v.    Detroit   Twist     Drill      Co., 
1426. 
V.  Marshall,    460.    725.   1365. 
V.  New    Britain    Trust      Co..      229, 

260. 
V.   Seward,    624. 
Simonton   v.    Loring.    793. 
Simpkin    v.   Ashurst,    152. 
Simpkin    Simeon's    Case,    966. 
Simpkins   v.    Rogers.    1009.    1632,    1635, 

1640. 
Simpson  V.  Applegate,  114,  1357.  1424. 
V.  Clayton    SS7,    1004,    1550.    1551. 
V.  Gutterldge.    214. 
V.  Hartopp,  2007,   2018,   2019.   2080. 
V.  Howitt,    1082,    2033. 
V.  McDonald,     2016. 
V.  Masson,    1458,    1460. 
V.  Savage,   2108,  2111. 
V.  Titterell,    1364. 
V.  Westminster  Palace   Hotel  Co. 

201. 
V.  Woods.    302. 
V.  Wriglit.    22. 
Sims  V.  Cooper.   1354,  1357. 

V.  Humphrey.      318.      1724,      1728, 

1740.    1790.    1796. 
V.   Price.    1988. 
Sinclair   v.    Jackson,   212.    404. 
Singer    v.    Sheriff,    1379. 
Singer  Mfg.   Co.   v.  Lamb.   197. 

V.  Sayre,    1481.    1487. 
Singleton   v.   Carroll,    762. 
Sioux  Valley  State  Bank  v.  Honnold. 
1967,    1973. 


Sipp    V.    Reich,    1023. 

Sire   V.    Rumbold,    1061. 

Sirey  v.  Braems,   267,  1160. 

Slsson    V.    Kaper.    295.    600.    1846. 

Slvem    V.    Sharretts,    1824. 

Six  Carpenters'   Case,   9.   11.    144.  2029. 

2030.    2079,    2083. 
Skaggs    V.    Emerson.    1767. 
Skally  V.    Shute.   528.   1259.    1261.    1262. 

1267. 
Skidmore   v.    Ensign,   2077. 

V.  Hart.   845. 

V.  Pittsburg    C.    &    St.    L.    R.    Co.. 
423. 
Skiles   V.   Sides.    2019. 
Skinner   v.    Skinner,    1886,    1888. 
Skipwith    V.   Clinch.    1062. 
Skipworth   v.    Green,    1053. 
Skull    V.    Glenister.    814. 
Slack  V.    Knox.    1542. 

V.   Koon.    1955. 

V.   Sharpe,    1038. 
Slafter   v.    Siddall,    608.    1484.    1489. 
Slater  v.   Adler.   793. 

V.   Bonfiglio.    1177.    1178,    1979. 

V.   Schwegler.   1829. 

V.   Stone,    766. 

V.  Von    Chorus,    1177. 

V.  Waterson    &    Law    Amusement 
Co.,   1788. 
Slator   V.    Brady,    195.    197. 

V.   Trimble.    195.    196. 
Slattery  v.   Slattery,   15. 
Slaughter   v.    Crouch,    1778. 

V.   Mallet      Land      &      Cattle     Co.. 
1675,    1690. 

V.  Winfrey    1009. 
Slay   V.    Milton,    2049. 
Sleap   V.    Newman,    379. 
Slee    V.    Manhattan    Co..    1558, 
Sleeper   v.   Parrish,   2027. 
Slight   V.    Gutzlaff,    791. 
Slipper  V.  Tottenham  &  H.  J.  R.  Co., 

931. 
Sloan  V.  Cantrell.   73,  81,  1365. 

V.   Hudson,    1929. 

V.  Lawrence   Furnace  Co.,  273. 
Sloat  V.  Rountree,  1421,   1742. 
Slocum  V.  Clark,   1993,   2027. 
Small  V.  Clark,      71,      77.     1359.     1361. 

1384.    1817. 
Smalley  v.   Corliss.  1668. 

V.  Mitchell.    15. 
Smallman  v.   Pollard,   1254. 
Smallwood  v.  Sheppards,  256,  1884. 
Smalman   v.    Agburrow,    513,    514. 
Smalpiece  v.  Evans,   932. 


TABLE  OF  CASES. 


2255 


[keferences  are  to  pages.] 


Smart  v.   Alleg-aert,   551,    1150. 
V.   Smart,    996. 
V.   Stuart,   542. 
Smartle  v.  Williams,   320,   323. 
Smeaton   v.    Cole,    2096. 
Smelling   v.    Valley,    262,    1725. 
Smiley  v.    McLaughlin,    1232,    1881. 

V.  Van    Winkle,    909. 
Smith  V.  Allt,  1474. 

V.  Ankrim,  1191,   1199. 

V.  Arnold,    893. 

V.  Ashforth,    2082. 

V.  Atkins,    1965,    1971,    1972,    1976, 

1978. 
V.  Aubrey,    488. 
V.  Aude,    874,    876. 
V.  Barber,   1148,  1149,  1153. 
V.  Bell,    1471,    1478. 
V.  Billany,    1274. 
V.  Blaisdell,    1404. 
V.  Blake,    1050. 
V.   Bowen,    196.  » 

V.   Boyle,    1672,    1673. 
V.  Brannan,    91,    318,    1674. 
V.  Brinker,    907,    976,    978. 

V.   Bryant,    1956. 

V.   Caldwell,   9,    172. 

V.  Chappell,    716,    786. 

V.  Clark,    1456,   1457. 

V.  Coe,   1558. 

V.  Coker,  181. 

V.  Colson,    1016,    2004. 

V.  Cooke,  731. 

V.  Cooley,   30,    31,   1698. 

V.  Cooper,    175. 

V.   Crosland,   497,    1779,   1782. 

V.   Day.    18,    871,    872,    1311.    1992. 

V.  Dayton,  1942  194S,  1973. 

V.  Detroit  Loan  &  Eldg.  Ass'n, 
1403.  1505,  1508,  1509,  1513, 
1511. 

V.  Devlin,  1314. 

V.  Dittenhoefer,    1852. 

V.  Donnelly,    56S. 

V.  Edgewood  Casino  Club,  942, 
944,    1387. 

V.  Eggin.gton,    895. 

V.   Eldridge,    1893, 

V.  Eubanks,    1293. 

V.   Farnworth,    588. 

V.  Faxon,    641,   644. 

V.  Follansbee,    725. 

V.  Fortscue,   2115. 

V.  Fouche,    314,    1935. 

V.  Fyler,  1016,  1998.  2004,  2047. 

V.  Gibson,  1681.  1683,  1684. 

V.  Goodman,    939,    982,    983. 


Smith    V.    Goodwin,    1095,    2031,    2035, 

2077,   2081. 
V.  Gronow,    94,    1374. 
V.  Hard  wick,   439,   491. 
V.  Harris,   1783. 
V.  Harrison,    886. 
V.  Heldman,    1067. 
V.   Hill,    1367. 
V.  Hoopes,    2083. 
V.  Hornback,  253. 
V.  Houston,    1863,    1866. 
V.  Howell,    997. 

V.  Huddleston,    1922,    1936,    1955. 
V.  Jewett,   715. 
V.   Jones,    2086. 
V.   Kaiser,    1733. 
V.   Kellogg,    894. 
V.   Kerr,     7,     10,     15,     1058,     1059, 

1217,    1219,    1324,   1326. 
V.   Killeck,    1786,    1790. 
V.  Lambeth  Assessment  Commit- 
tee,   34. 
V.  Lehigh   Zinc   &  Iron   Co.,   1851. 
V.   Littlefield,    154. 
V.   Loewenstein,   1687. 
V.  London  &  St.  Katherine  Docks 

Co.,    631. 
V.   Low,  197. 
V.  Maberry,    1902. 
V.   McCurdy,    481. 
V.  McKnany,  1157,  1160,  1268,  1289, 

1290. 
V.  McLean,    14,     1197,    1208,    1209, 

1287. 
V.  Malings,   1067. 
V.  Mapleback,     10i23,     1317,     1473, 

1997. 
V.  Marrable,   558,   570,   571. 
V.  Maxfield,    1274,    1477. 
V.  Meanor,    2039. 
V.  Meech,    187. 
V.  Meyer,    1929,    1932,    1933. 
V.   Miller,   828.   866,   1368. 
V.   Moore,    1585. 
V.   Mundy,   445,  502. 
V.  Newcastle,  44  4,  588. 
V.   Newman,  463. 
V.  Niver,    1346. 
V.   Park,   215,  1604,   1622. 
V.  Parks,    1412. 
V.  Peat,    768,   T72,   797. 
V.   Pendergast,   131,   1170,  1341. 
V.  Perkins,   960. 

V.  Phillips,  259.  383,  390,  549,  2126. 
V.   Pritchett,   254,   255. 
V.   Putnam,    786,    929. 
V.   Raleigh,    1267. 


2256 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Smith  V.  Rasin,  79. 

V.   Reeder,    1504,    1507,    1509. 
V.  Rice,    1649,    1651. 
V.   Rome,    709,    729. 
V.  Rowe,  1761. 
V.   Russell,    1253,    2021. 
V.   St.    Michael,    34. 
V.  St.    Philip's    Church,    921,    928, 
932,    1396,    1694,    1697,    1699, 
1702,    1708. 
V.  Scanlan,    496 
V.   Schultz,    1S7,    1649. 
V.   Scott.   44  4. 
V.  Seghill,  332,  333. 
V.   Shepard,    414,    1045,    1296,   1297. 
V.  Sheppard,    414. 
V.  Sheriff     of     Charleston      Dist., 

2066. 
V.   Simmons,   30. 
V.   Sinclair,     1752. 
V.   Singleton,  313,  1492. 
V.   Sinull,    365. 
V.   Smith,    136,    354,    407,    455,    712, 

1435,    1484. 
V.   Smull,    583. 

V.   Snyder,    1454,    1476,    1477. 
V.  Sonnekalb,   1217. 
V.  Specht,    463,    840. 
V.  State,    557,    561,    650,    657,    1651, 

1950. 
V.  Stewart,   308,   1867. 
V.  Taber,    1965,   1974. 
V.  Thomas,  1119. 
V.  Tindall,    1045,    1669,    1952. 
V.  Twoart,  1882. 
V.  Viles,  1670. 
V.  Wells'  Adm'x,   1942. 
V.  AVenz,   834. 
V.  Wheeler,   1987. 
V.  Whitbeck,    1377,    1378. 
V.  White,    997,    1790. 
V.  Widlake,    400. 
V.  Wiley,    588,    1237. 
V.  Wise,  1160,  1267. 
V.  Wooding,  1866. 
V.  Wcrman,  1974. 
V.  Wright,    2061,    2072. 
Smithurst    v.     Edmunds,     1968,     1971, 

1975,   1970. 
Smithwick   v.    Ellison,    787. 
Smoot  V.  Marshall,  437. 

V.  Strauss,  1998,  1999,   2068. 
Smoyer  v.  Roth,  1676. 
Smucker  v.  Grinberg,  1443. 
Smusch  V.  Kohn,  1594,  1809. 
Smyth,  Ex  parte,  1072,  1073,  1075. 
Smyth   V.   Carter,    718,    730. 


Smyth   V.    Stoddard,    1615,   1697,    1703, 
1705. 
V.  Tankersley,    1654. 
Smythe  v.   Henry,   457. 
Snedaker  v.  Powell,   336. 
Snedecor  v.  Pope,  165. 
Snedeker  v.  Warring,  1562,  1565. 
Sneed  v.  Deal,  1556. 
V.  Oilman,    2134. 
Snelgar  v.   Henston,   407,   2043. 
Snell    V.    Finch,    2044, 
V.  Owen,    1812. 
V.   Ricketts.     1898,     1966. 
Snetzinger  v.  I>eitch,  1631. 
Snideman   v.    Snideman,    1494. 
Snoddy   v.    Bolen,    273. 

Y.   Watt,    1790. 
Snodgrass  v.  Butler,   1828. 

V.   Reynolds,    538,   547,  549,   552. 
Snook  V.    Sutton,   218. 
Snook    &    Austin    Furniture      Co.      v. 
Steiner,    269,    1197,    1206,    1207,    1208. 
Snow  V.   Boycott,   88. 

V.  Griesheimer,     362. 
V.  Horgan,    1144,    1146. 
V.  Pulitzer,    577,    819,    1279,    1304. 
Snowden  v.  Memphis  Park  Ass'n,  888, 

975,    978,    1599. 
Snowhill   V.    Reed,    781,    783,    1347. 
Snyder  v.   Boring,   2062,   2063. 
V.  Carfrey.   1419. 
V.  Gorden,    567. 
V.  Guthrie,    479. 
V.  Harding,    1308,    1354,    1467. 
V.  Hersberg,    836. 
V.  Hitt,    2014. 
V.  Kinkleman,    2033. 
V.   Kunkeleman,    1081. 
V.   Park,    1344. 
V.  Porter,   1435,   1454. 
V.  Riley,   1118. 
Soames  v.  Nicholson,   140,  1447. 
Sobey  v.  Brisbey,  231,  235. 
Sodini  v.   Gaber,  1795. 
Solomon    v.    Fantozzl,    1288. 
Soluble  Pac.   Guano     Co.     v.     Harris, 

1092,   1928,   1937. 
Somers    v.    Loose,    1366,    1406. 
Somerset  v.   Pogwell,   223,   278. 
Sommers   v.    Reynolds,    1375. 
Sonn  V.  Weissman,   644. 
Sontag  V.  O'Hare,   594,   607,  661. 
Soper  V.  Brown,  1994,   2001. 
V.  Fane,   1042. 
V.  Guernsey,    324. 
V.  Littlejohn,    1394. 
Soprani  v.  Skurro,  346. 
Sornberger   v.    Berggren,    1632. 


TABLE  OP  CASES. 


2257 


[RErERENCES  ARE  TO  PAGES.] 


Sorsbie  v.  Parko,  345. 
Souders    v.    Vansickle,    410,    415,    2044. 
Soulard  v.  Peck,   847. 
Soule  V.   Palmer,   359. 
Soulsby   V.    Neving,    1499. 
Sourwlne    v.    Truscott,    378. 
Souter    V.    Codman,    1504,    1505,    1507, 
1511. 

V.  Drake,    960. 
South   V.   Deaton,    4o0. 

V.   Marcum,    16,    516. 
South    BaltiiTiore    Co.      v.      Muhlbach, 

1584,    1585,    159S. 
South         Kensington         Co-Operative 

Stores,    1076. 
South    of   England    Dairies   v.    Baker, 

1003. 
Southampton   v.   Brown,  1829. 
Southern  v.   Bellasis,   1105. 
Southern  Oil  Works  v.   Bickford,  720. 
Southern  R.    Co.   v.    State,   2101. 
Southmayd   v.    Jackson,    1S38. 
Southport   &  West   Lancashire   Bank- 
ing Co.   V.  Thompson,    1583. 
Southwel  V.   Brown.   1838. 
Southwell  V.  Scotter,  1106,  1169,  1349, 

1350. 
Soward  v.  Leggett,   755. 
Sowers   v.    Vie,    907. 
Sowles   V.    Martin,    1652,   1666. 
Spademan,  Appeal  of,  1887. 
Spafford   v.   Hedges,    462,   466. 

V.  Meagley,    762. 
Spaine   v.    Stiner,    675. 
Spalding  v.  Conzelman,  261,  263. 

V.   Hall,    1736. 

V.  Munford,    1203. 
Spalding  Hotel    Co.    v.    Emerson,    804, 

811,    812. 
Spangler  v.   Rogers,   1526. 
Sparigler's    Appeal,    1899. 
Spann  v.  Eagle  Machine  Works,  1050. 
Spark   V.   Spark,    2134. 
Spark's  Lease,   403,  934. 
Sparks  v.  Hess,   1187. 

V.  Ponder,  1944. 
Spear  v.   Allison,    1298. 

V.   Fuller,   918,   938,   939. 

V.   Lomax,   1731,  17S0,  1792. 

V.   Orendorf,    26S,   1522. 
Spears    v.    Robinson,    314. 
Speckels   v.    Sax,    1240,    1273. 
Speckman  v.  Boehm,   789. 
Spect    V.    Spect.    325. 
Speed  V.  St.  Louis  County  Court,   839. 

V.   Smith,    1067. 
Speer   v.   Fisher,   720. 


Speer  v.  Skinner,  2057,  2078. 
Speers   v.    Flack,    1708,    1712. 
Speidel  Grocery  Co.  v.  Stark,  957. 
Speiss    V.    Rosswogg,    1557. 
Spellman  v.   Bannigan,   593. 
'I'pence    v.    Hector,    997. 
Spencer  v.  Austin,  88. 

V.   Burton,    1151,    1154,    2029. 

V.   Clinefelter,    2036,    2037,    2038. 

V.   Collom,    1657. 

V.  Commercial      Co.,      926,      1291, 
1403,    1505,   1509,    1593. 

V.   Darlington,  930,  2017. 

V.   Dougherty,    364. 

V.  Hamilton.    587,    590,    606. 

V.  McGowen,  2005. 

V.  McManus,    738. 

V.  Marriott,   523. 

V.  World's  Columbian  Exposition, 
984. 
Spencer's  Case,  518,  538,  600,  771,  886, 
887,    891,    900,    969,   1021,    1022,    1702, 
1&97. 
Spcro  V.  Levy,   588. 
Sperry   v.   Miller,    1168,    1348. 

V.  Seidel,    1786. 

V.   Sperry,   1311,   1378. 
Spice    V.    Webb,    2056. 
Spicer  v.    Martin,    823. 
Spielman    v.     Kliest,    159,    959,     1711, 

1712,   1713. 
Spies  V.  Damm,  8^7. 

V.  Yoss,     138,    1336. 
Spiro   V.    Barkin,   1757,    1768,    1803. 
Spoon.er  v.   French,   1758. 
Spoor  V.  Phillips,    1118. 
Sposato  V.  New  York,  2127. 
Spota   V.    Hayes,    259,    363,    935. 
Spragg   V.   Hammond,    842. 
Sprague  v.  Quinn,  118,  128,  1367,  1419, 

1424. 
Sprague    Nat.    Bank    v.    Erie    R.    Co., 

538,    877,    161S,    1619. 
Spraker  v.   Cook,   329,   1730. 
Spring   V.    Schenck,    1354. 
Springer  v.   Borden,    1052,    1543,   1546. 

V.  Chicago   Real   Estate    &    Loan 
Co.,    940,    945,    988,    990. 

V.  De   Wolf,    989,    990. 

V.   Ford,   643,   670,   671,   672. 
Springs   v.   Schenck,  486. 
Springstein     v.     Schermerhorn,     1328. 
Spruill  V.   Arrington.   19SS,   1933. 
Spurck   V.   Forsyth,   1794. 
Squire   v.    Learned,    923,    1538,   1539. 
Squires    v.    Huff,    1421. 
Staab   V.   Reynolds,    1057. 


L.  and  Ten.  142. 


2258 


TABLE  OF  CASES. 


[heferences  are  to  pages.] 


Staber    v.    Collins,    1956. 
Stabler  v.   Cowman,    348. 
Stack   V.    Harris,    579. 
Stacy   V.    Bostwick,    17. 

V.  Vermont  Cent.  R.  Co..  308,  1867. 
Stadden  v.  Hazzard,  167,  1627. 
StadGl     V.     Aiklns,     1926,     1929,     1962, 

1963. 
Stafford,  In  re.   218. 
Stafford    v.    Adair,    1601. 

V.  Ames,   1664. 

V.   Staunton,    366,    1202. 
Stag'g'  V.  Eureka  Tanning  &  Currying 

Co.,    440,    486. 
Stamper   v.   Griflin,   109. 

V.   Sunderland,    34,    36. 
Stamps   V.    Cooley,    1613. 

V.   Oilman,   1898.   1901,    2014. 
Stanboroug-h  v.  Cook,  1642,  1645. 
Standard  Brewery  Co.  v.  Kelly,  1142. 
Standard  Metallic  Paint  Co.  v.  Prince 

Mfg'.  Co.,    206,   399. 
Standen  v.  Chrisman,    895,   1877,   1888. 
Standley  v.   Roberts,  1828,  1837. 

V.   Stephen.s,    486. 
Stanfill   V.   Hickes,    125,    1994. 
Stanford    Land    Co.    v.    Steidle,    1790, 

1792. 
Stanhope    v.    Haworth,    1413. 
Staniforth  v.   Fox,   373,   377. 
Stanley  v.  Chamberlain,  303. 

V.  Hayes,  524. 

V.  Koehler,   1341. 

V.  Towg-ood,    754,    755,    779. 

V.   Turner.    1090,    1S51,    1891. 
Stansfleld  v.  Portsmouth,  1604. 
Stanton    v.    Allen,    929. 
Stapenhorst    v.     American    Mfg.     Co., 

624,  793. 
Staples  V.   Anderson,   298. 

V.   Emery,    787. 

V.  Flint,    867. 
Stapylton    v.    Clough,    1460. 
Starkey  v.   Horton,   1547. 

V.   Starkey,    308. 
Starkweather  v.  Maginnis,  1141,  1277. 

V.    Seeley,    1740. 
Starr    v.    Jackson,    2115. 
Startup   V.   Macdonald,    1094,    1096. 
State    V.    Adams,    1977. 

V.  Allen,    1790. 

V.  Bell,    1950 

V.  Blundell,    840. 

V.   Bonham,    1581,    1584. 

V.   Bowman,   1136. 

V.   Boyce,   435,   650,   65* 

V.  Burr,  1752. 


State  V.  Campbell,  839. 
V.  Copeland,    1952. 
V.   Crook,    1950. 
V.   Crowder,    1950. 
V.  Curtis,    334,    333. 
V.  De   Baillon,   7. 
V.   Elliot,    1563,   1569,   1588. 
V.   Elmore,    1924. 
V.   E'rvien,  956. 
V.   Fickling,  1783. 
V.   Forsythe,   9,   13. 
V.   Foushee,    1950. 
V.   George,  1300. 
V.   Griftner,   175. 
V.  Helms,    1497. 
V.  Hicks,    175. 
V.  Hoskins,    1950. 
V.  Howell,  174. 
V.   Jones,   1652. 
V.  King  County,   221. 
V.   Lane,   1786. 
V.   McClay,   12,  1274. 
V.  McMinnville  &  M.  R.  Co.,  1693. 
V.   Marshall,    1760,    1783,    1796. 
V.  Martin,    888,   907,   969,   978,   987, 

993. 
V.  Merritt,  1950. 
V.  Mississippi    River   Bridge    Co., 

840. 
V.  Morgan,  1505. 
V.   Morrison,  159. 
V.   Orwig,  2136. 

V.  Page,  7,  39.  168,  171,   184,  186. 
V.  Passmore,    1710. 
V.   Piper,    8. 

V.  Pittengor,    1787,    1804. 
V.   Powell,    1950. 
V.  Reeder,    1916,    1950. 
V.   Rose,    1950. 
V.   Smith,    334,   1950. 
V.   Staiger,    1786. 
V.   Stewart.    1357. 
V.   Turner,    1950. 
V.  Votaw,    491. 

V.   ■V^i'itener,    1569,    1571,    1586. 
V.  W'illiams,   1950. 
State  Bank  v.  Rohrer,  15. 
State  Board  of  Land  Com'rs  v.  Carp- 
enter,   281. 
State   House,  In  re,  2131. 
State   Sav.    Bank    v.    Kercheval,    1563, 

1564,    1565. 
State  Trust  Co.  v.  Casino  Co..  959. 
State    University    v.    Joslyn,    1147. 
Statham     v.     Trustees     of     Liverpool 

Docks,    1533. 
Stauffer  v.  Eaton,  308. 


TABLE  OF  CASES. 


2259 


[eefbbences 
Stautz   V.    Protzman,   261. 
Stavely   v.   AUcock,    1992,   2076. 
Stayton    v.    Morris,    1999. 
Steadman  v.  Jones,   500. 
Stearns  v    Hetnmens,   1755. 
V.  Liclitenstein,    363,    374. 
V.  Sampson,       1507,       1508,       1511, 
1512,   1672. 
Stebbins  v.   Demorest,   13,    22. 

V.   Peck,    288. 
Stedman    v.    Gassett,    320,      414,      416, 
1651. 
V.  Mcintosh,    84,    130,    1419,    1420, 
14  62. 
Steed    V.    Hinson,    1101,    1105,    1106. 
Steefel  v.   Rothschild,   565,  1303. 
Steel   V.   DeMay,    1111. 

V.   Frick,    28,    39,      185,      186,      187, 
373,  542,   545,   547,   1649,  2002. 
V.   Payne,    262. 
V.   Thompson,    1718. 
Steele  v.   Anheuser  Busch  Brew.   Co., 
255. 
V.   Bond,   1684,   1724,   1729,   1784. 
V.   Buck,    763. 
V.  Creamer,   1811. 
V.   De   May,   1109. 
V.  Mart,    52. 
V.  Mills,  1144. 
V.  Moore,    1629. 
V.   Payne,    263. 

V.   R.  M.  Gilmour  Mfg.  Co.,  468. 
V.   Thayer,   1864,   1889. 
Steen  v.  Scheel,  1468,  1516,  1518,  1519, 
1529. 
V.  Wadsworth,  445,  500. 
Stees  V.   Bergmeier,   1484,  1490. 

V.   Kranz,      811,      812,      824,      1002, 
1384. 
Steese   v.   Johnson,    1456. 
Steffens    v.    Earl,    63,    119,      133,      134, 

1428,   1445,   1446,  1786,   1787,    1792. 
Steffln  V.   Steffln,   1967,   1973. 
Stein   V.    Jones,   1141. 
V.  McArdle.    857. 
V.   Rice,    295,    1158,    1218. 
V.   Stely,    1021,    1998. 
Steinback  v.   Krone,   1767,    1779. 
Steiner  v.   Marks,    1396. 
Stfcinfield    v.    Wilcox,    266. 
Steinhardt    v.    Bell,    1952. 

V.  Burt,    859. 
Steinhauser  v.    Kuhn,    1357. 
Steining-er  v.  Williams,  235,  261. 
Steketee  v.  Pratt,  246. 
Stelle  V.  Creamer,  1803. 
Stelz  V.  Van  Dusen,  607,  662. 


ARE  TO  PAGES.] 

Stem  V.  Nysongrer,   231. 
Stenberg   v.   Willcox,    567,   652. 
Stephani   v.    Brown,    686,    687, 

V.  Catholic   Bishop      of     Chicago, 
851. 
Stephens  v.  Adams,  1917,  1942. 
V.   Bridges,   89. 
V.  Brown,   1354. 
V.   Ely,   370,    1593,    1594,   1606. 
V.  Hooks,  2045. 
V.  Hotham,    379,    1133,   1536. 
V.   Reynolds,  56. 
Stephenson   v.   Elliott,  1627. 

V.   Haines,    1899. 
Sterger  v.   Van   Sicklen,   656,   662,   663 

700. 
Sterling  v.  Heimann,   27. 

V.  Warden,  22,  1505,  1507. 
Stern   v.   Murphy,    1168. 

V.   Sawyer,    1141,    1142. 
Sternberg  v.  Burke,  586. 
Sterrett  v.    Wright   1886,   1887. 
Stetson   V.    Briggs,    2S0,    352. 
Steuber  v.    Huber,   468. 
Stevens  v.  Burnham,  1580,  1585. 
V.   Copp,  890,   1383. 
V.  Haskell.    366,    1047. 
V.  Hulin,    319. 
V.  New  York,    1479,    1500. 
V.  Pantlind,   59,    742,    777,   778. 
V.   Pierce,    365,    560,    561,    1100. 
V.   Rose,    721,    745. 
V.   Salomon,    828. 
V.   Stevens,    213. 
V.   Taylor,    817. 

V.  Wadleigh,    575,    815,    828,    1144, 
1231. 
Stevenson   v.    Hancock,    879,   1117. 
V.  Joy,    705. 
V.  Lambard,    771,    888,      986,      987, 

1069,   1127,   1148,  1821,  1823. 
V.  Newn'ham,    2036. 
V.  Powell,   525. 
Stevenson    Brew.    Co.    v.    Culbertson, 

280. 
Steward   v.   Bridger,    170. 
v.  Harding,    1448. 
V.  Winters,    807,    812. 
Stewart   v.   Apel,    277. 
v.  Aston,   1315. 
V.   Doughty,    1G32,   1637. 
V.   Flint,    200. 
V.   Forst,    1282. 
V.  Gorter,   1691. 

V.  Gregg,    874,   1877,  1998,   2041. 
y.  Harvard  College,   643,   648,  8T1, 
672. 


2260 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  PAGES.] 


Stewart  v.  Jackson,  1740,  1802. 

V.  Keener,    488, 

V.  3La,nier   House   Co.,   591,   1843. 

V.  Long    Island    R.    Co.,    908,    911, 
912,    1127,    1133. 

V.  Miles,    488.    1721,    1739. 

V.   Murrell,    1428. 

V.  Perkins,    1135. 

V.  Pier,    83. 

V.  Putnam,   688,  790, 

V.  Roderick,   490. 

V.  Sprague,    1276,    1337. 
Stickney  v.   Burke,    1449. 

V.  Stickney,    1662. 
Stier  V.  Surget,  1154,  1853. 
Stiger   V.    Monroe,   534,    535,    543,    1268. 
Stiles    V.    Cowper,    399,    426. 
Stillman  v.   Flenniken,    1565. 

V.  Harvey,   870,    935,    956. 

V.  Thompson,  812. 

V.  Van    Beuren,    1899. 
Stillwell's  Adm'r  v.    South    Louisville 

Land  Co.,    594,    607,   662. 
Stimmel  v.  Waters,   1343. 
Stimson   v.  Crosb5%   852. 
Stinemets  v.  Ainslie,  1189. 
Stinson  v.  Dousman,   315,   316. 

V.   Gassett,    1722. 

V.   Stinson,    876,    1119. 
Stobie   V.    Dills,    359,    1135.    1171,    1332. 
Stockbridge  v.  Nute,   1718. 
Stockbridge   Iron   Co.   v.      Cone     Iron 
Works,  1383. 

V.  Hudson  Iron  Co.,  30,  31. 
Stockdale  v.  Ascherberg,  774,  850. 
Stocker  v.  Planet  Bldg.  Soc,  10,  1052. 
Stockett    V.     Howard,     888,     893,     859, 
1702. 

V.   Watkins,    1S58,    1890,    1891. 
Stockport  Water  Works  v.  Potter,  21. 
Stockton    V.    Guthrie,    1062. 
Stockton's  Appeal,   879,   1117. 
Stockton  Sav.  &  Loan  Society  v.  Pur- 
vis,   1967,    197^.    1976. 
Stockwell  V.   Campbell,   1562. 

V.   Hunter,    97,    222,    1196,    1197. 

v.  Marks,  1418,  1578,  1579,  1585. 

V.  Phelps,  1640, 
Stoddard  v.   Emery,  880. 

V.  Nelson,    365. 

V.  Waters,    1494,    1632,    1637. 

v.   Whiting,    275. 
Stoelker  v.  Wooten,   1940,   1941. 
Stoepel   V.   Union   Trust  Co.,    985. 
Stoetzele  v.  Swearingen,  687. 
Stokell  v.  Niven,   384. 
Stokes  V,  Barney,  1921. 


Stokes  V.  Cooper,  1161. 

V.  Gillis,  1961. 

V.  Hoffman  House,  984. 

V.  Moore,  386. 
Stokoe  V.  Upton,  1573,   1585,   1587. 
Stoltz  V.  Kretschmar,  2099. 
Stone  V.  Bohm,  1932,  1933,  1949. 

V.  Grubhara,    2134. 

V.  Laliey,    1507. 

V.  Matthews,  2011. 

V.  Patterson,  414,  1083. 

V.   Rogers,    377. 

V.  St.   Louis   Stamping  Co.,   1531. 

V.   Snell,   866. 

V.   Sprague,  308. 
Stone's  Estate,  In  re,  1939. 
Stone's  Succession,  1917. 
Stoops  V.  Devlin,  488. 
Stoppelkamp  v.  Mangeot,  45,   1482. 
Stopper    V.    Kantner,    1592. 
Storey  v.   Robinson,    2019. 
Storm    V.    Green,    1927. 
Story   V.    Butt,    401. 

V.  Johnson,    197. 

V.  McCormick,    1855,  1887. 

V.  Ulman,    88. 

V.  Walker,    1790. 
Stose  V.   Heissler,    1041,   1050,   1051. 

V.   Rutherford,  471,  518,   540. 
Stott  V.   Chamberlain,    1308,   1335. 
Stoughton  V.  Leigh,   33,   709,   710. 
Stoughton's  Appeal,    217. 
Stout  V.  Merrill,   449.     ■ 

V.   Stoppel,    1600,    1624. 
Stover  V.  Cadwallader,   246,    248. 

V.  Chasse,    918,   1769. 

V.   Davis,    178,    451. 

V.  Hazelbaker,    1386,   1768. 
Stow  v.  Russell,   1191. 
Stowell   V.    Robinson,    946. 
Stowman   v.    Landis,    1042. 
Strafford    v.    Wentworth,    1072,    1105. 
Strahan  v.  Smith,  167,   169. 
Straight  v.  Mahoney,   1572. 
Strain  v.  Gardner,   39,   185,   186,   187. 
Strange  v.   Austin,    1118. 
Strangeway  v.  Eiseman,  184,  1967. 
Stranks  v.   St.   John,    391. 
Stratford  v.   Bosworth,   379. 
Strauss    v.    Baley,     1910,     1911,     1925, 
1936,   1953. 

v.  Hamersley,   696. 
Streaper  v.  Fisher,  SS5,  1110. 
Street  v.  Central  Brew.  Co.,  760. 
Streeter   v.    Ilsley,    499. 

V.   Streeter,    541. 

V.  Ward,   1978. 


TABLE  OF  CASES. 


2261 


[EEFEKENCES 

Strait  V.  Fay,   1426.   1482,   1519. 
Strelley  v.    Pearson,   395,    396. 
Strickland   v.  Hudson,   1887. 

V.   Stiles,     1903,     1911.     1924,     1968, 
1971,    1972. 
Strlngfellow  v.  Curry,   1858. 
Strohecker  V.  Barnes,   1239. 
Strohlburg  v.   Jones.   2097. 
Strohmaier,  v.   Zeppenfeld,  1545.   1546, 

1699. 
Strong  V.  Colter,   1664. 
V.  Crosby,   245. 
V.  Doyle,    787. 
V.   Garfield,    1875. 
Stroup  V.  MoClure,   1798. 
Strnusse     v.     Bank     of    Clear    Creek 

County,  1481,   1528,   1847. 
Stroyer  v.    Campbell,    793. 
Struthers   v.    Pearce,  1556. 
Stuart  V.  Baker,   197. 
V.  Dlplock,   802. 
V.  Hamilton,   1492. 
V.  Joy,    880. 
V.   Twining,   1936. 
Stubbings   v.    Evanston,      1163,      1180, 

1183,    1184,    1299. 
Stubbs  V.  Parsons,    842,  1088,   2037. 
Stull  V.   Thompson,    366,   1061. 
Stults  V.  Zahn,  1805. 
Stultz   V.    Dickey,   1638. 
V.  Locke,  585,   754. 
Sturdy  v.  Arnaud.  1083,  1084. 
Sturges  V.  Knapp,   778. 
V.  Van   Orden,   471. 
Sturgis  V.  Frost,   2079,   2086. 
Sturmwold    v.    Schreiber.    690.    693. 
Stuyvesant  v.  Davis.   1174,  1175,  1369, 
13S9. 
V.   Grissler,  1405. 
Stuyvesant   Real  Estate   Co.  v.    Sher- 
man,  1790,   1791. 
Style  V.  Hearing,  518. 
Styles  V.   War  die,    52. 
Suchaneck  v.  Smith,  1755,  1777. 
Suddarth  v.  Robinson,  480. 
Sugg   V.    Farrar,    1945,   1961,    1962, 
Sullivan  v.  Barry,  193. 
V.  Beardsley,   1277, 
V.  Carberry.   1588. 
V.  Gary,   1795. 
V.  Cleveland,    1955,     1975. 
V    Ellison,   1253,   1941,    2091. 
V.  Enders,     130,    1420,    1425,    1434, 

1734. 
V.  Flynn,  200. 

V.  George  Ringler  «&  Co.,  1468, 
1473,  1475, 


ARE  TO  PAGES.] 

Sullivan  V.  Ivey,  309. 
v.  Jones,    1882. 
V.  Lueck,   1786. 
V.  Monahan,   804. 
v.   Schmitt,    1148. 
Sully     V.     Schmitt,     1223,     1224,     1235, 

1272,   1280,    1281. 
iBulphine  v.   Dunbar,    473. 
Sulzbacher    v.    Dickie,    608,    613,    614, 

625. 
Summerville  v.   KelHher,    980. 

V.   Stockton    Milling   Co.,    1965. 
Sumner  v.   Bromllow.    1608. 

V.  Tileston.    2136,    2114,    2127. 
Sun   Ins.   Office   v.   Varble,   765,   766. 
Sunasack  v.  Morey,   562,   563,  565. 
Sunday  Lake   Min.   Co.   v.    Wakefield, 

1411,   1413,   1414. 
Sunderland  v.  Newton,  1624,  1625. 
Sunflower   Oil    Co.    v.    Wilson,   985. 
Sunol  V.  Molloy.   1661,   1662. 
Sunpkins  v.  Rogers.  25. 
Superintendent      of     Trenton     Public 

Schools    v.    Bennett,    763. 
Supplee    V.    Herman.    1146. 

V.  Timothv,  120;^.  Mni. 
Surget  V.  Arighi.  523.  536. 
Surplice    v.     Farnsworth.     1211,     1237, 

1238. 
Sury  V.   Brown.   221. 
Susquehanna  &  W.  V.  R.  &  C.  Co.  v. 

Quick,   904. 
Sussex  V.   Wroth,    404. 
Sutcliffe   V.    Wardle,    1683. 
Sutherland  v.  Briggs,   387,   &   388. 

V.  Goodnow,       1516,      1518,      1547, 

1548. 
V.  Shelton,    1141. 
Sutliff  V.   Atwood,    885,    894,   978,   1021. 

1034,    1081,    1130,    1166.    1329. 
Sutphen   v.   Seebass,    1227,   1233. 

V.  T'herkelson,    827. 
Sutton,  In  re,  2021. 
Sutton  V.  Butler,   663. 
V.  Casseleggi,    2136. 
V.  Foulke,  1263. 
V.  Goodman.  1158,  1175.   1180. 
V.  Graham,    254. 
V.  Hiram  Lodge,   69,   151. 
V.  Recs,    1898. 
V.  Temple,    557,   1892. 
Sutton's  Case,   98,   1385. 
Suydam    v.    Jackson,    745,    747,    1222, 

1233,  1234. 
Swain  v.   Ayres,   373. 
V.  Holman,   194. 
V.  Mii^ner,   35,  36. 


2262 


TABLE  OF  CASES. 


[HEFBHENCES  ARE  TO  PAGES.] 


Swain  V.  NasTvorthy,  2069. 
Swan   V.    Busby,    490. 
V.   Castleman,  4  85. 
V.  Clark,    132,    237. 
V.  Inderlied,   1514. 
V.   Kemp,    1691. 
V.   Sarles,    354. 
V.   Stransham,   522, 
Swank  v.   St.    Paul  City  R.   Co.,   1516, 

1536,    1547. 
Swann   v.    Falmouth,    2056,   2057,   2071. 
V.  Inderlied,    1108. 
V.  Morris,    1913. 
V.  Thayer,    17. 
V.   Wilson,    496. 
V.   Young,   16. 
Swanner  v.   Swanner,   167,   185. 
Swansea  Bank  v.  Thomas,   1069,   1073, 

1101,    1165. 
Swart  V.  Western  Union  Tol.  Co.,  107, 

1475. 
Swartz's  Appeal,   1802. 
Swatman    v.    Ambler,    346. 
Swearingen  v.   Magruder,   2053. 
Swedesborough     Church     v.     Shivers, 

1827. 
Sweeney   v.    Garrett,    1379. 

V.  Mines,    1731,    1785,    1787. 
V.   Sw^eeny,    1439. 
Sweeper  v.  Randal,  1630. 
Sweet  V.   Harding.    1044. 
V.   Myers,   1587,   1622. 
Sweetser  v.  McKenney,   67,   108,   1522. 
Sweezy  v.  Jones,   1677. 
Swem  V.   STiarretts,  1853. 
Swift  V.  Dean,   483. 

V.  East       Waterloo     Hotel       Co., 

fl.'i?.    603. 
V.  Goodrich,   221,   503. 
V.  New      Durham      Lumber      Co., 

1865,    1860. 
V.  Occidental     Mining     &     Petro- 
leum   Co.,    1537. 
V.  Sheehy,  1708,   1712. 
Swigert  v.  Hartzell,   289,  1524,  1525. 
Swigley  v.  Jones,   1718. 
Swinburne  v.   Milburn,   1524. 
Swinfen   v.    Bacon,    1497. 
Swire   v.    Leach.    2008,    2080. 
Switzer   v.   Allen,    1613. 
V.   Gardner,    260. 
V.   Knapps,   276. 
Swope   V.   Hopkins,    139,    1437. 
STvcrd   V.   ix)w,    1601. 
Swords    V.    Edgar,    655,    656,    686,    703. 
Sykes  v.  Benton,   1802. 
V.  Chadwick,    480. 


Syllivan    v.    Straddling,    433,   446,    488. 

Sylvester  v.    Ralston,    1866. 

Syme  v.  Sanders,  512. 

Symonds    v.    Hall,    1631,    1654,    1663. 

Syms  V.    New    York,    1524,    1525. 

Synod  of  Toronto  v.  Flsken,  1740. 

Szathmary  v.  Adams,   661,  700. 


T. 


Tadman  v.   Henman,  488,   1989. 
Taggard    v.    Roosevelt,    245. 
Taggart  v.   Packard,  1977. 
Tailor's    Case,    143. 
Tainter  v.   Cole,   406. 
Tait's    Ex'r   v.    Central   Lunatic    Asy- 
lum,   1598. 
Talamo  v.  Spitzmiller,  242,  244,  247. 
Talbot    V.     Cruger,     1586,     1593,     1594, 
1595,    1603,    1606. 

V.   Ford,    394. 

V.  Provine,   217. 

V.  Whipple,   1322,  1332,  1569,   1570, 
1587,    1588,    1589,    1621,    1622. 
Talbot's  Case,   1064. 
Talbott    V.    English,    1262,    1263,    1301, 

1852. 
Taliaferro    v.    Pry,    1921. 
Tallmadge    v.    Hooper,    361. 
Tallman    v.    Bressler,    976,   1129. 

V.  Coffin,   708,    893. 

V.   Earle,    1230. 

V.   Murphy,    835,    1216,    1222,    1226, 
1229,   1233,    1234,   1235,   1272. 
Tancred   v.   Christy,    1482. 

V.  Leyland,    2036. 
Tanfleld    v.    Rogers,    1029. 
Tanham  v.   Nicholson,  1457. 
Tanner  v.   Hills,    1653. 
Tantlinger    v.    Sullivan,    65. 
Tanton  v.   Boomgaarden,   2037. 

V.  Van  Alstlne,  1432. 
Tapley  v.  Eagleton,  267. 
Tarkovsky    v.    George    H.    Hess    Co., 

1197,    1209. 
Tarlotting  v.  Bokern,   1364. 
Tarpy  v.  Blume,  1277. 

V.   Perslng,    1665,    1957. 
Tarry  v.   Ashton,    790. 
Tate    V.    Blackburne,    1585. 

V.   Gleed,    2011. 

V.  McClure,    1885. 

V.  McCormick,   992. 


TABLE  OF  CASES. 


2263 


[BEFEBENCES  ABE  TO  PAGES.] 

Tate  V.  Neary,   202,  975.  1127. 
Tatem    v.     Chaplin.     889,     970. 
Tatum    V.   Thompson,    578,    579. 
Taunton   v.    Barrey,    923. 

V.   Costar,    1505,    1506. 
Taussig  V.   Reel,  404. 
Tayleur   v.   Wildin,    1138,   1462. 
Taylor  v.  Bailey,   644,   648. 

V.   Beale,   1088,   1091. 

V.  Bradley.   38,  186,   391.  392,  1649, 
1661. 

V.  Caldwell.   26,   1195. 

V.  Campbell,    778. 

V.  Cleary,    44. 

V.  Colo,    1508. 

V.   Coney,    1654. 

V  Cooper,     548,     1118,     1291,    1294. 
V.  DeBus,    885,    962,    1124,    1822. 
V.   Eckford,   489. 
V.  Felder,    193S,    1963,    2058,    2060. 

V  Finnigan,     367,     370,     537,     576, 

583.    004,    797,    1240,    1263. 
V.   Frohock,    82. 
V.  Hart.    1218. 
V.  Hunt,    366. 
V.  Jermyn.    1373. 
V.  Kelly,    16. 
V.  Knight.     1412. 
V.  Levy,    303,    583.    589.    1852. 
V.  Meades.    192. 
V.   Mohan,   408. 
V.  Monohan,    1786. 
V.  Nelson,    1922. 
V.  O'Brien.   155,    319,   329. 
V.  Overseers     of     Pendleton,     26. 
V.   Owen.    S90. 
V    Portington.    394. 
V.   Shum.    379,    988.    991.    1133. 
V.  Southerland.    1101. 
V.   Stibbert,    865. 
V.  Taylor,    310,    314,    1902,    1903. 
V.   Townsend,    2115. 
V.  Tuson,  1425. 
V.  White,    470. 
V.  Winters.    1327. 
V.  Wrig-ht.    2098.    2100.    2109,    2114, 
V.   Zamira,    1087,    2037. 
Tays  V.   Ecker,    1204,   1205. 
Teaff  V.  Hewitt,  1562,  1564,  1565,1614 
Teag-arden   v.   McLaughlin,    7. 
Teal  V.  Walker,  410,   873. 
Teape  v.  Douse.  810. 
Teater  v.    King,    865,   1431. 
Tebb  V.  Cave,  532. 
Teft  V.  Hlnchman,    247. 
Teioh  V.  Arms.   177. 
Teller  v.  Boyle.  1333.  1376. 


Tempest  v.    Rawllng.    376. 

Temple    Grove    Seminary    V.    Cramer, 

201. 
Templeman   v.  Blddle.  1638. 
V.   Gresham.   1948,    1958. 
Tenant  v.   Goldwin,    624,   627. 
Ten    Eyck,    In    re,    980. 
Ten  Eyck  v.  Rector,  etc.,  of  Protest- 
ant  Episcopal   ChurcTi,    849. 
V.   Sleeper,  1056. 
Tennant  v.    Field,    2057,    2059. 

V.  Hall,    647. 
Tennessee   &   C.   R.   Co.   v.   East  Ala- 
bama  R.    Co.,   9. 
Ter-Hoven  v.  Kerns,  1899. 
Terry  v.  Bale,  1081. 
V.   Ferguson,    468. 
V.   Robins,    1570. 
Terstegge  v.   First  German  Mut.  Ben. 

Soc.   1167,  1348,  1526.   1535. 
Teufel   V.    Rowan.    1043. 
Teviss   V.    Boehmer.    168. 
Tew  V.   Jones,   318,   1043,    1858,   1873. 
Tewksbury    v.    Magraff,   474,   496,   498, 
501.    503,    516. 
V.  Whitney.  1498. 
Texas  Land  Co.  v.  Turman,  497.  1815. 
Texas   Loan  Agency   v.    Fleming,    660, 

1335,    1336. 
Texas   Pac.    R.   Co.   v.    Saunders,   1606. 
Texas  &   Pac.   R.   Co.  v.  Bayliss,  1654. 
1667,  2124. 
V.  Society    for    Relief    of    Orphan 

Boys,    1052. 
V.  Torrey,    2124. 
Thacher  v.  Phinney,  736. 
Thacker  v.   Henderson,   216.   217,   1109. 
Thackeray  v.  Eldigan.   725. 
Thackray  v.   Cheeseman.   1419. 
Thalheimer    v.     Lempert,     745,     1228, 
I  1233,    1234. 

V.  Tischler,    1675,    1677. 
Thamm    v.    Hamberg,    1749. 
Tharpe    v.    Stallwood,    208D. 
Thatcher   v.    Tillory,    1092. 
Thayer   v.    Society    of   United    Breth- 
ren. 481. 
Theater    Royal    Drury    Lane    Co.    v. 

Chipman.   1873. 
Theological      Institute     v.      Barbour. 

1884. 
Theriat  v.   Hart,   1248. 
Thetford    v.    Thetford.    191. 

v    Tylar.  1490,   1889. 
Thew   v.    Miller.    1962. 
Thlebaud    V.    First    Nat.    Bank.    1632. 
1      1584,   1535. 


2264 


TABLE  OF  CASES. 


[EEFEKEXCES  ARE  TO  PAGES.] 


Thlel  V.  Bull's  Ferry  Land  Co.,  1404, 

1507.    1510. 
Thigpen   v.    Maget,   1913,    1961. 
Thomas   v.   Bacon,    1973,   1974. 

V.  Black,    1420. 

V.  Burne,    1551. 

V.  Cadwallader,  766. 

V.  Cameron..    2004. 

V.  Connell,    956,    971,    973,    978. 

V.  Conrad,    301,   575,    582. 

V.  Cook,   1345. 

V.  Crout,    1585,    1587. 

V.  Davis,    1564,    1565,    1614. 

V.  Dingleman,   365. 

V.  Drennan,  1277. 

V.  Flamer,   1800. 

V.   Frost,    1469. 

V.   Gibbons,   2036,    2078. 

V.  Gottlieb,      etc..     Brewing     Co., 
1682,    1690. 

V.  Gumaer,    1137. 

V.  Harries,    2030,    2059. 

V.  Hayward,    830,    890. 

V.  Hooker-Colville       Pump      Co., 
848. 

V.  Jennings,    1592,    1620. 

V.  Johnston,    317. 

V.  Judy,    1086,    1121,   2086. 

V.   Kingsland,    586. 

V.  Lulliam,   1395. 

V.  McManus,    230. 

V.  Miroiiouse,    1254,    1256. 

V.  Morrison,    1653. 

V.  Nelson.    248,     253,     1233,      133^, 
1S41. 

V.  Owen,    816,    817. 

V.  Packer,    382,    1489. 

V.  Pemberton,     982. 

V.  Sanford     Steamship     Co.,     128, 
1423. 

V.  Sorrel,    21. 

V.  Sylvester,   1819. 

V.  Thomas,    1456. 

V.  Tucker,  Zeve  &  Co.,  1910. 

V.  Von    Kapff,    862,    889,    970. 

V.  "Walmer,    1761,   1803,    1805. 

V.  "West   Jersey    R.    Co.,    163,    202, 
203,    204. 

V.   Wigsrers,    817,    1542. 

V.  Wightsman,    872,    1501. 

V.  Wright,    59,    127. 

V.  Young,    437,    450. 

V.  Zumbalen,    1325. 
Thomas'    Lessee    v.    Blackmore,     907. 
Thomason  v.  McLaughlin,    1733. 
Thomasson     v.     Wilson,     1734,     1736, 
1739. 


Thompson    v.    Ackerman,    931. 

V.  Anderson,    1916,    1931. 

V.  Baltimore        &        Susquehanna 
Steam    Co.,    1248,    1900,    2019. 

V.  Bennett,  1858. 

V.  Bower,    SOS,    1866. 

v.   Chapman,   874,    1790. 

V.   Chich,  135,   1454,   1488. 

v.   Christie,    282,    1364,    1385. 

V.  Clt-mens,      487,      586,     587,     594, 
595,   662,  664. 

V.  Commercial    Guano    Co.,    1087, 
1919. 

V.  Cummings,   779. 

V.  Flathers,  408. 

V.  Fox,   1859,    1887. 

V.  Graham,   4  37,    4510. 

v.  Gray,  948. 

v.   Guyon,   1410,   1538. 

v.   Hakewill,     345,    357,    903,     1833. 

V.  Jones,    1879. 

V,  Lapworth,   850. 

V.  Leach,     281,     1310,     1317,     1319, 
1334. 

v.  Manhattan    R.    Co.,    2117. 

V.  Marsh,    1499,    2002,    2084, 

V.  Mashiter,   2008. 

V.  Mawhinny,    1652. 

v.  Mead,    1918. 

v.   Pendell,    1203. 

v.  Pioche,   177,   865. 

V.   Powell,   1914,    1960. 

v.   Rose,   885,   888,   893,   1702, 

v.  Sanborn,    1860,    1888. 

v.  Schuyler,    2135. 

V.  Sornberger,    1794. 

V.   Spinks,    1960. 

V.  Tilton,    1910. 

V.  Union     Warehouse     Co.,     1643, 
1646. 

V.  Williams,    730. 

V.   Wood,    2087. 
Thompson's      Adm'r     v.      Thompson's 

Ex'r,    1632. 
Thompson's    Estate,    1530,    1549. 
Tliompson     Houston     Electric    Co.     v. 
Durant  Land  Imp.  Co.,  363,  546,  581, 
587,    591,    603,    605,    1238. 
Thompson    Scenic    R.    Co.    v.    Young, 

1573,    1573. 
Thomson    v.    Erskine,    1107,    1117. 

v.  Lullum,    1108. 

v.   Peake,    437,    486.    490. 

V.   Smith,   1565,   1566. 
Thorn  v.   Sutherland,  1109,   1117,   1592. 

V.  Woolcombe,    909. 
Thorndike  v.  Allington,    1826. 


TABLE  OF  CASES. 


2265 


[EEFERENCES    AEE    to    PAGE3.] 


Thorndike  v.  Eurrage,   780. 

V.   Norris,    1778,    1780. 
Thornhill   v.    King,    932,   946. 
Thornton  v.  Adams,   2027. 

V.   Carver,    1932. 

V.  Strauss,    314,      315.      316,     1103, 
1961,   1363. 

V.  "Wilson,    2052. 
Thorp   V.   Bradley,    257. 

V.  Philbin,    1490. 

V.  Preston,    1011. 
Thorpe  v.  Corwin,  2113. 

V.   Fowler.   1906.   1935. 

V.  Hanscom,    200. 
Thostesen   v.    Doxsee,    1972. 
Thousand      Islands     Park     Ass'n       v. 

Tucker.    808,    826. 
Thrale  v.  Cornwall,   882. 
Thrall   v.    Hill,    1612. 

V.  Omaha   Hotel   Co.,    462. 
Thrasher  v.  Gillespie,   20 DO. 
Threlfall,  In  re,  105,   140,   1435. 
Thre'r  v.  Barton,   92,  98,   1167. 
ThresTaer     v.      East     London     Water- 
works  Co.,    1593,   1607. 
Throg-morton   v.  Whelpdale,   1357. 
Thropp  V.  Field,   819,   833,   1410. 
Thropp's   Appeal,    1249,    1589,    1622. 
Thruston  v.  Minke,  730,  892. 
Thuemler   v.   Brown,    1690. 
Thum  V.   Rhodes,   565,   568. 
Thunr'er  v.   Belcher,   320,   403. 
Thurber   v.    Dwyer,    109,    283,    1447. 
Thursby  v.  Eccles,   388. 

V.   Plant,    881,     885,    898,    962,    968, 
1100,     1126,     1820,     1821,     1822, 
1823. 
Thursedon    v.    Warthen,    353. 
Thwaites   v.  Wilding,   2035. 
Tibballs  V.   Iffland,    988. 
Tibbetts  v.  Morris,   1849. 
Tibbitts  V.  Percy,   1237,   1838. 
Tice  V.  Cowenhoven,   1440. 
Tidey  v.  Mollett,   276,   373. 
Tidswells    v.    Whitworth,    850. 
Tiernan  v.  Johnson,  126,  128,   243. 
Tifft  V.  Verden,   1999. 
Tignor  v.  Bradley,   1035,   1040,   2093. 

V.  Toney,    1657,    1664. 
Tiley  v.  Moyers,  1157,  1158,  1261,  1846. 
Tilford    V.    Fleming,    1734. 
Tilghman   v.   Crnson,   2115. 

V.  Little,    496. 
Tillcny    v.    Knoblauch,    492,    1530. 
TiUman   v.    Fuller,    224,    378,   384. 
Tillotson   V.   Boyd.    971. 
V.   Doe,    1355. 


Tillotson  V.  Herrick,  1140^ 
Tilney  v.  Norris,  379,  978. 
Tilton   V.    Sterling   Coal   &   Coke    Co.. 

1675.    1682. 
Tilyou  V.   Reynolds,   450,   488,   514. 
Timbrell    v.    Bullock,    1290. 
Timlan   v.   Dillworth,    643,    646. 
Timlin   v.    Standard   Oil   Co..    683,    691, 

698,   699,   791. 
Timmes  v.   Metz,   1251.   1253. 
Timmins  v.  Rowlinson,   130,  1501. 
Timms  v.   Baker,    923,    1367. 
Tinckler  v.   Prentice,   1096,   1378. 
Tinder    v.    Davis,    1884. 
Tinman    v.   McMcekln,    1940. 
Tinsley  v.   Craige,    1648,    1651,   1943. 
Tinsman     v.    Belvidere    Delaware    R. 

Co.,    2097,    2107,    2110,    2117,    2119. 
Tipping  V.  Eckersley,  221. 
Tipton  V.   Roberts,   1372. 
Tischner   v.    Rutledge,    1524. 
Tisdale   v.    Essex,   24,   265,    235. 
Tison  V.   Yawn,   471,   480,   483. 
Titsworth    V.    Frauenthal,    1935. 
Toan    V.    Pline,    255,    285,    1026. 
Tobener  v.  Miller,   1322. 
Tobey   V.    Mattimore,    891. 

V.  Webster,    2115. 
Tobey    Furniture    Co.    v.    Rowe,    1052. 
Tobias  V.   Cohn,   2101. 
Tobie  V.   Smith,    1882. 
Tobin    V.    Young,    1355. 
Toby  V.   Schultz,    302,    1725. 
Tocci   V.    Powell,    1216. 
Todd  V.   Cameron,  976. 

V.   Plight,    675,   680,    691. 
V.  Jackson,    1510,    1511.    1512. 
Tod-Heatley     v.     Benham,     805.     806. 

812. 
Todhunter  v.   Armstrong,    335. 

V.  Des  Moines,  I.  &  M  R,  Co.,  55. 
Toland  v.   Swearingen,    1948. 
Toledo     Tinware     Mfg.     Co.     v.     Duff, 

2080. 
Toledo  W.   W.   R.   Co.   v.    Depot   Bldg. 

Co.,    1692,    1694. 
Toleman  v.  Portbury,  1376,  1387.  1392. 
Toler    V.    Seabrook,    1016,    1021,    1045, 
1998. 
V.  Slater,  191,   193,   352,   2002. 
Toles  V.  Meddaugh,  145.  1637. 
Tolle  V.   Orth,   1337. 
Tolman   v.    Heading,    1758.    1759,    1765. 

V.  Portbury,    1393. 
Tolsma   v.    Adair,    89. 
Tomkins  v.  Pinfent,   1036. 
Tomle  V.  Hampton,   675,  680,   687,  G89. 


2266 


TABLE  OF  CASES. 


[KEFEEBNCES    ABE    TO    PAGES.] 


Tomlinson  v.  Dny,   1893. 
Toney   v.    Goodley.    1929,    1930,   1932. 
Tonpin   v.   Peabody,    866. 
Tooker  v.   Smith,   383,   526,  1435. 
Toole    V.    Becket,    625. 
Toplis  V.  Grane,   2053. 
Topping  V.  Parish,  409. 
Toronto  Hospital  Trustees  v.  Heward, 

1887. 
Torrans    v.    Strlcklin,    12,    1274,    1333, 

1463. 
Torrence  v.  Irwin,   2115. 
Torrens  v.  Walker,   585,   586,   621. 
Torrent    v.    Muskegon    Booming    Co., 

1503. 
Torreson    v.    Walla,    578. 
Torrey  v.    Burnett,    1592, 

V.   Cook,    1790. 

V.  Wallis,    849,    889. 
Torriano  v.    Young,    746. 
Tottell    V.    Howell,    223. 
Totten    V.    Phipps,    640. 
Toupin  V.   Peabody,    279,   281,   282,   286, 

1518. 
Tourret  v.    Cripps,    386. 
Tourtelott  v.  Junkin,   1837. 
Tousey  v.    Roberts,    633. 
Towerson  v.   Jackson,   413,   415. 
Towle   V.   Remsen,    42. 

V.  Swasey,    1119. 
Town   V.    Armstrong,    637,    638. 
Town  of  Lemington  v.   Stevens,   279. 
Towne  v.   Bowers,   1632,    1035. 

V.  Butterficld,    455,    501. 

V.  Thompson,   557,    574,   650,  659. 
Townley   v.   Bedwell,    1687. 

V.   Oregon  R.  &  Nav.  Co.,  2124. 
Townly  v.    Rutan,    1748. 
Townrow  v.    Benson,   2037. 
Towns  V.   Boarman,   14,   2068. 
Townsend  v.  Albers,   1337. 

V.   Ford,   268. 

V.  Gilsey,    1283. 

V.  Isenberger,      1016,      1100,     1117, 
1118,    1654. 

V.  Nickerson   Wharf  Co.,   544,   548, 
549,    550. 

V.  Read,   1167. 

V.  Scivoley,   776,   972. 

V.   S^arp,    268. 

V.  Townsend,    383. 
Trabue   v.    McAdams,    958,      987,      994, 
'  1131. 

V.  Rantage,  462. 
Tracey    v.    Atherton,    1824,    1519,    1520, 
1533,  1539,   1562,   2113. 


Tracy  v.  Union  Iron  Works  Co.,   364, 

365. 
Tradesmen  Pub.   Co.  v.   Knoxville  Car 

Wheel    Co.,    984,    985. 
Trainor   v.    Schutz,    1531. 
Trammell  v.  Craddock,  259,  261. 
Trapnall    v.    Merrick,    348,    1820. 
Trappan  v.  Morie,   1248. 
Trask  v.  Graham,  853,   967,   1075,  1128, 

V.   Little,    16D1,    1603,    1615. 

V.  Wheeler,    1361. 
Trathen    v.    Kipp,    1846. 
Travers    v.    Cook,    1936,    1951. 
Traylor  v.  Cabanne,   1132. 
Treadway  v.  Sharon,   1566,  1582. 

V.  Treadway,    1654,    1665,    1961. 
Treadwell    v.    Marden,    1189. 
Tredway   v.   Machin,    575,    594. 
Treloar   v.   Bigge,    934. 
Tremeere   v.   Morison,   379. 
Trenkman     v.     Schneider,     833\     1242, 

1243. 
Trenor  v.   Jackson,   749,    751. 
Trent  v.  Hunt,   2044,    2053,   2062. 
Treport's    Case,    424,    513,    916. 
Tress  v.   Savage,    246,   250,   251,   383. 
Trever  v.   Roberts,    265. 
Trevillian    v.    Andrew,    145. 

V.  Pine,    2052. 
Trevivian   v.    Lawrence,    422,   428,    431. 
Fribble   v.   Anderson,   456. 

V.   Frame,    1506.    1511. 
Trieber   v.    Knabe,    2011. 
Trim,   In   re,   1900. 
Trimble   v.    Durham,   1910,    1941. 

V.  Lake  Superior  &  Puget  Sound 
Co.,    175. 
Trimble's    Heirs,   v.    Ward,    267. 
Trinity  Church  v.  Cook,   850,   853,    856. 
Tripp  V.    Grouner,   2029,   2084,   2087. 

v.  Riley,     1551. 
Trisony  v.  Orr,  1671. 
Tritton  v.   Bankhart,   801,   810,    824. 

V.  Foote,   1524. 
Trousdale    v.    Darnell,    1717. 
Trout    V.    McDonald,    191. 

V.  McQueen,   1919. 
Trower   v.    Wehner,    625. 
Troy  Central   Bank  v.   Heydorn,   1173. 
Trubee  v.  Miller,  1121. 
Truesdell  v.  Booth,  1228. 
Trull    v.    Granger.    291,    544,    547,    548. 
Trulock   v.   Donahue,  1112,  1117. 
Truscott     v.     Diamond     Creek     Rock 

Boring  Co.,    751. 
Trust  Co.   of  North  America  v.   Man- 
hattan  Trust  Co.,    1916. 


TABLE  OF  CASES, 


2267 


[eeferencbs  are  to  pages.] 

Trustees  v.  Meetze,  17. 

Trustees  of  Caledonia  County  Gram- 
mar School  V.   Burt,   455. 

Trustees  of  Congregation  of  Sons  of 
Abraham,     v.     Gerbert,     1516,     1682. 

Trustees  of  Donations  v.  Streeter, 
976,    1880. 

Trustees  of  Green  Tp.  v.  Robinson, 
444. 

Trustees  of  Hocking  County  v.  Spen- 
cer, 348. 

Trustees  of  Madison  Academy  v. 
Board    of   Education,    211. 

Trustees  of  Proprietors'  School  Fund, 
Appeal  of,  211. 

Trustees   of  Schools  v.   Slieik,    1136. 

Trustees  of  Wadsworthwille  Poor 
School  V,   Jennings,    162,   1355,    1356. 

Tryon  v.  Davis,  194,  441. 

Tscheider  v.  Biddle,  1517,  1544,  1545, 
1546,    1553. 


Tubb  V.  Fort,   1113,  1117. 
Tubbs  V.   Morgan,   1119. 
Tucker    v.     Adams,     308,     1866,     1867, 
1902. 

V.  Bennett,    575,    578. 

V.   Burt,    333. 

V.  Byers,    328. 

V.  Cox,   2)51. 

V.  DuPuy,    531,    831,    1283. 

V.  Hasson,    2002,    2039. 

V.  Keeler,    329. 

V.  Linger,    273,    707,    766,    784,    785. 

V.  McClenney,    1734,    1740,    1744. 

V.  Newman,    2106. 

V.   Whitehead,   1922. 
Tucker   Zeve    &   Co.    v.    Thomas,    1911. 
Tulk  V.  Moxhay,   809,  822. 
Tuller  V.   Davis,   601. 
Tully    V.    Dunn,    799,    1154,    1332,    1882, 

1883. 
Tunis     V.     Grandy,     1148,     1149,     1165, 

1296,   2001,   2029. 
Tunis   Lumber  Co.   v.    Dennis   Lumber 

Co.,    1612. 
Tunnicliffe   v.    Wilmot,    2073. 
Tuohy   V.   Linder,    1976. 
Tuohy's  Estate,    159. 
Turly  V.  Foster,   1733. 
Turner  v.  Bachelder,   1628,   1654,   1662. 

V.   Barnes,    115,    2034. 

v.   Cameron,    2017. 

V.  Cameron's     Coalbrook     Steam 
Coal  Co.,  1864. 

V.   Davis,    413. 

V.  Footman,    1507. 

V.  Glimand,    439. 


Turner  v.  Lamb,  769,  1841. 

V.  Lowe,   468. 

v.  McCarthy,   14. 

V.  Mantonya,    97. 

V.  Meymott,   1605,  1506. 

V.  Richardson,    981. 

V.  Rusk,     200. 

V.  Strange,    606. 

V.  Thomas,    175. 

V.   Townsend,  581,   582. 
Turnej'   v.    Penn,    1837. 

V.   Sturges,   191. 
Turnure   v.    Hohenthal,   1143. 
Tuttle   V.    Bean,    1445,    1769. 

V.  Gilbert  Mfg.   Co.,   592,    593,   607, 
663. 

V.  Langley,     380,     784,     786,     1626, 
1628. 

V.  Jveiter,  1697,  1698,   1702. 

V.   Reynolds,    1358. 

V.  Walker,     1947. 
Tutton    V.    Darke,    2057,    2080. 
Tweedie  v.  Olson  Hardware  &  Furni- 
ture Co.,   1531,   1550. 
Twiss  V.   Baldwin,    679,   696. 

V.   Boehmer.    265,   1736. 
Twycross    v.    Fitchburg    R.    Co.,    849. 
Twyman  v.  Hawley,   308. 
Twynam   v.    Pickard,    902,    1069,    1384. 
Tylee  v.   McLean,    1832. 
Tyler   v.    Davis,    437,    471. 

V.  Disbrow,   558,   1220,    1239. 

V.   Heidorn,    42,   980. 
Tyler's   Estate   v.   Giesler,   939. 
Tyne    Boiler   Works   Co.    v.    Longben- 

ton,    271. 
Tyson  v.    Chestnut,    419,   535,   538,   539, 
1298. 

v.   Shueey,    2115. 

v.  Smith,    784. 


u. 

Udal   v.    Udal,    731,    737,    2116. 
Udden  v.  O'Reilly,   633. 
UdPll    V.    Peak,    17. 
Uggla   V.    Brokaw,    680,    694. 
Ulil    V.    Dighton,    1918. 

V.  Pence,     306. 

V.  Small,    4  63. 
Uhler  V.  Cowen,  1181,  1182,  1184. 
nilfelder   v.   Loughran,    1843. 
Uhlig  V.  Garrison,   459. 


2268 


TABLE  OF  CASES. 


[nKFEUENCES    AEH    TO    PAGES.] 


Ullman   v.  Hereberg-,   1498,   1499,   1809. 
Ulrich   V.    McCabe,    2102. 
Underhay  v.  Read,   415,   416.   1088. 
Underbill   v.   Collins,   1167,    1171,    1335, 

1336,    1338,   1851. 
Underwood  v.  Birchard,  535,   546. 

V.   Burrows,    818,    819. 
Ung-er    v.    Bamberger,    1467. 
Unglish  V.   Marvin,    232,    245. 
Union    Banking   Co.    v.    Gitting's,    234, 

237. 
Union  Central  Life  Ins.  Co.  v.  Tillery, 

1C15. 
Union    Mut    Life    Ins.    Co.    v.    Lovltt, 

420. 
Union  Pac.  R.  Co.  v.  Cblcag-o  R.  I.  & 

P.  R,  Co.,  1154,  1822. 
Union    Scale    Co.    v.    Iowa   Macbinery 

&  Supply  Co.,  1379,   1758. 
Union    Terminal    Co.    v.    Wilmar   &   S. 

F.   R.    Co.,    1574,    1617,    1621. 
Union   Township  v.   Bayliss,   1808. 
Union    Water    Power    Co.    v.    Chabot, 
1906,   1920,    1931,   1934. 
V.  Lewiston,    289. 
V.   Pingree,     1843. 
United  Merchants'   Realty  &  Imp.   Co. 

V.  Roth,  872,   1469,   1860. 
United  Order,   etc.,  v.   Fitzgerald,   294. 
United    States   v.    Bostwick,    709,    716, 
728,    742,    744,   745. 
V.   Gratiot,   163. 
V.  Hickey,    909,    1104. 
V.  Sliney,   174. 
V.   Stott,    2055. 
V.  "Williams,    1998. 
United    States    Mfg.    Co.    v.    Stevens, 

1672, 
United    States    Trust    Co.    v.    O'Brien, 
364. 
V.  "Wabash  W.  R.  Co.,  985. 
Unity     Joint     Stock     Mut.      Banking 

Ass'n    V.    King,    1693. 
University  v.   Tucker,    709,    733. 
University  of  "Vermont  v.  Joslyn,   422, 

945,   976,   1150,   1825. 
Unz    V.    Price's   Adm'r,    1606. 
UpdegrafC   v.   Lesem,    1402,    1573,    1591. 
Updike    V.    Campbell,    303. 
Upham   V.    Dodd,    1951. 

V.  Head,    610. 
Upper   Appomattox   Co.    v.    Hamilton, 

265,   1928,    2015. 
Upton  V.   Hosmer,   921,   940.   942. 

V.  Townend,        1157,      1259,      1260, 
1262,    1296. 
Uridias   v.   Morrell,    1742,    1792. 


Tosher  v.   LIvermore,    1681. 

V.  Moss,    139,    1484. 
Utah    Loan    &    Trust    Co.    v.    Garbutt, 

244. 
Utah    Opticsal    Co.    v.    Keith,    97.    106. 

202,   247.  1290,  1304. 
Uttendorfer   v.   Saegers,    2115.    2118. 


V. 

Vai  V.  "Weld,  574. 
Vale  V.  Trader,   1193. 
Valencia   v.    Coucb,    1794. 
Valentine  v.  Hamlett,   1938.   1964. 
V.  Healey.    408.    1476,    1503. 
v.  Jackson,  1999. 
V.  "^'^ashington,   1967.   1973. 
V.   Woods,    272,    626. 
Vallaiice   v.   Savage,    212. 
Valle   V.   Fargo,    845. 
Vallette  v.   Billnski.   437. 
Valliant  v.    Dodomede,    988. 
Van  Arsdale  v.   Buck,   254. 
Vanarsdalen    v.    Whitaker,    1814. 
"Van  Beuren     v.     Wotherspoon,     1709. 

1710. 
"Van  Blarcom  v.  Kip,  15. 
"Van     Brocklin      v.     Brantford,     1544, 

1552. 
Van   Brunt  v.   Pope,   1492.    1493. 
V.  Schenck.    1121. 
v.  Wallace,   192. 
Vance   v.    Johnron,    320,   452. 
v.   San   Antonio,   2100. 
V.  Vance,    1463. 
Van   Cleave-  v.   Wilson,    448,    464.    471, 

472. 
Vancleve   v.    Green.   2136. 
Van    Cortlandt   v.    Underbill.    1707, 
Vandekar    v.    Reeves,    1328. 
Vandenbeuvel    v.    Storrs,    1867. 
Vanderbilt   v.    Persse,    1281,    1893. 
Vanderford   v.    Foreman,    1481. 
Vandergrift   v.   Abbott,    367,    583,    587, 

1843. 
Van    Derhoef   v.    Hartman,    365. 
Vanderpool    v.    Smith.    543.    544,    1152, 

1154,    1203.    1267. 
Vandervort   v.    Gould.    192. 
Var    Deusen    v.    Sweet,    200. 
Van   Doren   v.   "Everitt,   197.    218,    1632, 

1638. 
Vanduyn  v.  Hepner,   15. 


Table  of  case^. 


2269 


[REFERENCES    ARE    TO    PAGES.] 


Vane   v.  Barnard,   731. 

Van  Etten  v.  Van  Etten.  496. 

Van    Every    v.    Ogg,    579,    1766. 

Van    Glahn  v.   Brennan,    1357. 

Van  Hoozzier  v.  Hannibal  &  St.  J.   R. 

Co.,    1666. 
Van   Horn  v.    Goken.   1251,  1255,   2019. 
Van    Home    v.    Grain.    888,    1685,    1689, 

1690. 
Van   Meter  v.    Chicag-o  V.   O.   M.   Goal 

Min.   Go.,    84. 
Vann     v.    Rouse,     521,     531,     628,     649, 

1215,   1216,   1223,   1226,   1228,   1235. 
Van   Ness   v.   Pacard,   1574,   1577,   1578, 

1580,   1614. 
Van    Patten    v.    Leonard,    1916,    1917, 

1971. 
Van   Rensselaer  v.    Ball,   1381,   1382. 
V.   Barringer,    1110. 
V.  Bonosteel,    1835. 
V.  Bradley,   1064,   1127,   1839,   1841. 
V.  Ghadwick,  1071. 
V.   Dennison,    42,    851,    1128. 
V.  Gallup,     908.     986,     1064,     1127, 

1850. 
V.  GifEord,    986.    1064,    1067,    1071, 

1129. 
V.  Hays.    42,   380.    1011,   1128,   1382. 
V.  Jewett,    1015,    1037,    1062,    1063. 
1366.    1377.    1378,    1379.    1383, 
1404,    2039. 
V.  Jones,     1015,     1064,    1127,     1840. 
V.  Layman,   1827,    1835. 
V.  Penniman,    1324.    1698,    1708. 
V.   Platner,   353,   964,    1119,   1120. 
V.   Quackenboss,    1249. 
V.  Read,  42,   380,   1110,   1128. 
V.   Smith,   42. 
V.   Snyder,   1404,    1988. 
Van  Slclen  v.  New  York,   2108. 
Van   Tassel  v.   Read,   593. 
Van  Valkenburgh  v.  Peyton,  1363. 
Van   Vleck  v.   White,   1594,   1604. 
Van    Wagner   v.   Van    Nostrand,    1101. 
Van    Wicklen   v.    Paulsen.    1084.    1101, 

1117. 
Van   Wormer   v.    Crane.    619,    758.    779. 
Varley  v.   Goppard,    887,    925,    926,   936. 
Varner  v.   Rice,    596.    1843,    1908.   1923. 
1949. 
V.  Ross,    1941. 
V.  Spencer,    1950. 
Varnum  v.   Wlnslow,    1118. 
Vason  V.   Augusta,   696. 
Vass  V.  Wales,  600. 
Vatel    V.    Herner,    1261,    12S4. 
Vatuone  v.  Gannobio,  138,  1736. 


Vaughan    v.    Blanchard,    1160. 
V.  Hancock,   252. 
V.   Matlock,   560. 
V.  Vaughan.  1790. 
Vaughn  v.  Buffalo  11.  &  P.  R.  Co.,  791. 
V.  Locke.    1793. 
V.  Strickland.    1957. 
Vausse  v.  Russell.  2017. 
Veal    V.    Hanlon.    579. 
Vechte    v.    Brownell.    2037,    2040. 
Veeder   v.   Horstmann,    262. 
Vegely    v.    Robinson,    1036,    1435. 
Venable    v.    McDonald,    310. 
Venning  v.    Bray,   10S6. 
Ventura    Hotel    Co.    v.     Pabst    Brew. 

Co.,    1491. 
Vernam  v.  Smith,   443,  445,   519,  521. 
Vernon  v.  Brown.   782. 
V.   Egmont,    354. 
V.  Gilbert.    138. 

V.   Smith,    862,    880,    889,    903,    970. 
V.  Vernon,   1073. 
Verplanck   v.    Wright,    889,    1383. 
Ver  Steeg  v.  Becker  Mooi-e  Paint  Co., 

134,    373,    1807. 
Vertue  v.  Beasley,   2030,   2079. 
Vestal   V.    Craig.    1839. 
Vetter's  Appeal,   1021,   1252. 
Viany  v.  Ferran,  1530,  1533,  1546. 
Vick   V.   Ayres,    310.    315.    316.    1868. 
Victory    v.    Stroud.    183,    1860. 
VIdvard  v.    Gushman.    822. 
Vierling   v.    Lawson.    2070. 
Vilas  V.   Ma-son,    1582,   1624, 
Villiers   v.   Oldcorn,    937. 
Vinal   V.    Richardson,    1136, 
Vincent   v.   Central   City  Loan  &   Inv. 
Co.,    1239. 
V.   Corbin,    1357,    1446. 
V.  Crane,    757,    928,    1366. 
V.  Defield,   1503.   1737. 
V.  Frelich.    1203,    1235,    1337. 
V.   Godson,    1081,    1991. 
Vinson    V.     Flynn.     1504.     1505,     1507, 

1509.    1511. 
Vinz    V.    Beatty.    288.    1894. 
Virden    v.    Ellsworth,    1837. 
Virginia  Min.    &   Imp.    Go.    v. 

169. 
Visalia    Gas   &   Elec.    L.    Co. 

167. 
Vitale,    Ex   pEirte,    1326. 
Viterbo  v.  Friedlander,   574,   1201. 
Vivian  v.  Campion,  769,  90L 
V.  Jegon,    404. 
V.   Moat.     1356. 
Voege   V.   Ronalds.    1514,   1526. 


1673. 
1146. 


Hoover, 


Sims, 


2270 


TABLE  OF  CASES. 


[UEFBBENCES    ARE    TO    PAGES.] 


Vosel    V.     Piper,    1169. 

Voigt  V.  Resor,   169,   987. 

Volsey,     Ex    parte,     235,     1047,     1048, 

2000,    2001. 
Vertmer  v.   Wharton.   1928,    1946. 
"Voltz    V.    Harris,    1145. 
Volnntl-ne    v.    Godfrey,    1192. 
Von  Berg  v.  Goodman,   1850,  1968. 
Von    Glahn    v.    Brennan,    15. 
Von    Knoop    v.    Moss,    2007. 
Voorhies    v.    Cummings,    1813. 
Voorhis  v.   Freeman,    1563. 
Vorrath  v.  Bnrke,   633,   637,   670. 
Vorse  V.  Des  Moines  Marble  &  Mantel 

Co..   848,    850,    853.    856. 
Vos   V.   Dykema,    309. 
Vosburgh  v.   Corn,   1473,  1474. 
Voss   V,    Bassett,    1673. 

V.   King,    17,    178,    471,    516,    1477, 
1479,    1779. 
Voulladre    v.    Wise,    1136. 
jVowles    V.    Miller,    2117,    2118. 
Vyvyan  v.  Arthur.   889,   1016,   1031. 


w. 

Wacholz    V.    Griesgraber,    1291,    1413, 

1771,    1815. 
Wadden  v.  DeJet,   751,  754,  759. 
Wade    V.    Baker,    216. 

V.  Comstock,    867,    1275. 

V.  Halligan,    541,    2029. 

V.  Hemdl,    1280,    1294,    1302. 

V.  McCormack,     331. 

V.  Marshe,    2041. 

V.  Newbern,     2D2,     351. 

V.   South    Penn    Oil    Co.,    91,    496, 
1322,    1674,    1686. 
Wade's    Case,    1096,    1097. 
Wades   v.   Piggatt,   1901,    1928,    2015. 
Wadge    V.    Kittleson,    449. 
Wadham    v.    Marlowe,    960,    961,    1123, 
1&21. 

V.      Postmaster    General,    1366. 
Wadleigh   V.  Janvrin,    1563,   2116. 
Wadley  v.  WTlliams,    1663,    1952,   1953. 
Wadman   v.    Bnrke,    1554. 

V.   Calcraft,    1411.    1413. 
Wads-worth    v.    Wendell,     276. 
W^adsworthville       Poor       School       v. 

Meetze,    1354. 
Wafer  v.  Mocato,   1408. 
Waggaman  v.   Bartlett,    1434, 


Waggener    v.    McLaughlin,     463,     843. 
Waggoner    v.    Jermaine,    680. 

V.  Preston,    1445. 
Wagner   v.   Cohen,    879,    1118,    2134. 

V.  Ellis,    2134. 

V.  Welling,    64S,    760. 

V.   White,    1191,   1300. 
Wahl   V.   Barroll,    88,    892. 
Wainscott  v.   Silvers,  742,  776. 
Wait,   In    re,    1090. 
Wait   V.    Maxwell,    200. 
Waite  V.   Corbin,   1930. 

V.   O'Neill,    762,     1201,     1260,    1285, 
1287. 
Waitt    V.    Ewing,    2059. 
Wake  V.    Hall,   1566,   1577. 
Wakefield    v.    Brown,    771. 

V.   Sunday  Lake   Mrn.    Co.,   1362. 
Wakeman   v.    Lindsey,    2062. 
Walbridge  v.  Pruden,  1991. 
Walcott   V.    McNew,    1552. 
Walden    v.    Bodley,    1354. 

V.   Conn,    2101,   2115,    2133. 
Waldo  V.  Hall,  965. 

V.   Jacobs,    56,    1418. 
Waldorf    Astoria    Segar    Co.    v.    Salo- 
mon,   8D2,    829,    830. 
Waldron    v.    McCarty,    534. 
Wales  V.   Mellen,   324. 
Walhoefer    v.     Hobgood,      1937,     1941, 

1947. 
Walker   v.   Clifford,    2109,   2125. 

V.   Dowling,    1365,    1753. 

V.   Pidmondson,    1675,    1686. 

V.  Ellis,    1418. 

V.  Engler,  1368,  1388,  1402,  1495. 

V.  Fisher,  495,  50O. 

V.  Fitts,  1664. 

V.  Furbush,  1172,  1422,  1883,  1884. 

V.  Giles,  2073. 

V.   Githens,    1173,   1486. 

V.  Globe  Mfg.  &  Imp.  Co.,  648. 

V.   Gode,    54,    1455. 

V.   Hadduck,    lO-e^. 

V.  Harrison.,   461,   463,    843. 

V.   Hatton,    754,    771. 

V.  Johnson.    2007,     2008. 

V.  Mauro,    1886,    1895. 

V.  Morgan,    334. 

V.  Patterson's    Estate,    1913,    1916. 

V.  Physick,    990,    995,    996. 

V.  Reeve,    991. 

V.  Richardson,     1343. 

V.   Seymour,    1540. 

V.   Shackelford,    254,    1893. 

V.   Sharpe,    1446,    1448,    1456,    1457. 

V.  Sherman,    15^2. 


TABLrE  OF  CASES. 


2271 


[rbfebences  aee  to  pages.] 


Walker  v.  Swayzee,  594. 

V.  Tipton,    221,    1857,   1878. 

V.   Transue,    241,    245. 

V.   Tucker,    784,    1251,    1267. 

V.  Wadley,     932,     942,    laSS,     1398, 

1314,    1515,    1541. 
V.  Whittemore,    847,    850. 
Walker  Ice  Co.   v.   Am.   Steel  &  Wire 

Co.,    21,    828,    829,    1484. 
Wallter's  Case,   879,   880,  881,   885,   960, 
961.  968,   1029,   1068,   1100,   1101.  1123, 
1126,    1820,    1821. 
Walker's  Estate,  In  re,  101. 
Wall  V.  Hinds,  852,   960,  962,  963,  1055, 
1124,     1125.     1203,     1567,     1574,     1575, 
1678,    1579.    1612,    1821,    1832, 
Wallace  v.   Bahlhorn,   78. 
V.   Coe,    1208. 
V.  Dimmony,   1347. 
V.  Dinning,    1328. 
V.   Dorris,    1519,    1536. 
V.  Fletcher,    2113. 
V.   Fourth      United      Presbyterian 

Church,    1173. 
V.  Fraser,   2031. 
V.  Harmstad,    1012. 
V.  Johnson,    2006. 
V.  Kennelly,    1328,    1330. 
V.  King,    2084. 
V.  Lent,    298,    299,    1263. 
V.  McLaren,   1832,    1833. 
V.  Ocean    Grove      Camp      Meeting 

Ass'n,    471,    1354. 
V.   Scoggins,   262,   263. 
Wallach  v.  Chesley,  1957,   2090. 
Wallbrecht  v.   Blush,   458. 
Waller  v.   Morgan,    265. 
Walley  v.  Radcliff,   122,   125,   1553. 
Wallin   V.    Murphy,    1949. 
Wallis  V.   Hands,    290,    537,      543,     544, 
1344. 
V.  Harrold,    1885. 
V.   Savill,    2034. 
Walls  V.   Atcheson,   1337,   1338. 
V.   Hinds,   1832. 

V.  Preston,   184,     1S6,      187,      1718, 
1743,    1745. 
Wain  V.   O'Conner,    788. 
Walrond    v.    Hawkins,    942,    947,    1399. 
Walsal  V.  Heath,   191. 
Walsh  V.   Colclough,    233. 
V.  Frey,    639. 

V.  Lonsdale,    373,    1046,    1048. 
V.  Martin,    1542. 
V.  Mead,    680,   694. 
V.   Sichler,   1583,   1685,   1588,   1615. 
V.  Walsh,   2021. 


Walter  v.   Dennehy,    GT9. 

V.   Dewey,    1393.    1095,    1096. 
V.   Rumbal,    2062,   2065. 
Walters  v.   Hutchlns'  Adm'x,   715,   785. 
V.  Meyer,    314. 

V.  Northern   Coal   Min.     Co.,     213, 
972,    1134,    1-827. 
Walton   V.    Cronly,    975,   976,    1129. 
V.  Meeks,    1694. 
V.   Stafford.    982.    1046. 
V.   Waterhouse,    763. 
Walworth   v.   Harris,    1950. 
Wampler  v.  Weinmann,   1217. 
Wamsganz  v.   Wolff,   1295,    1431,   1509. 
Wariamaker   v.    Buchanan,      39,      1C62, 

2020. 
Wansbrough   v.    Maton,    1588. 
Wanton   v.   Coppard,    806. 
Waples  V.  Jones,   1721. 
Ward  V.  Andrews,  2116. 

V.  Beatty,    2077. 
Ward  V.  Bull,   1199,   1202,   1210. 
V.  Burg'her,   1739. 
V.  Day,    1020,      1386,      1390,      1393, 

1996. 
V.  Earl,   1572,   1621. 
V.   Edesheimer,    1150. 
V.   FagLn,   574,    576,    628,   629. 
V.   Gibbs,   1962.   1964. 
V.  Grigsby,    2092. 
V.  Hall,    1694. 
V.  Hasbrouck,    231,    235,    236,   1136, 

1514,  1517,  1518,   1541. 
V.   Hinkleman.   122,   640,   659,   789. 
V.  Kelsey,    586.    592.    599,    607. 
V.  Kilpatrick,   1564. 
V.  Lumley,   1314,  1315. 
V.  Macauley,   1671. 
V.   Philadelphia,    446,    465. 
V.  Pittsburg  C.  C.  &  St.  L  R.  Co., 

1795. 
V.  Small.    37. 
V.   Smith,  547. 
V.  Toronto.    1694.    1696. 
V.  Vance,    828. 
V.  Walker,    1920. 
V.  Warren,    2112. 
V.   Wilson,    1146. 
Warden  v.   Etter,  115,  151.  1432. 
V.  Usher,  1629. 
V.  Watson.    11,    33. 
Warder  v.   Henry,    707,    713,    729. 
Wardroper   v.    Cutfield,    1076. 
Ware  v.   Booth,   1401. 
V.  Chew,    827. 
V.  LiLligow,  518,   537,   540. 


2272 


TABLE  OF  CASES. 


1301, 


Ware  v.  Nelson,  1484. 

V.  Warwick,    1731. 
Waring  v.  Dewberi-y,   1253. 

V.  Kin??,    1470. 

V.  Louisville  &  N.  R.  Co..  127,  289. 

V.   SlinglufE,    2043. 
Warne    v.    Prentiss,    1890. 

V.  Wagenor,    1045. 
Warner  v.   Abbey,   39,   184,    1650,    1634. 

V.   Cochrane,    343,    887,      935,      940, 
1549. 

V.  Hale,   244,   255,    259,   1124. 

V.  Kitchens,   742,   762,   776,   952. 

V.  Hoisington,    39,   187. 

V.  Page,    114. 

V.  Tanner,  109. 

V.  Wiliington,    384. 
Warren  v.  Comings,   1851. 

V.   Ferdinand,    1881. 

V.  Forney,    2033. 

V.  Jones,    1931. 

V.  Kauffman,    793. 

T.  Leland,    870,    956. 

V.  Ldddlee,    1620. 

V.  Lyons,  1138. 

V.  Wagner,    776,    777,    1161 
1S02. 
Warren  County  v.  Gans,   712,   737. 
Warriner,   In  re,   850. 
Wartman    v.    Richards,    1746. 
Washburn,   In   re,   981. 

V.    Black,    2059. 

V.  White,  1686. 
Washington  v.  Conrad,   483. 

V.  Moore,  439,  464. 

V.   Williamson,    1248,    1253,    1255. 
Washington  Bank  v.  Hupp,   320. 
Washington  Mills   Emery  Mfg.  Co.   v. 

Commercial   Fire   Ins.   Co.,   273. 
Washington    Nat.      Bank      v.       Smith, 

156€. 
Washington  Natural  Gas  Co.  v.  John- 
son. 962,  963,  970,  971,   987,  1131. 
Washington  Real  Estate  Co.  v.  Roger 
Williams    Silver    Co.,    136,    153,    155, 
950,    951. 
Wasserma.n  v.  Carroll,    1166. 
Waterhouse    v.    Joseph    Schlitz   Brew. 

Co.,   675,    684.    691,    694,    699. 
Waterman  v.   Clark,   1605, 

V.  Haikness,   845. 
Waters  v.   Bew,   1675. 

V.   Griffith,  1047. 

V.  Haynes,   1794. 

V.  Roberts,    1439. 

V.  Williaaison,    134,    1445. 


[refekences  are  to  pages.] 

Waters  v.  Young,  1446. 
Watertown  v.   White,   221,   445, 
Watherell  v.  Howells,   709. 
Watkins  v.  Balch.  246,  261. 

V.   Duvall,    1106,    1117,    1902,    1923. 

V.   Goodall.    633.    636. 

V.  Green.   817. 

V.  Peck,    218. 

V.  Milton,   26,    34. 
Watrigant    v.    Dufort,    1494. 
Watriss  v.  Cambridge  Nat.  Bank,   768, 
778,    78.^?,   784,    1585,   1586,    1588,    1693, 
1594,  1596. 
Watson,   Ex   parte,   1248. 
Watson   v.   Almirall,    582,   1223. 

V.   Boswell,    2086,    2087,    2089. 

V.   Erainard.    1857.    1887. 

V.   Fletcher,    1384,    1386. 

v.   Gardner,    1703. 

v.   Home,   842. 

V.  Hooton,    590. 

V.   Hunkins,    1107. 

V.   Hunter,    730. 

V.   Janion,    1057,   1059. 

V.  Johnson,    1933. 

V.   Idler,    1733. 

V.   Lane,    1608. 

V.  McEachin,    335. 

V.  Main,    2028. 

V.  Merrill,    1174. 

v.  Mfrike,    2089. 

V.   Mdggey,    1276. 

V.  Moulton,    1235. 

V.   O'Hern,    265. 

V.   Penn,    1035,    1040.    1072. 

V.   Pugh.  314. 

V.   Smith,    17. 

V.  Tollver.    1718. 

v.   Waud.    1148. 

V.  Whitney.    1497. 
Watson  Coal  &  Min.  Co.     v.     Casteel, 

1047. 
Watt   v.    Scofield,      1907,      1926,      1927. 

1929,   1960. 
Watters  v.   Smaw,   1237. 
Wattles   V.   South  Omaha  Ice   &   Coal 

Co.,  763,   1192. 
Watts  V.  Coffin,   1272. 

V.   Fox,   1799. 

V.   Lehman,    1582,    1624,    1673. 
Watts   Campbell    Co.      v.      Yuengling, 

1572. 
Way    V.    Holton,    1133.    1877. 

V.   Myers.    1260. 

V.  E.aymond,    1865. 


TABLE  OF  CASES. 


2273 


[REFERENCES    ARE    TO    PAGES.] 

Way    V.    Reed,    964,    1137,    1140,    1141, 

1143,    1174,    1176. 
"Wayne  v.  Lapp,  1198,  1236. 
"Weander  v.    Claussen     Brew.      Ass'n, 

909,   910. 
Weatherall    v.    Geering,    930,    933,   937. 
Weatherley  v.  Baker,   918, 
Weathersby  v.   Sleeper,   1614. 
Weaver  v.  Coumbe,   278,  279,  408. 
V.  Jones,  1868. 
V.  Shipley,   267. 
V.  Southern      Oregon      Co.,      348, 

1871. 
V.  Wood,    378. 
Webb  V.   Austin,    423. 
V.  Bailey,    1851. 
V.  Hyman,    1736,   1746. 
V.  Jiggs,  1S19. 
V.  King,   1815. 
V.  Plummer,  341,  788. 
V.  Russell.   88,    92,     99,     421,     898, 

1031,    1167. 
V.  Seeking,   105. 
V.  Sharp,    1926,    1949. 
Webber  v.   Franklin  Brew.   Co.,   1573. 
V.   Shearman,  1994.  2001,   20^3. 
V.  Smith.  1413. 
Weber  v.  Loper,  2078. 
V.  Rogers,    1814. 

V.  Vernon,    2045,    2060,    2061,    2081, 
2082,   2088,   2096.  . 
Webster  v.   Bates   Machine   Co.,   1405. 
V.  Blodgett,    263. 
T.  Calef.   1879. 
V.  Conley,    218. 
V.  Nichols.    857,      88S.      941,      1368. 

1823,    1969,    1977. 
V.  Nosser,   769. 
V.  Webster,   708. 
Wecldall   v.   Capes,    1316,   1319. 
Weeber  v.  Hawes,   1206,  1217. 
Weed  V    Crocker,   376.  1048.   1242. 

V.  Lindsay.  372.   373,  374,  376,  377, 

380,    381. 
V.  Standley,        1965,      1967,      1973, 
1975. 
Weeding  v.  Weeding,   1687. 
Weeks.  In  re,  1078. 
Weeks  v.  Birch,  491,  512. 
V.  Hunt,   1098. 

V.  International    Trust    Co.,    1179. 
V.  Ring,    1198. 
V.  Sly.   1460,   1505,   1511. 
v'  Weeks,   219,  220. 
Weeton     v.     Woodcock.     1586,     15M. 

1591,   1624. 
Wegg-Prosser  v.  Evans,  2032. 


Wegner   v.   Lubernow,   44,    56. 
Weichselbaum  v.   Curlett,  463,   839. 
Weide  v.  St.   Paul  Boom  Co.,   950, 
Weigall  v.  Waters,  581, 
Well  v.   Abrahams,   804,   812. 
V.  Defenbaugh,    1124. 
V.  McWhorter,    1930,   1931,   1932. 
Weller  v.  Pancoast.  1282. 
Weinberg  v.  Ely,  597. 
v.  Greenberger,    393. 
V.   Savitzky,    1209,    1216. 
Weinberger   v.    Katzensteln,    643,    794. 
Weinhandler    v.    Eastern    Brew.    Co., 

951,    1743. 
Weinhauer  v.  Eastern  Brew.  Co.,  167. 
Weinsteine  v.   Harrison,   574,   575,  576, 

1832. 
Weir  V.   Barker,   1546. 

v.  Brooks,    2038,    2047. 
Weisbrod   v.    Dembosky,    934. 
Weiss  V.   Jahn,   2024,   2039. 

v.  Mendelson,   1350. 
Wiessner  v.  Ayer,  385. 
Welch,  In  re,  1600. 
Welch  V.   Adams,   414. 
V.  Andrews,    1869. 
V.  Ashby.    1756.    1793,    189^. 
V.  McAllister.    789. 
V.  Walsh,    1145,    1146. 
V.  Wlnterbnrn,    381. 
Welcome   v.    Hess,    1322,      1334,      ISSS- 
I  1339,   1348. 

V.  Labontee,  1887. 
Welder  v.  McComb.  457. 
Weldon  v.   Lytle,   217. 
Welham   v.   Lingham,    580. 
Weller  v.  Carnew,  1418,   1434. 
Welles  V.  Castles,  1204. 
Wells  v.  Cowles,  1877. 
V.  DeLeyer,    1544. 
v.  Higgins,    984. 
V    Hollenbeck,    16&0.    1664. 
v.  Hornish,  1999,   2038,   2077,   2089. 
V.  Mason,   5d9. 
V.  Moody,   2082. 
V.  Porter,    2013. 
V.   Sheerer,  17,  1354. 
V.  Thompson.  1927. 
Welsh  V.  Ferd.  Heim  Brew.  Co.,   351. 

V.  Schuyler,    973. 
Welshbillig  v.  Dienhart.   364,   365. 
Weltner's  Appeal.  1249. 
Welz  V.  Bhodius,  367. 
Wendell    v.    Stone,    388.    394. 
Wenger  v.  Raymond,   1748. 
Wentworth  v.  Abraham,   1075. 


■L.  and  Ten.  143. 


2274 


TABLE  OP  CASES. 


[RRFEIiENCES    ARE    TO    PAGES.] 


Wentworth  v.  Portsmouth  &  Dover  R. 

Co.,  39,  185,  187,  2115. 
"Wentz   V.    Fincher,   1562. 
Wenzler  v.  McCotter,  680,   690. 
Werlein   v.    Janssen,    1516. 
Werner    v.    Footman,    14G6,    1795. 
V.   Padula,    1209,    1214. 
V.   Ropiequet,    1995. 
Werth     V.      London     &     Westminster 

Loan    Co.,    2056. 
Wertheimer  v.   Hosmer,   809,  810,   889, 
934,    947,   970. 
V.  Saunders,  60S,   609,  612,    615. 
Wesener    v.    Smith,    632,    634. 
Wessel  V.  Gerken,  66  5. 
Wessels  v.   Rodifer,   237,  257. 
Wessey  v.   Ladd,   17. 
West  V.   Blakeway,   1609. 
V.   Cartledg-e,    1880. 
V.   Dobb,    887,    924,    934,    936,    1365. 
V.  Hart,    780. 

V.   Lassels,    868,    1065,    1101. 
V.   Lungren,    1482. 
V.   Nibbs,    2079. 
V.   Sink,    1249,    1254. 
V.   Spaulding,    524. 
V.  Treude,    147,   156,   2102. 
V.   Washington  &   C.    R.  Co.,   388. 
West  Chicago  Masonic  Ass'n  v.   Cohn, 

688,  689,   690. 
West  Chicago   St.   R.    Co.   v.   Morrison, 

Adams  &  Ellen  Co.,  265,   1575. 
West  Coast  Lumber   Co.      v.      Apfield, 

1567,    1568,    1575. 
West  Concord  Mill.   Co.     v.     Hosmer, 

1167. 
West  Ham   Central  Charity   Board  v. 
East  London  Water  Works  Co.,  739, 
718. 
West    Kushkoning      Congregation      v. 

Ottesen,   433. 
West    Shore    Mills    Co.      v.      Edwards, 

494,    504,    880.    1100,    1101,    1298. 

West   Shore   R.   Co.   v.      Wenner,      157, 

025,    930,   532,    946,    1366,    1385,    1388, 

1591. 

West  Side  Paper  Co.,  In  re,  1248,  1900. 

West  Side   Sav.   Bank  v.  Newton,    558, 

649,   829,   1270. 
West  Virginia  C.   &  P.   R.   Co.    v.   Mc- 

Intire,    348,    853,    888,    970. 
Westbrook  v.  Harrison,  2049,  2051. 
Westchester  Trust  Co.  v.  Hobby  Bot- 
tling Co.,    282,    959. 
Western   Bank   v.    Kyle,    1368,    1369. 
Western    Book    &    Stationery    Co.    v. 
Jevne,  1810. 


Western  Boot  &  Shoe  Co.  v.   Gannon, 

373,  376. 
Western  Maryland  R.  Co.  v.  Orendorf, 

348. 
Western    New    York    &    P.    R.    Co.    v. 

Rea,    1516,   1541. 
Western  North   Carolina     R.      Co.      v. 

Deal,    1574,    1581,   1588. 
Western    Transportation    Co.    v.    Lan- 
sing,   61,    62,   102,   1521. 
Western  Union  Tel.  Co.  v.  Ann  Arbor 
R.   Co.,    417,   419. 
V.   Burlington  &  S.  W.  R.  Co.,  204. 
V.   Fain,    242. 
Western  &  A.  R.  Co.  v.  Cox,   791. 
Westervelt  v.  Ackley,   195. 
Westgate   v.   Wixon,   2116. 
Westlake   v.    DeGraw,    1843,    1883. 
We.ctmoreland    v.    Foster,    1113,    1923, 

1955,    1961. 
Westmoreland    <&      Cambria      Natural 

Gas  Co.  V.  De  Witt,  1363,  1396. 
Weston    V.    Collins,    1684. 
V.   Gravlin,    2102. 
V.   Metropolitan        Asylum        Dist. 

803,     1053,    1054,     1055. 
V.  Ryley,  1840. 
V.  Weston,   1488. 
Westropp   V.    Ellingott,    728,    784. 
Westwood  V.   Cowne,   2063. 
Wethcrbee'v.   Ellison,   787. 
Wetherill    v.    Gallagher,    1623,    1898. 
Wetsel    V.    Mayers,   1936,    1948,    1951. 
Wetterer    v.    Soubirous,      1289,      1733, 

1734,    1767. 
Wetzel   V.    Meranger,    1403,    1511. 
Wetzell  V.   Richcreek,    966,   967,    968. 
Wey   V.    Tally,    1821,    1823. 
Whalen  v.  Leisy  Brewing  Co.,  1541. 
Whaley  v.   Jacobson,    39. 
V.   Laing,    21. 
V.  Whaley,    16,   17. 
"Whalin   v.    White.    490,    504,    877,    1298. 
Wharton  v.  Anderson,  1055. 
V.  Naylor.    2019.    2021. 
V.   StoutenburgTi,      260,      262,      263, 
387. 
Wheat  V.  Watson,'  12,  1656. 
Wheeler   v.    Baker,      914,      915,      1055, 
1057. 
V.  Bramah,    981. 
V.  Branscombe,    415,   416. 
V.   Conrad,   234. 
V.  Cowan,   68,   231,   1484. 
V.  Crawford,    576. 
V.  Dascomb,    73,    136. 


TABLE  OF  CASES. 


2275 


lEEFEnKNCES    ABE    TO    PAGES.] 

Wheeler  v.  Earle,  810,  1003,  1365.  1366, 
1376,   1384,   1385. 
V.  Frankenthal,    230. 
V.  Hill,    908,    1698. 
V.  Kirkendall,   1644,   1645. 
V.  Montefiore,    321. 
V.  Reitz.   1717,   1792. 
V.   Shed,    1164,    1891. 
V.   Stevenson,    1273. 
V.  Thorogood,   290. 
V.  Wheeler,    142,   1719,   1726. 
V.  Wood,   113,   128,   152. 
Wheelock   v.    Warschauer,      171,      505, 

506,   1163,   1298,   1299,  1767,   1779. 
Whetstone  v.   Davis,   67,   1528. 
V.  McCartney,    1329,   1330. 
Whicher  v.  Cottrell,  964,  1328,  1454. 
Whipley  v.  Dewey,  1591,  1604. 
Whipple  V.   Foot,   1629. 
V.   Gorsuch,    10. 

V.   Shewalter.        267,      1441,      1749 
1763,    1785,    1803. 
Whistler   v.   Paslow,    274. 
Whitaker  v.   Brown,    273. 
V.   Forbes,    1821. 
V.  Hawley,    1022,    1192,    1193. 
V.  Whitaker,    449. 
Whitbeck  v.  Skinner,   1237,   1843. 
Whitchot  V.  Fox,  1387. 
Whitcomb  v.   Brant,   1285,   2073. 
V.  Cummings,   1129,   1130,    1329. 
V.  Mason,    631. 
V.  Starkey,   975,    976,    980. 
V.  Tower,    1965,    1974. 
White,    In    re,    1783. 
White  V.  Albany  R.  Co.,  752,  754. 
V.  Arndt,    1588,    1603. 
V.  Arthurs,    1736. 
V.  Bailey,    1734,    1783. 
V.  Barlow,   486,   487. 
V.  Bayley,    333. 
V.  Berry,   1335,    1338. 
V.  Binstead,    1254,    1255. 
V.  Cannon,  209. 
V.  Coatsworth,    1811. 
V.  Cutler,    737. 
V.   Elwell,   29. 

V.   Freedman's    Bank,    1945. 
V.   Griffing,  980,   982,   1140. 
V    Heywood,    2054. 
V.  Hoeninghaus,    2019,    2024,    a028 
V.  Holland,    231. 
V.  Hunt,    982. 
V.  Kane,   804,   835.   876. 
V.  King,    723. 
V.  Livingston.   312. 


White   V.   McAlister,    1945,    1961,   1963. 
1964. 
V.  McCann,  742. 
V.  McMurray.    1370. 
V.  Mandeville.  '1086,    2075. 
V.  Maynard,    35,    36,    232. 
V.  Mealio,    14. 
V.  Molyneux,    1191.    1194. 
V.  Montgomery,   697. 
V.  Naerup,   1364. 
V.  Nelles,   464,   489. 
V.  Nicholson,   781. 
V.   Parkin,    362. 
V.   Quinn,    1266. 
V.   Smale,    2044. 
V.   Sohn,   1481. 

V.   Southend   Hotel   Co.,    809,   889. 
V.   Stellwagon,    1805. 
V.  Thomas,   983,   1968. 
V.  Thurber,   9. 

V.  Tyndall,  344,  355,  1834,  1836. 
V.  Wagner,   738,   739. 
V.  Walker,    164.    1057,    1002,    1140. 
V.  Warner,    1409. 
V.  West,   1064. 
V.  Wieland,   390. 
V.   Y.  M.  C.  A.,  1240. 
White's  Appeal,  1574.   1577.  1600,  1602. 
Wliite's   Charities,   In  re,  270. 
White    Stone    Quarry    Co.    v.    Belknap 

&  D.   Stone  Co.,   1707,    1708. 
White   Water   Valley      Canal     Co.      v. 

Comegys,   1828. 
Whiteacre   v.    Symonds,    1463. 
Whited    V.    Hamilton,    1977,    1978. 
Whitehead    v.      Bennett,      1397,      1576, 
1577. 
v.  Cornstock   &   Co.,   559,   562,   583, 

645. 
V.  Palmer,   1133. 
V.  Taylor,   2052. 
Whitehouse   v.    Aiken,    819,   836. 
W^iteley  v.  McLaughlin,  562,  568. 
Whitfield   V.    Bewit,    731. 

V.  Weedon,   748. 
Whitford    v.    Laidler,    279,      280,      359, 

1894. 
Whitham  v.  Kershaw,  709.  728,  735. 
Whithingham  v.   Andrews.   32. 
Whiting  V.   Brastow.    1576. 
V.  Edmunds,  15,  17,  18. 
V.  Ohlert,   231,  235. 
V.  Pittsburgh  Opera     House     Co., 
234,   263. 
Whiting    &    Co.    V.    Lake,    1995,    2005, 
20(T6. 


2276 


TABLE  OF  CASES. 


[eeferences  are  to  pages.] 


Whitley  v.   Roberts.    2043. 
Whitlock  V.  Duffield,  1712. 

V.  Horton,   405. 
Whitman    v.    Nicol,    855. 
Whitmarsh  v.   Cutting-,   1636. 

V.  Walker,    1574. 
Whitmore  v.  Orons  Pulp  &  Paper  Co., 

567,   650,   652. 
Whitney  v.  Allaire,  291,   297,  299,  376, 
561,   1843. 

V.  Brown,    1506. 

V.  CarJe,    2073. 

V.   Dart,    1726. 

V.  Gordon,  1172,  1422,  1435. 

V.  Meyers,   1343,    1346. 

V.  Olney,   817. 

V.   Swett,   112,      1404,      1461,      1508, 
1509,    1511,   1672,   1766. 
Whittaker    v.    Barker,    1341. 

V.  Perry,    1608,    1510,    1511. 

v.  Southwest    Virginia    Improve- 
ment Co.,   200. 

V.  West    Boylston,    637. 
WTiittemore   v.    Smith,    283,    865. 
Whittenmore  v.   Moore,   1489. 
Whittier  v.  Stege,   312. 
Whittle  V.   Webster,    579,   586. 
Whitton  V.   Bye,   19S9. 

V.  Milligan,    2062. 

V.  Peacock,    897. 
Whitwell   V.  Harris,    749,   1753. 
Whitworth  v.  Maden,  2087. 
Wholey  v.   Kane,   638. 
Wick   V.   Eredin,    1563,    1565,    1600. 
Wickenden  v.   Webster,   803. 
"Wicker   v.    Lewis,    773. 
Wickersham  v.   Irwine,    288,   972,   973. 
Wickey  v.   Eyster,   1249. 
Wickham  v.  Hawker,  22,  273,  1106. 

V.  Henfhorn,  1317. 
V,ncks  V.  Jordan,  1640. 
Wickson  v.  Monarcli  Cycle   Mfg.   Co., 

230. 
Widing   V.    Penn    Mut.    Life    Ins.    Co., 

632,    633,    665,    669. 
Wien  V.  Simpson,  159. 
Wiener  v.   Graff  &  Co.,   1529, 
Wiese  v.   Remme,   616. 
Wiessner  v.  Ayer  383. 
Wiggin  V.   Wiggin,   483,   1858. 
Wiggins   Ferry   Co.    v.   Ohio  &  M.    R, 

Co.,    29,   1577. 
Wigglesworth   v.   Dallison,    237,    1637, 

1683. 
Wight  V.    Dicksons,    808. 

V.  Hopetoun,    1533. 


Wigley   V.    Asliton,    1874. 
WiJber  v.  Pollansbee,  629,  630. 

V.  Paine,   262.   263. 
Wilbom   V.  Whitfield,   454, 
Wilbur  V.    Nichols,   88. 

V.  Wilbur,  1879,  1880. 
Wilcher  v.  Robinson,  168. 
Wilcox   V.   Alexander,    101,    1132,    1939. 

V.  Cate,   365,    559,    560,    720. 

V.  Hines,    562,   565,    66,      567.      652, 
658,    662. 

V.  McKenzie,    2079. 

V.  Montour  Iron  «&  Steel  Co.,  289, 
1418,   1481,  1531,   1543. 

V.  Palmer,    296. 

V.   Raddin,    1476. 

V.  Wood,  51,  64. 

V.  Zane,  632,  635,  665. 
Wilcoxen  v.     Haybarger,     459,      1371. 

1701. 
Wilcoxon  V.  Donelly.   1106. 
Wilczinski    v.    Lick,    314,    1933. 
Wild  V.    Serpen,   502. 
Wilde   V.    Cantillon,    1505. 
Wilder    v.    Eubanks,    1768. 

V.  House,    1509,    1510. 

V.  Peabody,    1043. 

V.   Speer,    2058,    2060. 

V.   Stace,    253,    262. 
Wildey  Lodge  v.  Paris,  811,  949,  1354. 
Wildman    v.    Taylor,   94,      1368,      1376. 

1578. 
Wildridge  v.  McKane,  1694. 
Wilds   V.   Layton,    784. 
Wiley   V.    Athol,    344. 
Wiley's   Estate,    955. 
Wilgus    V.    Gettings,    1614. 

V.  Lewis,  1488. 

V.  Whitehead,    1042,    1058. 
Wil'helm  v.  Mertz,   279. 
V/ilke  V.   Campbell,  1434,  1751. 
Wilkerson    v.    Farnham,      1693,      1843, 
1846. 

V.  Thorp,   1974. 
Wilkes  V.   Adler,    1937,   1949,    1956. 

V.  Steele,    1237. 
Wilkins  v.  Evans,   1685. 

V.  Pensacola  City  Co.,  17. 

V.  Taliafero,     2002,    2003. 

V.   Wingate,    440,    1822,    1886,   1895. 
Wilkinson   v.    Calvert,    1426. 

V.  Cawood,    379. 

V.   Clauson,  295,  297,  365,  &57,  558, 
560,   561. 

V.  Galley,    1438,    1498. 

V.  Collyer,   850. 


TABLE  OF  CASES. 


^277 


[REFERENCES    AEE    TO    PAGES.] 


Wilkinson  v.   Detroit  Steel  &   Spring 
Works,   692. 

V.  Hall,    133,   321.   345,    1831. 

V.  Ibbett,  2065,  2082. 

V.  Ketler,  1905,  1908,  1972,  1974, 
1975,  1977. 

V.  Libbey.  845,  856. 

V.  Nichols,    1692. 

V.  Peel.   1994. 

V.  Pettit,  887,  1549. 

V.  Rogers,    801. 

V.  Roper,   314. 

V.   Stanley,    1290,    1293,    1294,    1817. 

V.  Wilkinson,    712,    715,    921,    1887. 
Willard  v.  Benton,  1376,  1377,  1378. 

V.  Blount.    839. 

V.   Bunting,    608. 

V.  Harvey.   100,   4  20. 

V.  Rogers,   1969,   1973. 

V.  Tayloe,    1675,    1G77,    1685,    1691. 

V.  Tillman,   1086,   1107,   1110,    1208, 
1830,    1839. 

V.  Warren,    1295,    1508,    1510. 

V.  Wing,  1652. 

V.  World's       Fair       Encampment 
Co.,  1971,  1972. 
Wlllcox  V.   Bostick,   59,   291. 

V.  Kehoe,  900. 
Willett  V.  Barle,  1081. 
Willey  V.    Conner,    1627,    1628. 
Willey's   Estate,   In   re,    1141. 
William  Street,  In  re,  2131. 
Williams,  In  re,   715. 
Williams  v.  Ackerman,  245. 

V.  Apothecaries      Hall      Co.,      129, 
233,   1482. 

V.  Bartholomew,    1087. 

V.  Beach    Pirates     Chemical    En- 
gine Co.,   1368. 
V.  Bemis,    390,    1657. 

V.  Bennett,    143. 

V.  Bosenquet,    292,    293,    888,    957, 
975,  976,  1129,   1823,  1843. 

V.  Braden,    1919. 

V.  Brisco,  394. 

V.  Burrell,    340,    518. 

V.  Cleaver,    7,    38,    184,    1648. 

V.  Craig,  852. 

V.  Dakin,   946. 

V.  DeLisle    Store    Co.,    1926,    1929, 
1930. 

V.  Deriar,    130,    246,    248. 

V.  Downing,    957. 

V.  Earle,    771,    887,    936,    942,    943, 
969. 

V.  Evans,  388,  389. 


Williams    v.    Foss-Armstrong    Hard- 
ware   Co.,    1489. 

V.  Gabriel,    537. 

V.  Garrison,   462. 

V.   Getman,   523,    538. 

V.  Gibson,   33. 

V.   Glover,    1048, 

V.  Green,  1666. 

V    Grey,  2066. 

V.  Halbert,    1828. 

V.  Hayward,    912,    913,    1107,    1110, 
1270,   1820. 

V.  Hodges,    310. 

V.  Holmes,   2008,    2009. 

v.  Houston   Cornice  Works,    1528, 
1851. 

v.  Howard,   1998,   2039. 

V.  Jones,    1331,   1435. 

V.  Jordan,   384. 

v.  Kent,   366,   858,    1061. 

V.  Ladew,    151,    221,   1477,   1482, 

V.  Lane,    1586,    1593. 

V.  Leper,    1S98. 

V.  Lilley,  1687. 

V.  McAliley,    491. 

V.  McAnany,    1452. 

V.  McMichael,   506. 

V.  Mathewson,  1290. 

V.  Mershon,    236,    253,      285,      287, 
1418,   1517. 

V.  Michigan    Central    R.    Co.,    99, 
1408. 

V.  Nolen,  1664. 

V.  Oliphant,    548. 

V.   Rogers,  1649. 

V.  Salmond,    367. 

V.   Shaw,    508,    534. 

V.   Smith,    1662. 

V.  Stlven,   1994. 

V.  Summers,   1047. 

V.  Tapperell,  1509. 

V.  Terboss,    2026. 

V.  Towl,   463,  843. 

V.  Tyas,  618. 

V.  Vanderbilt.    18,   1310.   1343, 
1362,  1386,  1394,  1406. 

V.  Wait,  441,  464,  471,  472,  473, 
480,  481,  1779. 

V.  Yoe,    1268,    1292. 
Williams'   Appeal,    354. 
Williams'  Estate,  In  re,  1019. 
Williamson   v.    Crossett,   1335,    1338. 

v.  Jones,   709.    729.   731,   737. 

V.  Miller,    603.   1239. 

V.  New    Jersey    Southern    R,    Co., 
1562. 


2278 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Williamson  v.   Paxton,    307,   314,   1481. 

V.   Rus.sell,   463. 

V.  Stevens,  548. 

V.  Williamson,    807,    932. 
Williard    v.    Williard,    736. 
Willims   V.   Mangum,    2029. 
Willin&ham    v.    Joyce,    395. 
Willis  V.  Branch,  1844. 

V.  Eastern  Trust  &  Banking-  Co., 
320,  322,  329,  1718,  1729, 
1753. 

V.  Harrell,  151,  471,  1431,  1480, 
1489,   1725,   1733,   1777. 

V.  McKinnon,    426,  466. 

V.  Moore,   153,    1644,    164'6. 

V.  Weeks,   1522,    1750. 

V.  Wozencraft,    308. 
Willison  V.   Watkins,   10,    17,    516,    907, 

959,    1354. 
Willmott  V.   Barber,  934,   935,   959. 
Willoughby    v.    Atkinson    Furnishing 
Co.,    783,    1514,    1515,    1528. 

V.   Backhouse,    2081,    2082. 

V.  Lawrence,   1368. 

V.  Northeastern   R.   Co.,    1505. 
Wills  V.   Gibson,    1081,   1899. 

V.  Manufacturers'  Natural  Gas 
Co.,    1368,    1402. 

V.  STieerer,  59. 

V.   Stradling,   263,   388,   389. 

V.   Summers,    854,    880,    888. 

V.  Wills,   1886. 
vVillson   V.    Cleaveland,    445,    467. 

V.   Davenport,    2037. 

V.  Love,  1054. 
Wilmark    v.    New    York   El.      R.      Co., 

1324. 
Wilmarth  v.    Palmer,    1857,    1879. 

V.   Pratt,    1631,    1664,    1978. 
Wilson  V.  Alexander,  1489. 

V.   Bayley,  1794. 

V.   Cincinnati,    1468. 

V.   Curry,   1937. 

V.   Deen,    365. 

V.   Delaplaine,   1118. 

V.  Ducket,    2018. 

T.   Edmond,    745. 

V.  Feild,    4  28. 

V.  Fineh-Hatton,  570,  571,  573, 
1221. 

V.   Gerhardt,    1124. 

V.   Gibbs,  1166. 

V.  Griswold,    283,    1670. 

V.  Hart,    822. 

V.  Hooper,   320. 

V.  Isemingor,    1174, 


Wilson  v.  James,   490. 

v.  Jones,    1180,    1411. 

v.   Lester,    1328,    1330, 

V.   Lunt,   989,   1051. 

V.   Lyons,   439,   464. 

V.   Martin,   35,    232. 

V.   Merrill,   105,    155. 

V.   Nightingale,   2062. 

V.   Owens,    1364. 

V.  Pennsylvania  Trust  Co.,  1189. 
1190,  1248,  1249. 

v.  People's  Gas  Co.,  1057. 

V.  Prescott,  1448,  1464,  1474. 

V.  Reppa.ss,  1951. 

V.   Rodeman,    140,    1445. 

V.  St.  Paul  M.  &  M.  R.  Co.,  122. 

v.   Sm;th,    501,    714,    1263. 

V.   State,    19D3. 

V.   Stevs-art,    188,    1929. 

v.  Tavener,    28,    1418. 

V.   Taylor,    134,    138. 

V.   Townsend,   2116. 

V.   Treadwell,    578,   650, 

V.   Tumman,    2052. 

V.   Twamley,    807,    810. 

V.  Waddell,   647. 

V.  Wigg,   352. 

V.   Wilson,   852. 

V.  Wood,  1428,  1793. 

V.   Youst,    217. 
Wnton  V.   Dunn,   320,   415. 

V.  Wiffen,    2036. 
Wiltshtar  v.    Gottrell,    1563. 
Wiltshire  v.   Cosslett,    802. 
Wimp  v.  Early,  1945,  1947,  1964, 
Win-Chester  v.  Knight,  734. 
Windham's   Case,    55. 
Windom  v.  Stewart,  217,  745,  748,   784, 

1093. 
Windsor  v.  Burry,  923,   924. 

V.   Gover,   1166. 
Windsor  Hotel  Co.  v.  Hawk,  289. 
Wineman    v.    HougTison,      1107,      1110, 
183D,    1850. 

V.   Phillips,  962,   965,  1124,  1125. 
WinestiTie    v.    Zigliatzki-Marks      Co., 

181,   183,   865,    1101. 
Winfleld    Mfg.    Co.,    In    re,    1190,    1249. 
Wing    v.    Gray,    786,    1567,    1570,    1580, 

1614,   1616. 
Wings  V.   Hardy,   1814. 
Winings  v.   Wood,  1857. 
Winkelmeier  v.  Katzelburger,   874. 
Winkfield,   The,    2105. 
Winkler   v.    Massengill,    1739. 
Winn  v.  Bull,  379. 


TABLE  OE:  cases. 


22^79 


[eeferences 

Winn  V.   State,    1364,    1365,    1375,  1403, 
1509. 
V.   Strickland,    494.  , 

Winne  v.    Kelley,   589. 
Winner  v.  Williams,   1571,   1573. 
Winship  v.   Hudspeth,   2112. 

V.  Pitts,    719,    731. 
Winslow  V.    Baltimore   &  O.      R.     Co., 
212,    1524. 
V.  Henry,    2025. 
V.  Merchants'  Ins.  Co.,  1563. 
Winstell  v.  Hehl,   191,   966. 
Winston    v.    Franklin   Academy     1370 

2118. 
Winter  v.   Baker,  628. 

V.  Dumerque,    930,    959. 
V.  Stevens,   13,   1512. 
Winter's  Case,   1384. 
Winterbottom  v.   Ing"ham,    1865. 
Winterbourne  v.    Morgan,   2084. 
Winterfield     v.      Stauss,     1508       1512 

1783. 
Winterink  v.  Maynard,   1087. 
Wlntermute  v.   Light,  1574,   1621. 
Winters  v.   Cherry,   262,    1522. 
Winthrop  v.    Manhattan   R.   Co.,    2123. 
Winton   v.  Cornish,    97,   222. 
Winton's   Appeal,    1549. 
Wisdom  V.   Newberry,   596. 
Wise  V.    Old,   1943,    1948. 

V.   Perpetual    Trustee   Co.,    213. 
V.   Pfaff,    1103. 
Wisehart   v.    Grose,    1706. 
Wisner  v.   Ocumpaugh,   1977. 
Wistow's    Case,    2017,    2018. 
Witherbee  v.   Stower,   56. 
Withers    v.    Larrabee,    128,    242,    1172, 

1321,    1335,    1336,    1420. 
Withington    v.    Nichols,    1078. 
Withnell   v.   Petzold,    136. 
Witman  v.    Reading,    263,    275,    280. 

V.  Watry,    1169,    1338,    1349. 
Witmann    v.    Milwaukee,    L.    S.    &    W. 

R.    Co.,    907,    951,    970,    1873,    1887. 
Witmark  v.   New   York  EI.      R.     Co., 

2128. 
WItte  V.  Quinn,   1266,  1270,  1753,  1767. 
W^ttenmeyer  v.    Board   of   Education, 

1596. 
Witthaus   V.    Starin,    352. 

V.   Zimmerman,  94. 
Wittrock   V.    Hallinan,    1103. 
Witty  V.  Acton,   1771. 

V.  Mattliews,  574,  581,  584,  1207. 
V.  Williams,    2046. 
Wlxon  V.  Bruce,   704,  705,  794. 


ARE    TO    PAGES.] 

Wodock  V.   Robinson,   365. 
Woelpper  v.   Philadelphia,   126. 
Woglam      V.      Covvperthwaite,       1987 

2022,    2057,    2059,    2073. 
Wolcott   V.    Ashenfelter,      1905,      1947 
1949. 
V.  Hamilton,    156,    3191,    1640. 

V.   Schenk,   1759,    1790.   1793. 
Wolf  V.  Dozer,  230. 

V.   Gluck,  971. 

V.   Holton,    452,   470,    1357. 

V.  Johnson,   495. 

V.  Kilkpatrick,  575,   679,  688. 

V.   Morritt,    1039. 

V.   Studebaker,    550,    551. 
Wolfe    V.    Angevine,    1722. 

V.  Arrott.   299,  561. 

V.  McGuire,   742. 
Wolfer  V.   Hurst,  1419,  1746,   1764. 
Wolff   V.    Hyass,    608. 

V.   Sampson,    1570. 

V.   Shinkle,    1768. 
Wolffe  V.  Wolf,  1170.  1471,   1472,   1477, 

1478,    1487. 
Wolgamot  V.  Bruner,  2037. 
Wollaston   v.   Hakewill,    352,   909,   917, 

978,    11.^2. 
Wolveridge   v.   Steward,    990,   994,   995 

996. 

Womach   v.    Jenkins,   333. 
Womack   v.   McQuarry,    1191,    1196. 
Womersley  v.  Dally,  78B,    1832. 
Wood  V.  As'h,    1669.    1671. 

V.  Bogle,    855. 

V.  Chivers,    1377. 

V.   Clarke,   2010. 

V.  Cooper,    750,    806. 

V.   Davis,    44. 

V.  Drouthett,    455. 

V.   Duval,   944. 

V.  Edison  Electric  Illuminating 
Co.,  289,  1515,  1529,  1541, 
1543. 

V.   Foster,   1669. 

V.   Garri.'jon,   189,    1727. 

V.  Gordon,  301,  1478. 

V.   Griffin,    738,   2103,    2104,   2105. 

V.   Holly   Mfg.    Co.,    15GS. 

V.   Hubbell.    577,    1198,    1202,    1206. 

V.  Hj'att,    1504 

V.  Lake.    265. 

V.  Leadbetter,    21. 

V.  Londonderry,    1349. 

V.  Manley,   22. 

V.  Midgley,   378. 

V.  Noack,  1656. 


2280 


TABLE  OF  CASES. 


[REFERENCES    ARE    TO    PAGES.] 


Wood  V.   Nunn,   2056. 

V.  Pag-e,    151. 

V.  Partridge,   870,   1011. 

V.  Patterson,   206,   210. 

V.   Sharpless,    766. 

V.   State,    2129. 

V.  Turner,    329,   436,  437,   464,   497. 

V.  Wilcox,   1871,   1882,   1883. 
Woodall  V.  Clifton,     888.     892,     167C, 

1690. 
Woodbridg-e  v.  Richardson,  1142. 
Woodbridge  Co.  v.  Hires  Co.,   86. 
Woodbum  v.  Renshaw,  967,   999. 
Woodburn's  Estate,  1119. 
Woodbury  v.  Butler,  1435. 

V.  Sparrell  Print,  1176,  1177,  1179. 

V.  Willis,    2109. 

V.  Woodbury,   306,    1866,   1867. 
Woodcock   V.    Carlson,   1641,   1642. 

V.  Roberts,    1527. 

V.  Tltterton,   2002. 
Woodhouse   v.   Jenkins,    525. 
Woodhull   V.   Rosenthal,    908,    909. 
Woodland  Cemetery  Co.  v.  Carvill,  71. 
Woodland  Oil  Co.  v.  Crawford,   972. 
Woodman   v.    Francis,    2116. 

V.  Ranger,    1786. 
Woodruff  V.  Adams,  13,  38,  185,  187. 

V.  Baldwin,    1129. 

V.  Butler,    1841. 

V.  Brie  R.   Co.,  204,   984. 

V.  Oswego    Starch   Factory,    851. 
Woods  V.  Broder,  1140. 

V.  Charlton,    1671. 

V.  Doherty,    1139. 

V.   Durrant,    2059. 

V.  Hyde,    1439. 

V.  Kernan,   1817. 

V.  Naumkeag    Steam    Cotton   Co., 
634,   636. 

V.  Pope,  769. 

V.   Rankin,    2066. 

V.   Rock,   1016,  1090. 

V.  Soticy,    13S2,    1758,    1775. 
Wood's  Appeal,  1899. 
Woodside  v.  Adams,   2014. 
Woodsley   Brewery  Co.     v.     Halford, 

1437. 
Woodville,  375. 
Woodward  v.  Brown,  1353,  1354. 

V.  Conder,    39,   1652,   1657. 

V.  Cone,    1764. 

V.  Gates,  725. 

V.  Gyles,  1054. 

V.  Jones,   587. 

V.  Lindley,    1321,  1334 


Woodward   v.    Marshall,   962. 

V.  Mitchell,  1375. 

V.  Payne,  1697. 

V.  Winehill,    1740. 
Woodworth    v.      Harding,      94,      1172, 
1190. 

V.  Thompson,   370,  584. 
Wooler  V.   Knott,   807. 
Wooley   V.    Osborne,    1693. 
Woolsey  v.  Abbett,  1104. 

V.   Henke,   275,   359. 

V.  Lasher,    1066. 
Wootley  V.  Gregory,  2053. 
Woran  v.  Noble,   698. 
Wordsley   Brewery  Co.     v.     Halford, 

872. 
Work  V.  Brayton,  151. 
Work's  Appeal,   1253. 
Worrill  v.  Barnes,   1960,  1961,  1963. 
Worsham  v.  McLeod,   1942. 
Woj-tliing    Corporation     v.     Heather, 

1676. 
Worthington    v.      Cooke,      195,      1064, 
1.065,   1069,   1101,  1124. 

V.  Covington      Roller        Skating 
Rink  Co.,  1956. 

V.  Hewes,    1050,    1051,    1124. 

V.  Lee,  958,   1353,  1534,  1553,  1554. 

V.   Parker,   625,   643,   644. 

V.  Warrington,    390,    392. 

V.   Young,  193. 
Wotton   V.   Hele,    191. 

V.  Wise,    718. 
Wray  v.  Lemon,  967. 

V.  Rhinelander,    1698. 
Wray-Austin       Machinery       Co.       v. 

Flower,  1364,  1762. 
Wreford  v.   Kenrick,   1158,   1174,   1180. 
Wren  v.  Stokes,  1256. 
Wrenford  v.    Gyles,   69. 
Wright  V.    Bircher's   Ex'r,    1965,    1971, 
1973,  1976. 

V.  Burroughes,   872,   1383,  1384. 

V.   Cartwright,   45. 

V.  Craig,   2063. 

V.  Davis,    1964. 

V.  Dev/es,   2019,    2021. 

V.  Dickey  Co.,  1945. 

V.  DuBignon,  1567,  1575,   1579. 

V.   Everett,    1289,   1403. 

V.   Graves,  152,   444,  488. 

V.  Hardy,    108,    1055,    1110, 

V.  Hawkins,    2047. 

v.  Henderson,   949, 

V.  Jessup    463. 


TABLE  OF  CASES. 


2281 


[ebfeuences 

WTig-ht    V.    Kaynor,    1526,    1531,    1535, 
1676,    1688. 
V.  Lattin,    587,   1157,      1160,     1238, 

1272,  1274. 
V,  Lawson,  756. 
V.  Link,   1993. 

V.  MacDonnell,     423,    1581,,    1586, 
1588,    1596,    1597,    1600,    1605. 
V.  Mosher,    1724. 
V.  Perry,    667. 
V.  Roberts,    316,   715,   1868. 
V.  Rothschild's   Sons  &  Co.,   1926, 

1934. 
V.  Stavert,   35,    232. 
V.  Tileston,    779,   781. 
V.  Tracy,    122. 
V.  Williams,    2042. 
Wrotesley  v.  Adams,   268. 
Wulff  V.   Cilento,   1767. 
Wunder  v.  Mcuean,  676,  C80,  696,  794. 
"Wunderlich  v.  Reis,  1558. 
Wurster  v.  Armfield,   1540. 
WusthofE  V.    Schwartz,    615,    1287. 
"Wyatt  V.  Cole,  401. 
"Wyke   V.   Wilson,   2085. 
Wykham   v.   Wykham,   1076. 
Wyman  v.   Farrar,   815,    828. 
V,  Hook,    328,    1870. 
V.  Sperbeck,  301. 
Wyndham  v.  Way,  1579,  1629. 
Wynne,  In  re,   1900,   1901. 
Wynne  v.  Haights,   609. 

V.   Newboroug-h,    219. 
Wyse  V.  Russell,  1285. 


Y. 

Yarborough  v.   Ward,    213,  1132. 
Yarnall   v.   Haddaway,   2093. 
Yater  v.   Mullen,    310. 
Yates  V.   Bachley,   392,   1693. 

V.  Cole,    92. 

V.  Eastwood,  2067. 

V.  Kinney,    1629,    1976. 

V.  Ratledge,   1247,  1254. 

V.  Tearle,    2076. 
Yeager  v.   Weaver,   549. 
Yeatman   v.   Clemens,   1707. 
Yeaton,  In  re.   982. 
Yeazel  v.  White,  1646. 
Yellow  Jacket  Silver  Min.  Co.  v.  Stev- 
enson,   284,    287. 
Yellowly  V.  Glover,   728,  744. 
Yeoman  v.   Ellison,   313,  1868. 
Yeoler  Estate  v.  Orth,   1430.  , 


ARE    TO    PAGES.] 

Yocum  v.  Zahner,   725, 

Yonkers  &  N.  Y.   Fire  Insurance  Co. 

V.  Bishop,    1811. 
York  v.    Carlisle,    1917,    1921,  1930. 

V.  Steward.  300,  365,  528,  530,  558, 
S60,  561,  583,  628,  649. 
Yosemite   Valley   Com'rs   v.   Barnard, 

1736. 
Young  V.  Burhans,  586,  588,  603,  1237, 
1239,    1843. 
V.  Chandler,  1570,   1647. 
V.   CoUett,    558. 
V.  Consolidated    Implement      Ca, 

1592,  1596,  1605. 
V.  Dake,  45,  48,  231,  235. 
V.  Ellis,    1410. 
V.  Hargrave's   Adm'r,   519. 
V.  Heffernan,    480. 
V.  Severy,   458. 
V.  Spencer,    798,    717. 
v.   Smith,   1043,   1418,   1746. 
V.  Watters,   1631. 
V.  Wrightson.  1051. 
V.   Young,   724,   1423. 
Youngblood  V.  Eubank,  1586,  1587. 

V.  Lrowry,   2009. 
Younggreen  v.   Shelton,   2123. 
Youngs   V.    Freeman,    733. 
Yuelin  v.  Meade.   1794. 
Yule  V.  Fell,  865. 


z. 

Zachry  v.  Nolan.   1893. 
Zapp  V.  Davidson,  1973. 

v.  Johnson,   19€1,   1962,   1964. 
Zerega  v.  Will,   557,  1222. 
Zeysing  v.  Welbourn.   1167. 
Ziegler   v.    Brennan,   635. 
Zigler    v.    McClellan,    12,      720,      1332, 

1335. 
Zilch  V.  Young,  109,  113. 
Zillig,   In   re,    1530. 
Zimbler  v.  Abrahams,  103. 
Zimmer  v.  Black,  1218. 
Zimmerman  v.  Marchland,  445,  5*2. 

v.   Shreve,   2124. 
Zink  \.  Grant,   302.   303. 
Zinnell   v.    Bergdoll,    335. 
Zinsser   v.    ITerrmaji,    1759. 
Zippar  v.   Reppy,    1483,    1487. 
ZorkowBkJ   v.   Astor,    1528,    1695,   1797. 
Zouch  v.   Parsons,   195,    196,    1309. 

v.  Willingaie,    1462,   1463. 
Zouche's  Case,   152. 
Zule  v.  Zule,  10?4,  1891, 


INDEX. 


[be:fbbskcbs  abb  to  pages.] 


A. 

ABANDONMENT  OF  PREMISES, 
re-entry  by  landlord,  11,  1338. 
reletting  by  landlord,  1338. 
effect  on  rent.  1170,  1219,  1240. 
when  untenantable,  1219,  1240. 
as  constituting  eviction,  1264. 
as  ground  of  forfeiture,  1361,  1376. 

ACCEPTANCE  OF  LEASE,  280. 

ACCEPTANCE  OF  RENT. 

from  overholding  tenant,  1479. 

under  general  letting,  125,  134. 

under  void  lease,  241. 

by  remainderman.  400. 

as  waiver  of  forfeiture,  1386. 

as  waiver  of  notice.  1462. 

ACCIDENT, 

as  ground  for  relief  from  forfeiture,  1410. 

ACCIDENTAL  INJURIES, 

liability  of  tenant,  743,  761. 

as  excusing  payment  of  rent,  1190. 


'2284  INDEX. 

[RBFBBBNCES    ARB    TO    PAGES.] 

ACCOUNT,  ACTION  OF, 
for  rent,  1824. 

ACKNOWLEDGMENT, 

of  lease,  278. 

of  assignment,  957. 

ACQUIESCENCE, 
see  Waiver. 

ACT  OF  GOD, 

injuries  by,  tenant's  liability,  743,  761. 

ACTION, 

for  rent,  i)rocednre,  181S. 

as  waiver  of  forfeiture,  139L 
for  eviction,  1291. 
for  wrongful  distress.  2076. 
against  third  persons,  2097. 

see,  also,  Ejectment;  Personal  Injuries;  Replevin;  Summary  Pro- 
ceedings; Waste. 

ADJOINING  OW^NERS, 
injuries  to,  674. 

ADJOINING  PREMISES, 

erection  of  buildings  on,  826. 

competing  business  on,  829. 

user  by  landlord,  631,  641. 

user  as  eviction,  1279. 

restrictions  on  user,  823. 

duty  to  repair,  622,  641,  664,  691,  704. 

ADMINISTRATORS, 

see  Executors  and  AdmmistrattM^. 


INDEX.  2286 

[BSPBEBNCBS    AJiB    TO   PAGES.] 

ADVANCES, 

liens  for,  1896. 
distress  for,  2004. 

ADVERSE  POSSESSION, 
by  tenant,  15. 

AFFIDAVIT, 

In  summary  proceedings,  1784. 
for  distress,  2006. 
for  attachment,  2(^3. 

AFTER- ACQUIRED  TITLE,  422. 

AGENT, 

lease  by,  283,  470. 

covenant  by,  358. 

covenant  with,  357. 

action  for  rent  by,  1829. 

liability  for  rent,  1135. 

distress  by,  2044. 

tenant  not  landlord's  agent,  18. 

AGREEMENT  FOR  LEASE, 
see  Contract  for  Lease. 

AGRICULTURAL  FIXTURES,  1580. 

AGRICULTURAL  LEASES, 
see  Crops. 

ALIENATION, 

see  Assignment  of  Leasehold;  Sublease;  Trai^fer  of  Reversion. 


2286  INDEX. 

[EEFBEENCES    AEB    TO    PAGES.] 

ALTERATIONS, 

by  tenant, 

contract  allowiBg,  7^. 
contract  prohibiting,  749. 
in  absence  of  contract,  716,  722, 
contract  by  tenant  for,  772. 

ANNEXATION, 

of  article  to  land,  1562. 

ANSWER, 

in  summary  proceedings,  1794. 

APARTMENTS, 

leases  of,  222,  570. 

tenant's  rights  as  to  adjoining  premises,  831. 

destruction,  effect  on  rent,  1196. 

APPEAL, 

in  summary  proceedings,  1805. 

APPLICATION  OF  PAYMENTS, 
on  rent,  1092. 

APPORTIONMENT  OF  RENT, 
as  to  time,  1071. 
as  to  amount,  1063. 
on  eviction,   1160. 
distress  for  part,  2001. 
in  action  for  use  and  occui»aticm,  1891. 

APPRAISEMENT, 

to  fix  rent,  1(J50,  1544. 

of  tenant's  improvements,  1706. 

of  goods  distrained,  2063. 


INDEX.  2287 


Ihefbrbnces  are  to  fagbs.] 

[APPROACHES, 

landlord's  obligalions,  628,  $32,  C64. 
rights  of  tenant,  824. 

APPURTENANCES,  816. 

ARBITRATION, 

to  fix  rent,  1050. 

ASSIGNEE  OF  LEASEHOLD, 

liability  on  covenants,  881,  968. 
for  rent,  1126. 
for  taxes,   853. 
on  covenant  to  insure,  862. 
on  covenant  as  to  use  of  premises,  809. 
on  covenant  to  repair,  771,  783. 
on  covenant  to  improve,  775. 
in  use  and  occupation,  1873. 
to  assignor,  994. 
rights  against  landlord,  998. 
effect  of  reassignment,  989. 

see,  also.  Assignment  of  Leasehold. 

ASSIGNMENT  OF  LEASEHOLD, 
right  to  make,  918,  921. 
distinguished  from  sublease,  907. 
forfeiture  for,  1374. 
for  benefit  of  creditors,  97,  982. 
by  tenant  at  will,  117. 
by  periodic  tenant,  139. 
to  infant,  199. 
contract  for,  959. 
effect  on  option  to  end  tenancy,  77,  85. 

option  of  purchase,  1689. 

covenant  to  pay  for  improvements,  1701. 

right  to  remove  fixtures,  1622. 

covenant  for  renewal,  1548. 

lessee's  liabilities,  968,  1123,  1328. 

see,  also,  Assignee  of  Leasehold ;  Sublease. 


22SS  INDEX. 

[eweeencbs  abb  to  pages.] 
ASSIGNMENT  OP  RENT,  1100,  1107,  1112. 

ASSIGNMENT  OF  REVERSION, 
see  Transfer  of  Reversion. 

ASSIGNOR, 

rights  against  landlord,  978. 
rights  against  assignee,  994. 

ASSUMPSIT, 

for  rent,  1824,  1853. 

for  use  and  occupation,  1491,  1853. 

ASSUMPTION, 
of  rent,  1124. 
of  covenants,  989. 

ATTACHMENT  FOR  RENT, 
general  considerations,  2090. 
affidavit,  2093. 
bond,  2094. 
writ,  2095. 
wrongful,   2096. 

ATTESTATION, 
of  lease,  278^ 

ATTCSINEY'S  FEES, 

stipulations  for,  1852. 

ATTORNMENT, 

nature  of,  179. 
double  meaning  of  term,  172. 
by  tenant  to  stranger,  173,  180. 
statutory  provisions,  173,  175, 
under  compulsion,  177. 


INDEX.  2289 

[keferbnces  aeb  to  pages.] 


ATTORNMENT— Cont'd. 

validity  as  against  tenant,  178. 

acts  showing,  182. 

to  mortgagee,  176,  180,  411,  415. 

to  paramount  title,  411,  504,  554. 

on  transfer  of  reversion,  8-73. 

procurement  by  fraud,  480. 

under  mistake,  483. 

as  precluding  denial  of  title,  471. 

by  mortgagor  to  mortgagee,  326. 

AVOWRY, 

in  replevin,  2074. 

AWAY-GOING  CROPS,  1637. 


B. 


BAILMENT, 

of  chattels,  920,  1020,  1668. 

BANKRUPTCY, 

of  tenant,  effect,  94,  924. 

of  tenant  at  will,  116. 

forfeiture  on,  1375. 

liability  of  bankrupt's  trustee,  980. 

discharge  in,  effect  on  rent,  1189. 

BEQUEST, 

of  leasehold,  right  to  make,  923. 

BOARD, 

as  rent,  1018. 

L.  and  Ten.  144. 


2290 


INDEX. 


[HEFEEHNCES    ARE    TO    PAQBa.] 


BONA  FIDE  PURCHASERS, 
rights  as  to  fixtures,  1614. 
rights  as  to  rent,  1111. 
rights  as  against  lien,  1931. 

BOND, 

preliminary  to, 
distress,  2049. 
attachment,  2094. 
for  payment  of  rent,  1135. 

BONUS, 

for  lease,  1024. 

BUILDING, 

lease  of  part,  222. 
passes  on  lease  of  land,  268. 
lease  of,  includes  land,  269, 
tenant's  right, 

to  erect  719,  749. 

to  alter,  716,  749. 

to  remove,  716,  749. 
injuries  from  fall  of,  691. 
destruction,  effect  on  rent,  1190,  1202,  1211. 

BUSHES, 

planted  by  tenant,  1629. 

BUSINESS, 

covenant  not  to  conduct,  801. 
covenant  to  conduct,  804. 

c. 

CANCELLATION  OF  LEASE, 

for  fraud,  293. 

for  mistake,  300. 

does  not  effect  surrender,  1308,  1315. 


INDEX.  2291 

[kbfbrbnces  are  to  pages.] 


CASUALTY, 

injuring  premises,  effect  on  rent,  1190,  1204. 

CAVEAT   EMPTOR, 

lessee  subject  to  doctrine,  556. 

CEILING, 

repair  of,  623. 

CERTIORARI, 

to  review  summary  proceeding,  1805. 

CESTUI  QUE  TRUST, 

as  tenant  of  trustee,  305. 

not  liable  under  lease  to  trustee,  339. 

CHATTEL  MORTGAGE, 

to  secure  rent  or  advances,  1964. 

CHATTELS, 

bailment  of,  920,  1020.  1668. 

lease  of,  221. 

lease  with  land,  920,  1021,  1102,  1668,  1997. 

removal  at  end  of  tenancy,  118,  1671. 

becoming  fixtures,  1560. 

subject  to  distress,  2004. 

covenants  as  to,  do  not  run,  894. 

CLERGYMAN, 

as  tenant  of  parsonage,  335. 

COLLATERAL  AGREEMENT, 
enforcible  though  oral,  367. 

COMMENCEMENT, 

of  tenancy  for  years,  48. 


2292  INDEX. 

[kefeeences  are  to  pages.] 
COMMON,  TENANT  IN, 
lease  by,  405. 

COMPENSATION, 

for  improvements,  83,  1692. 
for  use  and  occupation,  1853. 

COMPLAINT, 

in  action  for  rent,  1838. 

in  summary  proceeding,  1784. 

COMPLETION, 

of  building  leased,  599,  601. 

CONCEIALMENT, 

of  defects  in  premises,  562,  651. 

CONCURRENT  LEASE,  870,  875. 

CONDEMNATION, 

of  premises,  effect  on  rent,  1180. 

CONDITION  OF  PREMISES,  553. 
see,  also.  Personal  Injuries. 

CONDITIONS, 

against  assignment,  938. 

not  apportionable,  1384. 

summary  proceeding  on  breach,  1751. 

continuing  and  recurring  breaches,  942,  1398. 

see,  also,  Forfeiture. 

CONSENT, 

to  assignment  or  sublease,  932. 


INDEX.  2293 

[eefbrences  aeb  to  pages.] 

CONSIDERATION, 

unnecessary  to  validity  of  lease,  164. 
for  contract  to  repair,  584. 
for  reduction  of  rent,  1056. 

CONSTRUCTION, 
of  covenants,  360. 
of  lease,  289. 

CONSTRUCTIVE  EVICTION,  1259. 

CONTINGENT  EXPIRATION, 
Of  tenancy,  58,  68. 

CONTINUING  BREACH,  942,  1398. 

CONTINUING  CONTRACT,  584,  600. 

CONTINUING  COVENANT,  584,  600. 

CONTRACT, 

lease  is  not,  160. 

accompanying  demise,  338. 

to  make  improvements,  598,  772. 

to  assign,  959. 

not  to  assign,  918. 

to  insure,  861. 

to  make  or  pay  for  repairs,  581,  592,  661,  700,  751,  753. 

to  furnish  heat,  834,  1241. 

to  furnish  power,  832,  1241. 

to  return  in  good  repair,  776. 

to  pay  taxes,  843. 

to  pay  for  tenant's  improvements,  1692. 

to  sell  to  lessee,  1674. 

to  renew  or  extend,  1514. 

as  to  cultivation,  785. 

as  to  condition  of  premises,  559. 


2294  INDEX. 

[bbfbbbnces  arb  to  faghs.] 
CONTRACT— Cont'd. 

as  to  use  of  premises,  800. 

as  to  removal  of  fixtures,  1597,  1606. 

restricting  use  of  land,  822. 

for  division  of  crops,  1648. 

breacti  as  defense  to  rent,  1236. 

see,  also,  Contract  For  Lease;  Covenants. 

CONTRACT  FOR  LEASE, 

distinguished  from  lease,  371,  374. 
entry  by  proposed  lessee,  383. 
statute  of  frauds  applicable,  383. 
transfer  of  possession,  923. 
execution,  386. 

repairs  and  improvements,  390. 
remedies  for  breach,  391. 
specific  performance,  393. 
usual  covenants,  395. 
distress  for  rent,  1990. 
use  and  occupation,  1865. 

CONTRACT  OF  LEASE, 

undesirable  expression,  160. 

CONTRACT  OF  SALE, 

resulting  relation  of  tenancy,  306. 

use  and  occupation  against  purchaser,  1865. 

CONTRIBUTION, 

as  between  subtenants,  1134. 

CONVERSION, 

of  fixtures,  1624. 


INDEX.  2295 

[bbfebences  abb  to  fagbs.] 


CONVEYANCE, 

lease  is  conveyance,  159. 
by  way  of  surrender,  1313. 
by  landlord  as  eviction,  1274. 
terminating  tenancy  at  will,  115,  117. 

CORPORATION, 

lease  by  or  to,  201. 

dissolution  of  corporate  tenant,  101. 

COTENANTS, 

lease  by,  405. 
lease  to,  220. 
use  and  occupation  between,  1879. 

COUNTER  AFFIDAVIT, 

in  distress  proceeding,  2069. 

COUNTERCLAIM, 

in  action  for  rent,  1842. 

in  summary  proceeding,  1766. 

against  distress,  2037. 

COVENANT, 

action  of,  1822. 

COVENANTS, 
of  lease,  338. 

express  and  implied,  340,  517,  540,  1030. 
In  law,  340. 
usual,  395. 

joint  and  several,  344,  355,  356,  1834. 
dependent  and  independent,  342. 
effect  of  nonexecution  of  lease,  346. 
effect  of  transfer  of  reversion,  879. 
effect  of  transfer  of  leasehold,  968. 
running  with  the  land,  881,  886,  969. 


2296  INDEX. 

[eefebences  aeb  to  pages.] 
COVENANTS— Cont'd. 

for  quiet  enjoyment,  517. 

of  title,  965. 

in  ultra  vires  lease,  204. 

repair,  581,  598,  751,  753,  795. 

improve,  598. 

pay  for  improvements,  1692. 

pay  rent,  1029. 

pay  taxes,  843. 

yield  up  in  repair,  776. 

return  in  good  condition,  776. 

furnish  heat,  834,  1241. 

furnish  power,  832,  1241. 

insure,  861. 

renew  or  extend,  1514. 

sell  to  lessee,  1674. 

make  improvements,  772. 

as  to  use  of  premises,  800,  822,  1001. 

removal  of  fixtures,  1597,  1606. 

cultivation,  785. 
against  assignment  or  sublease,  921. 
of  indemnity  by  assignee,  996. 
assumption  by  assignee,  989. 
liability  of  sublessee,  1000. 
breach  as  defense  to  rent,  1236. 
re-entry  for  breach,  1358,  1366. 
release  of  covenant,  903. 

see,  also.  Contracts. 

CROP  RENT, 

nature,  1017. 
distress  for,  2002. 

CROPPER, 

distinguished  from  tenant,  38. 

CROPPING  CONTRACT,  183,  1648. 


INDEX.  2297 

[EEFEEENCES    AEH    to    PAGEa.] 


CROPS, 

tenant  usually  entitled,  1626. 

stipulations  against  removal,  1630. 

agreements  for  division,  13,  38,  183,  1017,  1648. 

rights  on  forfeiture  of  leasehold,  1407. 

rights  after  end  of  tenancy,  156. 

liens  on,  1896. 

lease  on  shares,  13,  38,  183,  919,  1017,  1648. 

CULTIVATION, 

tenant's  obligations,  784,  1684. 

CUSTOM, 

effect  on  duration  of  tenancy,  64. 


D. 


DAMAGES, 

for  breach  of  contract  for  lease,  391. 

warranty  of  condition,  560. 

covenant  against  assignment,  942. 

covenant  to  repair,  589,  603,  753,  768. 

covenant  to  pay  taxes,  856. 

covenant  to  insure,  863. 

covenant  to  leave  in  repair,  783. 

failure  to  furnish  heat,  835. 

lessee's  exclusion  from  possession,  547. 

eviction,  1291. 

waste,   723,  735. 

fraud,  299. 

injuries  to  premises,  2118. 

interference  with  enjoyment,  2119,  2128. 

wrongful  attachment,  2096. 

wrongful  distress,  2076,  2085. 
in  use  and  occupation,  1889. 
on  termination  of  tenancy  by  landlord,  82. 


2298  INDEX. 

[BEFEKENCES    ABB    TO    PAGES.] 

DANGEROUS  PREMISES, 

landlord's  liability  for  Injuries,  559,  649,  675. 
tenant's  liability  for  injuries,  789. 

DEATH, 

of  landlord,  effect,  100. 
of  tenant,  effect,  100,  189,  140. 
terminating  tenancy  at  will,  115. 
of  person  entitled  to  rent,  1119. 
effect  on  covenant,  352. 

DEBT,   ACTION  OF, 
for  rent,  961,  1818. 
for  use  and  occupation,  1894. 

DECLARATION, 

in  action  for  rent,  1838. 

DEED, 

see  Sea,ling. 

DEFECTS, 

in  leased  premises,  553,  649. 
in  appliances,  641,  671. 
In  public  premises,  655. 

DEFENSES, 

to  claim  for  rent,  1147. 

DEMAND, 
for  rent, 

prior  to  action,  1849. 

prior  to  distress,  2045. 

prior  to  forfeiture,  1377. 
for  possession, 

as  eviction,  1277. 

terminating  tenancy  at  will,  112. 
notice  to  quit,  1419. 


INDEX.  2299 

[BEFEBBNCES    ABB    XO    FAQaS.] 


DEMISE, 


meaning  of  term,  165. 
see,  also.  Lease. 

DEPENDENT  COVENANTS,  342, 

DEPOSITS, 

to  secure  rent,  1978. 

DEROGATION  FROM  GRANT,  820. 

DESCRIPTION, 

of  premises  in  lease,   266. 

DESERTED  PREMISES, 

re-entry  by  landlord,  11,  1361. 

DESTRUCTION, 

of  tenancy,  87. 
of  building, 

elTect  on  rent,  222,  1190. 

duty  to  rebuild,  617,  761,  776. 
of  premises,  1190. 

DEVISE, 

of  reversion,  1119. 

DISCHARGE, 

In  bankruptcy,  1189. 

of  liability  under  covenant,  361. 

DISCLAIMER, 

of  tenancy,  effect,  1354. 


2300  INDEX. 

[REFERENCES    ABB    TO    PAGES.] 

DISTRESS, 

for  what  sums,  1996, 

for  services,  2003. 

things  subject,  2004. 

loss  of  right,  2029,  2032. 

successive  distresses,  2034. 

for  what  amount,  2036. 

Bet-off  and  counterclaim,  2037. 

time  for,  2038. 

by  whom,  2040. 

preliminaries  to,  2045. 

levy,  2052,  2054. 

impounding,  2058. 

abandonment,  2071. 

sale  of  goods  distrained,  2061. 

surplus  proceeds,   2067. 

as  commencement  of  action,  2067. 

remedies  for  wrongful,  2072. 

as  waiver  of  forfeiture,  1394. 

effect  of  defects  in  lessor's  title,  432,  446. 

DISTURBANCE, 

see  Eviction;  Quiet  Enjoyment. 

DIVISION, 

of  crops,  1648.     See  Crops, 
of  rent,  see  Apportionment. 

DIVORCE, 

tenancy  at  sufferance  not  created  by,  155. 

DOMESTIC  FIXTURES, 
right  to  remove,  1577. 

DOUBLE  RENT, 

liability  of  overholding  tenant,  1496. 


INDEX.  23U1 

(eeferences  are  to  pages.] 


DOUBLE  VALUE, 

liability  of  overholding  tenant,  1495. 

DUMPOR'S  CASE, 
rule  in,  944. 

DURATION, 

of  tenancy  for  years,  55. 
lease  not  naming,  107. 


E. 


EARTH, 

removal  as  waste,  709. 

EASEMENTS, 

existing  at  time  of  lease,  814. 
creation  by  lease,  815. 
implied  grant,  818. 
acquisition  or  grant  by  tenant,  822. 
reservation,  821. 

interference   with  as  eviction,  1270,  1279. 
by  third  person,  2106,  2124. 

EJECTMENT, 

by  lessee  before  entry,  293. 

by  tenant  against  landlord,  8. 

by  landlord  against  tenant,  113,  433,  436,  1503. 

by  landlord  against   stranger,   7. 

by  tenant  against  stranger,  47,  118,  2134. 

by  one  entitled  to  minerals,  32. 

ELECTION, 

by  lessor  to  renew,  1536,  1547. 

by  lessee  to  renew  or  extend,  1526,  1532. 

by  landlord  as  to  forfeiture,  1368. 

as  to  covenant  to  pay  for  improvements,  1699. 


2302  INDEX. 

[REFERENCES    ABE    TO    PAGES.] 

ELEVATED  RAILROAD, 
injuring  premises,   2123. 

ELEVATOR, 

defects  in,  642,  671. 

failure  to  furnish  service,  1242. 

EMBLEMENTS, 

tenant's  right  to,  1631. 
effect  of  forfeiture,  1406. 

EMINENT  DOMAIN, 

compensation  to  tenant,  2131. 
effect  of  taking  on  rent,  1180. 

EMPLOYEE, 

distinguished  from  tenant,  36. 
as  tenant  of  employee,  331. 

ENJOYMENT, 

interference  by  stranger,  2106,  2124,  2133. 

see,  also.  Quiet  Enjoyment;  Covenant  For. 

ENTRY, 

by  lessee,  290. 
by  landlord, 

ordinarily  wrongful,  7. 

when  permissible,  9. 

damages,  9. 

terminating  tenancy  at  will,  111. 
by  assignee,  974. 
to  distrain,  2054. 
to  enforce  forfeiture,  1400. 

EQUITABLE   WASTE,  721. 


INDEX.  2303 

[HEFERENCES    AIIE    TO    PAGES.] 


EQUITY, 

proceeding  to  collect  rent,  1825. 
interpleader  as  to  rent,  1828. 
relief  against  forfeiture,  1409. 

ESTATE, 

created  by  lease,  160. 

of  lessor,  398. 

of  decedent,  liability,  355. 

ESTOPPEL, 

lease  operating  by,  422. 
of  paramount  owner,  426. 
to  deny  landlord's  title,  426. 
to  enforce  condition,  1396. 

ESTOVERS, 

tenant's  right,  714. 

EVICTION, 

by  landlord,  1258. 

under  paramount  title,  503,  1296. 

constructive,  1259. 

as  defense  to  rent,  1157,  1163,  1221. 

by  wrongful  act  of  stranger,  1301. 

by  compelling  attornment,  178,  504,  554. 

effect  on  tenancy,  1290,  1299. 

EVIDENCE, 

of  tenancy,  167,  168. 
in  use  and  occupation,  1886. 
see  Parol  Evidence. 

EXCEPTIONS, 
in  leases,  272. 


2304  INDEX. 

[REFERENCES    ARE    TO    PAGES.] 

EXCESSIVE  DISTRESS, 

landlord's  liability  for,  2081. 

EXCLUSION, 

of  tenant  from  premises,  542,  1147. 

EXECUTION, 

of  instrument  of  lease,  275,  276,  345. 
of  contract  for  lease,  386. 

EXECUTION  LEVY, 

sale  under,  ,S28,  877,  878,  1117. 

resulting  tenancy,  328. 

effect  on  riglit  to  rent,  1117,  1245. 
effect  on  right  of  distress,  2020. 

EXECUTORS  AND  ADMINISTRATORS, 

lease  by,  213,  469. 

right  to  rent,  1119,  1832. 

assignment  of  leasehold  by,  931. 

action  for  rent  by,  1832. 

action  on  covenant  by,  356. 

distress  by,  2041. 

liability  on  covenant,  352,  978. 

liability  for  rent,  1131. 

liability  in  use  and  occupation,  1874. 

EXEMPTIONS, 

from  distress,  2004. 

EXPIRATION  OF  TENANCY, 

in  general,  57,  63. 

on  tenant's  bankruptcy,  94. 

on  destruction  of  premises,  97. 


INDEX. 

[references  are  to  pages.] 
EXPIRATION  OF  TENANCY— Cont'd. 

on  sale  of  reversion,  77. 

at  option  of  party,  70. 

by  expiration  of  lessor's  estate,  98. 

effect  on  right  of  distress,  1993. 

EXTENSION,  PROVISION  FOR,  1514. 


F. 


FAIJi, 

of  wall  or  building,  liability  for  injuries,  691. 

FEE  SIMPLE, 

tenancy  in,  42,  398. 

FENCES, 

duty  to  keep  in  repair,  748. 

FIRE, 

injuring  premises, 

tenant's  liability,  740,  741. 
obligation  to  repair,  761,  776. 
effect  on  rent,  1190. 

FIRE  ESCAPES, 

duty  to  maintain,  671. 

FIXTURES, 

rights  as  to,  1560. 

exemption  from  distress,  2017. 

FLATS, 

see  Apartments. 

L.  and  Ten.  145. 


2305 


2306  INDEX. 

[references    ABE    TO    PAGES.] 

FLOODING  OP  PREMISES, 
as  defense  to  rent,  1199. 

FLOW, 

right  to  flow  land,  30. 

FOLLOWING  DISTRESS,  2026. 

FORCIBLE  DETAINER,  1714. 
see  Summary  Proceedings. 

FORCIBLE  ENTRY, 

by  landlord  at  end  of  tenancy,  1505 

FORECLOSURE, 

of  landlord's  lien.  1953,  1977. 
of  mortgage  prior  to  lease,  417. 
tenancy  resulting  from  sale,  329. 

FOREHAND  RENT,  1040. 

FORFEITURE, 

of  leasehold,  1353. 

enforcement.  1401,  1406. 

waiver  of  right  of,  1386. 

relief  against,  1409. 

for  waste,  736. 

summary  proceeding  to  enforce,  1751. 

effect  on  rent,  1174. 

covenant  to  pay  for  improvements,  170L 

right  to  crops,  1640. 

right  to  fixtures,  1590. 

right  of  distress,  1995. 

Bee,  also,  Conditions. 

FORM, 

of  lease,  264. 


INDEX.  2307 

[BEFBBBNCBS    ARE    TO    PAGES.] 


FRAUD, 

in  making  of  lease,  293. 
as  to  condition  of  premises,  561,  565,  654. 
giving  riglit  to  deny  landlord's  title,  480. 
ground  for  relief  from  forfeiture,  1410. 

FRAUDS,  STATUTE  OF, 
see  Statute  of  Frauds. 

FRUCTUS  INDUSTRIALES,  1627. 

FRUCTUS  NATURALiES,  1627. 

FURNISHED  HOUSE, 
lease  of,  570,  1667. 


GAMBLING, 

lease  for  purpose  of,  301. 

GOODS, 

see  Chattels. 

GRANT,  DEROGATION  FROM,  820. 

GRANTOR, 

as  tenant  of  grantee,  318,  1873. 
liability  in  use  and  occupation,  1878. 

GRASS, 

tenant's  rights,  786,  1627,  1631. 

GROUND  RENT,  1014. 


2308  INDEX. 

[EEFERENCES    ABE    TO    PAGES.] 

GROWING  CROPS, 
see  Crops. 

GUARANTY  OF  RENT,  1135,  1837. 

GUARDIAN, 

lease  by,  210. 

GUESTS, 

injuries  to,  655,  667. 


H. 


HAY, 


tenant's  rights,  786,  1627. 
stipulation  against  removal,  1631. 
see  Crops. 

HEAT, 

contract  to  furnish,  834,  1241. 
failure  to  furnish,  835,  1241. 
defective  heating  apparatus,  642,  645. 

HEDGE, 

planted  by  tenant,  1629. 

HEIR, 

rights  and  liabilities  as  to  covenants,  901. 
right  to  rent,  1119. 

HIGHWAYS, 

liability  for  defects,  687. 


INDEX. 

[REFBKBNCES    ARE    10    PAGES.] 

HOLDING  OVER  BY  TENANT, 

effects  in  general,  1466. 
renewal  of  lease  by,  1470,  1480. 
summary  proceeding,  1742. 

see,  also.  Sufferance,  Tenancy  at. 

HOLIDAY, 

rent  due  on,  1045. 

HUSBAND, 

as  tenant  at  sufferance  of  wife's  land,  155. 


2309 


I. 


ICE, 


on  pavement,  liability  for  injuries,  690. 
on  approaches,  liability  for  injuries,  632. 
falling  on  pedestrian,  694. 
tenant's  right  to,  828. 

ILLEGALITY, 

in  purpose  of  lease,  301,  455. 
in  use  of  premises,  800,  1359. 

IMPLICATION,  TENANCY  BY,  165. 

IMPLIED  COVENANTS, 

general  nature,  341. 
for  rent,  1030. 
for  quiet  enjoyment,  517. 
of  power  to  demise,  540. 

IMPLIED  GRANT, 

of  easement,  818,  825. 


2310  INDEX. 

[BBFEEHNCES   ABB   TO   PAGES.] 

IMPOUNDING, 

of  goods  distrained,  2058. 

IMPROVEMENTS, 

compensation  for,  83,  1692. 
under  invalid  contract  for  lease,  390. 
contract  by  tenant  for,  772,  795. 
contract  by  landlord  for,  598,  1237. 
required  by  municipality,  619. 
payment  by  landlord  for,  1692. 

INCONSISTENT  LIMITATIONS,   65. 

INCORPOREAL  THINGS, 
leases  of,  221. 
rent  reserved  out  of,  1019. 

INCREASED  RENT,  1059. 

INCUMBRANCES, 

on  lessor's  title,  408. 

INDEBITATUS  ASSUMPSIT, 
see  Use  and  Occupation. 

INDEMNITY, 

to  assignor  from  assignee,  994. 
see,  also.  Guaranty  of  Rent. 

INDEPENDENT  CONTRACTOR, 
negligence  of,  610,  632,  643. 

INFANT, 

lease  by,  196. 
lease  to,  197. 
liability  for  rent,  197. 


INDEX.  2311 


[bbfbbencbs  arb  xo  faqes.] 

INFECTIOUS  DISEASE, 

lease  of  infected  premises,  562,  571, 

use  of  premises  for  hospital,  798. 

as  justification  for  abandonment,  1230. 

INGRESS, 

interference  with  by  landlord,  1269. 

INJUNCTION, 

against  forbidden  use  of  premises,  812,  822. 

against  removal  of  fixture,  1624. 

against  breach  of  covenant  against  assignment,  944. 

against  waste,  448,  718,  729,  751. 

against  permissive  waste,  749. 

against  waste  by  third  person,  2116. 

against  distress,  2075. 

against  summary  proceedings,  1814. 

to  enforce  landlord's  right  of  entry,  15. 

INJURIES  FROM  DEFECTS  IN  PREMISES, 

to  persons  on  premises,  559,  562,  592,  608,  649,  659. 

to  persons  not  on  premises,  674. 

to  chattels  on  premises,  596,  624. 

to  neighboring  property,  674. 

effect  of  contract  as  to  repairs,  592,  661. 

INJURIES  TO  PREMISES, 

accidental,  tenant's  liability,  743. 
by  stranger,  tenant's  liability,  738. 
action  for    against  stranger,  2097. 
see,  also.  Waste. 

INSANE  PERSON, 

lease  by,  200. 
lease  to,  201. 


2312  INDEX. 

[bepbebnces  abb  to  pages.] 

INSURANCE, 

obligation  to  insure,  860. 
contract  to  insure,  861. 

INTBRESSE  TERMINI,  48,  90,  290,  871. 

INTEREST, 

on  rent,  1061. 

INTERFERENCE, 

with  ingress,  1269. 

with  enjoyment,  2106,  2124. 

INTERPLEADER, 

as  between  claimants  of  rent,  1828. 

INTOXICATING  LIQUORS, 

covenant  as  to  sale  of,  805,  806,  808. 
use  of  premises  for  sale  of,  798. 
lease  for  sale  of,  301. 

INTOXICATION, 
of  lessor,  201. 

INUNDATION, 

of  premises  as  defense  to  rent,  1199. 

INVALIDITY  OF  LEASE, 
effect  on  covenant,  351. 
as  defense  to  rent,  1155. 


J- 


JOINDER  OF  PARTIES, 

of  plaintiffs,  in  action  on  covenant,  903,  1831. 
of  defendants,  1834. 


INDEX.  2313 


[REFERENCES    ARE    TO    PAGES.] 

JOINT  AND  SEVERAL  COVENANTS,  244,  355,  356. 
JOINT  LESSEES,  220. 

JOINT  TENANTS, 

lease  by,  405. 

action  for  rent  by,  1831. 

distress  by,  2043. 

JUDGMENT, 

in  summary  proceedings,  1809. 

JUDICIAL  SALE, 

of  reversion,  effect  on  rent,  1117. 

JUSTICE  OP  THE  PEACE, 

jurisdiction  in  summary  proceeding,  1782. 


L. 


LEASE, 

nature  of,  159. 

contract  for,  371. 

distinguished  from  license,  20,  23,  233. 

form,  264. 

construction,  289. 

by  parol,  223. 

acceptance,  280. 

signing,  274. 

sealing,  276. 

attestation,  278. 

acknowledgment,  278. 

record,  281. 

executed  on  Sunday,  288. 

executed  under  mistake,  300. 


2314  INDEX. 

[REFBRUNCQS    ABB    XO    FAQBS.] 

LEASE— Cont'd. 

procured  by  fraud,  293. 

for  illegal  purpose,  301,  456. 

concurrent  lease,  871. 

in  reversion,  871. 

of  incorporeal  things,  221. 

personal  chattels,  221. 

land  and  chattels,  1021,  1101,  1102. 

rooms,  35,  222,  232,  271. 

of  mortgaged  premises,  409. 

by  reversioner,  871,  1274. 

agent,  283,  470. 

executor,  213,  469. 

trustee,  205. 

cestui  que  trust,  212. 

Infant,  196. 

married  woman,  190. 

Insane  person,  200. 

corporation,  201. 

guardian,  216. 

receiver,  219. 

tenant  of  limited  estate,  398. 

periodic  tenant,  139. 

tenant  in  tail,  398. 

mortgagee,  420. 

joint  owners,  405. 

person  not  in  possession,  421. 

to  two  or  more  persons,  220. 

is  subject  to  existing  incumbrances,  408. 

LEVY, 

of  distress.  2052,  2054,  2057. 
see,  also.  Execution  Levy. 

LICENSE, 

distinguished  from  lease,  20,  23,  233. 
does  not  give  possession,  20. 


INDEX,  2315 

[EEFEEHNCES    ABE    TO    PAGES.] 


LICENSE— Cont'd. 

rent  not  payable  for,  1020. 

not  within  covenant  against  sublease,  928. 

to  assign,  934,  949. 

take  minerals,  30. 

carry  on  business,  1289. 

cut  timber,   714,   723. 

alter  premises,  722. 

violate  condition,  1397. 

not  ordinarily  transferable,  22. 

revocation,  21. 

transfer  of  benefit,  22. 

LICENSEE, 

Injury  to,  649,   664. 
see,  also.  License. 

LIENS, 

for  rent  and  advances,  1896. 

for  cost  of  improvements,  1711. 

sale  of  premises  under  lien,  417,  496,  876,  1118. 

LIFE  TENANCY, 
nature,  43. 

created  by  lease  at  lessee's  will,  103. 
lease  by  life  tenant,  399,  1072,  1122. 

LIGHT, 

easement  of,  826. 
obligation  to  furnish,  635. 

LIMITATION, 

distinguished  from  condition,  1368,  1386. 

LIMITATION,  STATUTES  OF, 
actions  for  rent,  184. 
summary  proceedings,  1775. 


2316  INDEX. 

[bbfbebnces  are  to  pages.] 

LIVE  STOCK, 

leased  with  land,  1669. 

LODGING   AGREEMENT, 

not  within  covenant  against  sublease,  928. 
lodger  distinguished  from  tenant,  34. 

LUNATIC, 

lease  by,  200. 
lease  to,  201. 


M. 


MANURE, 

removal  by  tenant,  786. 

MARRIED  WOMAN, 

lease  by,  190. 
lease  to,  194. 
as  tenant  at  sufferance  of  husband's  land,  155. 

MASTER  AND  SERVANT, 
see  Servant. 

MEMORANDUM, 

of  contract  for  lease,  386. 

MERE  LICENSEES, 
injuries  to,  655,  667. 

MERGED  OF  LEASEHOLD, 
effect  as  destroying  term,  88. 
effect  on  rent,  98,  1166. 


INDEX.  2317 


tEBFBRBNCES    ARE    TO    PAGES.] 

MILITARY  OCCUPATION, 
as  defense  to  rent,  1244. 

MINERALS, 

tenant's  right  to  extract,  709. 
license  to  take,  30. 
conveyance  In  place,  32. 

MINOR, 

see  Infant. 


MISREPRESENTATIONS, 

in  procuring  lease,  293. 

as  to  condition  of  premises,  561. 


MISTAKE, 

in  making  of  lease,  300. 

as  giving  right  to  deny  landlord's  title,  483. 

as  ground  for  relief  from  forfeiture,  1410. 


MONTH  TO  MONTH, 

tenancy  from.  119,  122,  133,  135,  248. 
see,  also,  Periodic  Tenancies. 


MORTGAGE, 

by  landlord,  872,  1616. 

prior  to  lease,  409,  1643. 

of  leasehold,  925,  930,  958,  976. 

to  secure  rent  or  advances,  1964. 

sale  under,  877. 

terminating  tenancy  at  will,  116. 

see,  also.  Mortgagor  and  Mortgagee^ 


2318  INDEX. 

[references  are  to  pages.] 

MORTGAGOR  AND  MORTGAGEE, 

mortgagor, 

as  mortgagee's  tenant,  319. 

as  tenant  under  foreclosure  purchaser,  329. 
lease  by  mortgagor  before  mortgage,  872. 
lease  by  mortgagor  after  mortgage,  409. 
mortgagor's  right  to  rent,  1115. 
mortgagee, 

as  tenant  of  mortgagor,  325. 

of  leasehold,  925,  930.  958,  976. 

rights  as  against  mortgagor's  lessee,  410. 
lease  by  mortgagee,  420. 
distress  by  mortgagor  or  mortgagee,  2043. 

MUNICIPAL.  REQUIREMENTS, 

as  to  improvements  and  repairs,  619,  755,  757,  773,  780. 


N. 


NEGLIGENCE, 

in  failing  to  repair,  586,  594. 

in  making  repairs,  595,  608. 

in  leasing  defective  premises,  563,  649. 

causing  injury  to  stranger,  683. 

as  to  condition  of, 

approaches,  628,  632. 

platforms,  631. 

appliances,  641. 
of  tenant  as  regards  third  persons,  789. 
of  independent  contractor,  610,  632,  643. 

NIL  HABUIT  IN  TENEMENTIS, 
see  Preclusion  to  Deny  Title. 


,        INDEX.  2319 

[EEFBHBNCES    are    to    PAGES.) 


NOTES, 

for  rent,  rights  as  to,  1106,  1112. 
payment  of  rent  by  note,  1081,  2033. 

NOTICE, 

of  election  to  terminate  tenancy,  81,  86. 

to  terminate  tenancy,  111,  1417. 

prerequisite  to  forfeiture,  1404. 

prerequisite  to  summary  proceeding,  1460,  1745. 

of  dangerous  conditions,  567. 

of  lessee's  option  to  extend,  1529. 

of  lessee's  option  to  renew,  1532. 

of  distress,  2062. 

NOTICE  TO  QUIT. 

to  terminate  tenancy,  1417. 

for  summary  proceeding,  1745,  1760. 

NUISANCE, 

by  tenant's  user  of  premises,  813. 

landlord's  liability,  680. 

tenant's  liability,  789. 

covenant  against,  805. 

on  adjoining  premises  as  eviction,  1279. 

action  by  landlord  or  tenant  for,  2106. 


o. 


OPTION, 

of  purchase  in  tenant.  317,  891,  1674. 

to  terminate  tenancy,  70,  84,  101,  104. 

of  landlord  as  to  tenant  holding  over,  1470, 

ORAL  CONTRACTS, 

In  connection  with  written  lease,  364. 
reducing  rent,  1057. 


2320  INDEX. 

[BKFBEENCBS    AKE    TO    PiGES.] 

ORAL  EVIDENCE, 

see  Parol  Evidence. 

ORAL  LEASES, 

validity  and  effect,  223. 

ORNAMENTAL  FIXTURES, 

rights  as  to,  1577. 


P. 


PARAMOUNT  TITLE, 

eviction  under,  1163,  1295. 
exclusion  of  lessee  under,  545,  1147. 
tenant's  right  to  assert,  426. 
tenant's  right  to  acquire,  461. 

PAROL  CONTRACTS, 

see  Oral  Contracts;  Parol  Evidence. 

PAROL  EVIDENCE, 

to  vary  writing,  361. 
to  identify  description,  267. 
to  aid  construction  of  lease,  360. 
as  to  rent,  1030,  1042,  1061. 
of  reduction  in  rent,  1057. 
as  to  duration  of  tenancy,  68. 
of  warranty  of  condition,  560. 
of  contract  to  repair,  583. 

PAROL  LEASES, 

validity  and  effect;  223. 


INDEX.  2321 


[EEFEKENCES    AKB    TO    PAGES.] 

PART  PERFORMANCE, 

of  contract  for  lease,  386. 
of  invalid  oral  lease,  257. 

PARTIES, 

to  action  for  rent,  1829. 

to  summary  proceeding,  1717. 

PASSAGEWAYS, 

landlord's  obligations  as  to  condition,  628,  632,  664. 

PAVEMENT, 

landlord's  liability  for  defects,  687, 


PAYMENT, 

of  rent,  1080. 

for  tenant's  improvements,  1692. 


PENAL  RENT,  1053. 

PERIODIC  TENANCIES, 

nature,  119. 

creation  by  express  language,  123. 

inference  from  payment  of  rent,  125,  133,  242. 

reservation  of  rent,  129,  133,  245. 
on  entry  under  oral  lease,  128,  241. 

unrecorded  lease,  283. 

contract  for  lease,  380. 
from  noncompliance  with  statute  of  frauds,  128,  241. 
termination,  140. 
notice  to  terminate,  1427. 
lease  by  periodic  tenant,  139,  402. 
landlord's  liability  for  injuries,  699. 
on  holding  over,  1481. 
after  death  of  life  tenant  lessor,  400. 

L..  and  Ten.  146. 


2322  INDEX. 

[BBFBBBNCES    ARE    TO    PAGES.] 

PERMISSIVE  OCCUPATION, 

necessary  to  support  use  and  occupation,  1858. 

PERMISSIVE  POSSESSION, 

as  creating  tenancy  at  will,  104. 

PERMISSIVE  WASTE,  744. 

PERPETUAL  LEASE,  42. 

PERPETUAL  RENEWALS,  1522. 

PERSONAL  INJURIES, 

from  defects  in, 

leased  premises,  559,  562,  592,  603,  649,  789. 

approaches,  628. 

platforms,  631,  639. 

appliances,  641,  671. 

adjoining  premises,  622,  628,  664. 

PETITION, 

in  summary  proceeding,  1784. 

PHYSICAL  CONDITIONS  ON  PREMISES, 

as  defense  to  rent,  1190,  1219,  1237. 

liability  for  injuries,  553. 

as  defense  to  use  and  occupation,  1892. 

PLANTS, 

of  tenant,  1629. 

PLATFORMS, 

defects  in,  631,  639,  670. 


INDEX.  2323 

[BBFQBBNCES    ASE    TO    PAGES.] 


PLEADING, 

in  action  for  rent,  1838. 

in  use  and  occupation,  1885. 

in  summary  proceeding,  1784,  1794. 

payment  of  rent,  1092. 

PLUMBING, 
defects  in, 

liability,  642,  645,  646,  793. 
defense  to  rent,  1226. 

POLLUTION, 
of  well,  562. 

POSSESSION, 

is  in  tenant,  6,  185. 

of  tenant  not  adverse,  15. 

not  in  licensee,  20,  26. 

lessor's  obligation  to  give,  542. 

lessee's  inability  to  obtain,  1147. 

lessee's  failure  to  talte,  1154. 

relinquishment  by  tenant,  1170,  1466. 

stipulation  against  parting  with,  947. 

under  contract  for  lease,  379. 

summary  proceeding  to  recover,  1714. 

in  tliird  person  at  time  of  lease,  421. 

POUND  BREACH,  2059. 

POWER, 

contract  to  furnish,  832,  1023,  1241. 

POWER  TO  DEMISE, 
covenant  of,  540. 

POWERS  OP  LEASING,  205,  214,  403. 

PRECLUSION  TO  DENY  TITLE.  426. 


2324  INDEX. 

[EEFERENCES    AKE    TO    PAGES.] 

PRESUMPTION, 

of  payment  of  rent,  1080. 

as  to  existence  of  tenancy,  1886. 

as  to  promise  to  pay  for  use  and  occupation,  1887. 

PRINCIPAL  AND  AGENT, 
lease  by  agent,  283,  470. 
liability  for  rent,  1135. 
right  to  sue  for,  1829. 
see,  also.  Agent. 

PRIORITIES, 
of  liens,  1896. 

PRIVITY, 

of  contract,  liability  based  on,  879,  881,  962,  968,  1123. 
of  estate,  liability  based  on,  879,  881,  1123. 

PROSTITUTION, 

lease  for  purpose  of,  301. 

PUBLIC  AUTHORITIES, 
acts  of,  as  eviction,  1304. 

PUBLIC  CORPORATION, 
lease  by,  202. 

PUBLIC  LANDS, 

leases  of,  457. 

PURCHASE,  OPTION  OF, 
in  tenant,  1674. 

PURCHASER, 

as  tenant  of  vendor,  306. 

liability  in  use  and  occupation,  1865. 


INDEX.  2325 

[KBFEEENCBS    AKB    TO    PAGES.] 


QUARTERLY  TENANCY, 
see  Periodic  Tenancies. 

QUASI  EASEMENT,  818,  825. 

QUIA  EMPTORES,  2,  42. 

QUIET  ENJOYMENT,  COVENANT  FOR, 
implication,  517. 
duration,  356,  522. 

Independent  of  covenant  for  rent,  343. 
beneficiaries,  538,  887. 
];>ersons  liable,  538. 
breach,  522,  542. 
damages  for  breach,  538,  547. 

QUIETING  TITLE, 

proceeding  by  tenant  against  landlord,  449. 


R. 


RATIFICATION, 

of  lease  made  by  agent,  286. 

REASSIGNMENT, 

effect  on  assignee's  liabilities,  987,  1131. 

REBUILDING, 

of  structure  destroyed,  as  eviction,  1288. 

RECEIVERS, 

liability  under  covenants  of  lease,  984. 
lease  by,  219. 
distress  by,  2044. 


2326  INDEX. 

[BBFEBENCES    AKB    TC    PAGES.] 

RECORD, 

of  lease,  281. 

of  assignment  of  mortgage,  958. 

RECOUPMENT, 

in  action  for  rent,  1842. 

RECOVERY, 

of  money  paid  as  rent,  1097. 

RECURRING  BREACHES, 
of  condition,  1398. 

REDEMISE, 

by  mortgagee,  321. 

REDEMPTION  OF  RENT,  1691. 

REDUCTION  OF  RENT,  1055,  1060. 

RE-ENTRY, 

effect  on  rent,  1174. 

on  tenant's  abandonment,  11. 

proviso  for,  see  Forfeiture. 

REFUSAL, 

right  of,  in  tenant,  1678. 

REGISTRATION   OF  LEASE,  282, 

REIMBURSEMENT, 

of  assignor  by  assignee,  994. 

RELEASE, 

of  covenant,  362,  903. 
of  rent,  1172. 


INDEX.  2327 

[REFERENCES    ABE    TO    PAGES.] 

RELETTING, 

on  tenant's  abandonment,  1171. 
on  forfeiture  of  leasehold,  1176. 

REMAINDERMAN, 

cannot  adopt  life  tenant's  lease,  400. 

REMEDIES, 

against  sureties,  1145. 

REMOVAL, 

of  fixtures,  1560,  1570. 

RENEWAL, 

in  favor  of  assignee,  940. 

effect  on  landlord's  liability  for  Injuries,  698. 

effect  on  right  to  remove  fixtures,  1593. 

as  alternative  to  payment  for  Improvements,  1694,  1696. 

by  implication,  1480. 

at  landlord's  option,  1471. 

by  trustee,  208. 

procured  by  trustee,  1555. 

covenants  for,  1513. 

RENT, 

nature,  1009,  1022,  1996. 

word  used  in  different  senses,  1009. 

not  present  debt,  1010. 

classes  of,  1011. 

service,  1011,  1013. 

on  lease  of  land  and  chattels,  1021. 

medium  of  payment,  1014. 

crop  rent,  1017,  1654. 

mineral  rent,  1018. 

taxes  as,  1024. 

board  and  support  as,  1018. 

payable  in  commodities  or  labor,  1089. 


2328  INDEX. 

[references  abb  to  pages.] 

RENT— Cont'd. 

reservation  of,  1025,  1048,  1114. 

oral  stipulation  for,  1030. 

implied  covenant  for,  1030. 

notes  for  rent,  1112. 

amount,   1046,   1068. 

certainty,  1046,  1997. 

fluctuating,  1047,  2000. 

increase  of,  1059. 

reduction  of,  1055. 

penal,  1053. 

ascertainment  by  appraisement,  1544. 

time  for  payment,  1035. 

payable  in  advance,  1040. 

apportionment  as  to  amount,  1063,  2001. 

apportionment  as  to  time,  1071,  1891. 

defenses  to  claim,  1147. 

effect  of, 

fraud,  293. 

mistake,  300. 

illegality  of  lease,  301. 

invalidity  of  lease,  254. 

defective  conditions,  649. 

destruction  of  building,  222. 

breach  of  contract  to  repair,  588,  604. 

merger,  98. 

defects  of  title,  439. 
extinguishment,  1147. 
tender,  1093,  2029. 
payment, 

effect,  1080. 

by   repairs,   1090. 

before  due,  1083. 

by  note  or  bond,  2033. 

as  defense  to  summary  proceeding,  1769. 

pleading,  1092. 

as  evidencing  tenancy,  168. 

as  creating  periodic  tenancy,  125,  133,  242. 


INDEX.  2329 

[KBFBKENCES    AEE    TO    PAGBS.] 


RENT— Cont'd. 

to  wrong  person,  1086,  1097. 
discharge  by  gift  to  tenant,  1091. 
partial  discharge,  1067. 
application  of  payments  on,  1092. 
recovery  of  payments,  1097,  1159. 
extinguisliment  by  nonpayment,  1173. 
persons  entitled,  1100. 
right  of  mortgagee,  413. 
right  of  paramount  claimant,  1120. 
assignment,  1100,  1107,  1112. 
severance  from  reversion,  1105. 
landlord's  rights  as  against  execution,  1245. 
interest  on,  1061. 
liens  for,  1896. 
deposits  to  secure,  1978. 
persons  liable,  1122. 
liability  of, 

infant  assignee,  199. 
married  woman,  194. 
lessee's  estate,  353. 
mortgagor's  lessee,  413. 
sureties,  1135. 
action  for,  1818. 
distress  for,  1983,  2002. 
attachment  for,  2090. 
re-entry  for  nonpayment,  1359,  1371. 
summary  proceeding  for  nonpayment,  1755. 
demand, 

as  prerequisite  to  distress,  2045. 
as  prerequisite  to  forfeiture,  1377. 
in  summary  proceeding,  1757. 
recovery  in  summary  proceeding,  1802. 

REPAIRS, 

landlord's  obligations,  553,  574,  622. 
tenant's   obligations,  744. 


2330  INDEX. 

[bbfebbncbs  abb  to  pages.] 

REPAIRS— Cont'd. 

contract  for,  700,  1237. 

rights  of  sublessor,  1002. 

nonrepair  as  defense  to  rent,  1232,  1237. 

as  ground  of  forfeiture,  1374. 
required  by  municipality,  619. 
on  adjoining  premises,  576. 
on  roof,   624. 

entry  by  landlord  to  make.  10,  14. 
unauthorized  making  by  landlord,  1287. 
injuries  from  making,  607,  660. 
under  invalid  contract  for  lease,  390. 

REPLEVIN, 

for  goods  distrained,  2072. 

REPUDIATION, 
of  tenancy,  16. 

RESCISSION  OP  LEASE, 
for  fraud,  293. 
for  defective  condition,  557. 
for  mistake,  300. 
by  act  of  parties,  1308. 

RESCUE, 

of  goods  distrained,  2072. 

RESERVATION, 
in  lease,  272. 
of  easement,  821. 
of  rent,  1014,  1025,  1030,  1048. 

RESTRAINTS  ON  ALIENATION,  918. 

RESTRICTIVE  COVENANTS,  822. 


INDEX.  2331 

[BUrUBBNCBS    Aliffl    TO    FAGBS.] 


REVERSION, 
transfer,  864. 

ROOF, 

when  within  lease,  272. 

repair  of,  624. 

utilization  for  advertising,  837. 

ROOMS, 

leases  of,  222,  271. 

RULE  AGAINST  PERPETUITIES, 

applicability  to, 

option  of  purchase,  1674. 
covenant  for  renewal,  1521. 

RULE  IN  DUMPOR'S  CASE,  944. 


s. 


SALE, 

resulting  relation  of  tenancy,  306. 
termination  of  tenancy  by,  77,  116. 
under  distress,  2061,  2064. 

execution,  328,  929. 

lien,  876. 

foreclosure,  329. 

SEAL, 

necessity, 

on  lease,  276,  347. 

on  assignment,  956. 

on  transfer  of  reversion,  870. 


2332  INDEX. 

[ebpekences  aub  to  pages.] 

SECURITY, 

for  rent  or  advances,  1896. 
agreement  to  give,  1982. 

SEIZURE, 

under  distress,  2056. 

SERVANT, 

distinguished  from  tenant,  36,  331. 
as  master's  tenant,  331. 

SERVICE, 

of  notice  to  quit,  1456,  1750,  1765. 

SERVITUDE, 
nature  of,  23. 

SET-OFF, 

in  action  for  rent,  1842. 
as  against  distress,  2037. 

SEVERANCE, 

of  rent  from  reversion,  1105. 

SEWER  GAS, 

as  defense  to  rent,  1226. 

SHARES, 

cultivation  on,  1648. 

SHERIFF. 

levying  execution,  duty  as  to  rent,  1245. 

SHOW  CASE, 

tenant's  rights  as  to,  836. 


INDEX.  233i 

[KBFEEENCES    AEE    TO    PAGES.] 


SIDEWALK, 

landlord's  liability  for  defects,  687. 

SIGNING, 

of  lease,  274. 

SIGNS, 

right  to  erect  and  maintain,  28,  798,  819,  836, 

repair  of,  622. 

entry  by  landlord  to  place,  10. 

SNOW, 

on  approaches,  632. 

SOIL, 

removal  as  waste,  709. 

SPECIAL  LIMITATION,  45,  68,  117,  236. 

SPECIFIC  PERFORMANCE, 
of  covenant  to  renew,  1553. 
of  contract  for  lease,  393. 

SPENCER'S  CASE,  886,  892. 

STATUTE  OF  FRAUDS, 
applicability  to, 

contract  for  lease,  383. 
lease,  223. 

assignment,  952,  973. 
surrender,  1314,  1321. 
covenant,  349,  370. 

STRANGERS, 

injuries  to,  667,  674. 


2334  INDEX. 

[BBrHRBNCES    ABB    TO    FAQBS.] 

STREET, 

liability  for  defects  in,  687. 

SUBLEASE, 

distinguished  from  assignment,  907. 
right  to  make,  918,  921. 
stipulation  against,  918,  1374. 
see,  also.  Subtenant. 

SUBLESSEE, 

see  Subtenant. 

SUBLESSOR, 

rights  of,  1002. 

SUBTENANT, 

rights,  1003. 

liabilities,  999,  1133. 

personal  injuries  to,  654. 

payment  of  head  rent  by,  1003,  1133. 

personal  injuries  to,  654. 

mode  of  using  premises,  810. 

SUFFERANCE,  TENANCY  AT, 

general  nature,  141,  1466. 

grantor  retaining  possession,  319. 

servant  retaining  possession,  336. 

mortgagor  retaining  possession,  321. 

lease  by  tenant,  403. 

notice  to  terminate,  1432. 

action  for  use  and  occupation,  1870,  1872. 

SUITABILITY, 

of  premises,  557. 


INDEX.  233f 


[HEFERENCES    AHB    TO    PAGES.] 

SUMMARY  PROCEEDINGS, 

when  and  how  available,  1714. 
by  vendor  against  vendee,  309. 
effect  on  liability  under  covenant,  782. 
defects  in  title  as  defense,  439. 

SUNDAY, 

lease  made  on,  288. 

SUPPLIES, 

lien  for,  1896. 

SUPPORT, 

furnishing  of,  as  rent,  1018. 

SURETIES, 

for  rent,  1135,  1837. 

SURPRISE, 

ground  for  relief  from  forfeiture,  1410. 

SURRENDER, 
nature,  1306. 
parties,  1310. 
in  express  terms,  1312. 
by  operation  of  law,  1322. 
effect, 

as  between  the  parties,  1347. 

as  regards  third  persons,  1348. 

as  defense  to  rent,  98,  1167,  1169. 

on  removal  of  fixtures,  1389. 

on  right  to  crops,  1630. 

on  right  of  distress,  1996. 

SUSPENSION, 
of  rent,  1147. 


2336  INDEX. 

[hbferbncbs  akb  to  paobs.] 

T. 

TAX  SALE, 

right  of  tenant  to  purchase  at,  462. 

TAXES, 

usually  payable  by  landlord,  838. 
contract  for  payment,  843. 
payment  by  tenant,  1087. 
re-entry  for  nonpayment,  1373. 
as  rent,  1024. 

TENANCY  AT  WILL, 
see  Will,  Tenancy  at. 

TENANCY  FOR  LIFE, 
see  Life  Tenancy. 

TENANCY  FOR  YEARS,  45. 

see,  also.  Years,  Tenancy  for. 

TENANCY  FROM  MONTH  TO  MONTH,  119,  122,  133,  135,  248. 
see,  also,  Periodic  Tenancies. 

TENANCY  FROM  WEEK  TO  WEEK, 
see  Periodic  Tenancies. 

TENANCY  FROM  YEAR  TO  YEAR, 

see  Periodic  Tenancies;  Year  to  Year, 

TENANCY  IN  FEE  SIMPLE, 
see  Fee  Simple,  Tenancy  in. 


INDEX.  2337 

[references  are  to  pages.] 


TENANT, 

meaning  of  term,  4. 

Is  person  in  possession,  5. 

distinguished  from  lessee,  6. 

licensee,  20,  23. 

lodger,  34. 

servant,  36. 

cropper,  38. 
has  the  possession,  6,  185. 
action  by,  against  third  person,  2097. 

TENANT  HOLDING  OVER,  1466,  1496.  1470. 

TENANTS  IN  COMMON, 
leases  by,  405. 
action  for  rent  by,   1831. 
distress  by,  2043. 

use  and  occupation  between,  1879. 
of  crops,  1650. 

TENDER, 

of  rent,  1093,  1372,  2029. 

TENURE, 
nature,  1. 
perfect  and   imperfect,   2. 

TERM  OP  YEARS, 

see  Years,  Tenancy  for. 

TERMINATION, 

of  tenancy  for  years,  55,  63. 

periodic  tenancy,  139. 

tenancy  at  will.  111. 
by  eviction,  1290,  1299. 

surrender,  1347. 

forfeiture,  1406. 

summary  proceeding,  1811. 


2338  INDEX. 

[B£FEB£NC£:S    A£E    10    FAG&S.] 

TIMBER, 

rights  after  severance,  737. 
tenant's  right  to  cut,  711. 

TIME, 

at  which  rent  due,  1035. 
apportionment  of  rent  as  to,  1074. 

TITLE, 

defects  as  defense  to  rent,  426,  439. 

in  summary  proceedings,  1778. 
preclusion  to  deny,  426. 

TITLE  PARAMOUNT, 

preclusion  to  assert,  426. 

eviction  under,   1290. 

claimant  under  not  entitled  to  rent,  1120. 

purchase  by  tenant,  426. 

TRADE, 

covenants  as  to  use  for,  801. 

TRADE  FIXTURES,  1570. 

TRANSFER  OF  LEASEHOLD, 
see  Assignment  of  Leasehold. 

TRANSFER  OF  RENT,  868,  1107,  1111. 

TRANSFER  OF  REVERSION, 

mode  and  effect,  864. 

without  rent,   1105,  1111. 

in  part,  apportionment  of  rent,  1063,  1101. 

subject  to  lease,  867. 

effect. 


INDEX,  2339 


[ehfeuencbs  aeb  to  pages.] 

TRANSFER  OP  REVERSION— Cont'd, 
on  right  of  distress,  1992. 
option  of  purchase,  1688. 
covenant  to  pay  for  improvements,  1701. 
right  to  remove  fixtures,  1614. 
use  and  occupation  by  transferee,  1878. 

TRANSFEREE   OF  REVERSION, 
right  to  rent,  1083,  1100. 
action  for  rent,  1830. 
beneficiary  of  covenant, 

as  to  use  of  premises,  809. 

as  to  payment  of  taxes,  855. 

as  to  repairs,  772. 

as  to  improvements,  775. 
enforcement  of  forfeiture  by,  183. 
liability  for  injurious  conditions,  697. 
TREES, 

tenant's  right  to   cut,  711. 
rights  after  severance,  737. 

TRESPASS, 

by  landlord  on  tenant,  7,  11,  608. 
ab  initio,  2083. 

TRESPASS,  ACTION  OF, 

by  tenant  at  sufferance,  156. 

against  tenant  at  sufferance,  145. 

not  maintainable  by  landlord,  7,  2115. 

TRESPASSER, 

distinguished  from  tenant,  19. 

TROVER, 

by  landlord   against  tenant,  448. 
for  share  of  crop,   1664. 


2340  INDEX. 

[EBFBEBNCES   ABB    TO   PAGBS.] 

TRUSTEE, 

lease  by,  205,  1122, 

as  landlord  of  cestui  que  trust,  305. 

renewal  by,  208, 

renewal  procured  by,  1555. 

TURPENTINE, 

tenant's  right  to  remove,  1634. 


u. 

ULTRA  VIRES, 

lease  by  corporation,  202. 

UNDERLEASE, 
see  Sublease. 

UNDERLESSEE, 
see  Subtenant. 

UNTENANTABLE  CONDITION, 
as  defense  to  rent,  1219. 

USE  AND  OCCUPATION, 

nature  and  history  of  action,  1853. 
■when  lease  invalid,  193,  254. 
defects  in  lessor's  title,  433,  445. 
liability  of  tenant  holding  over,  1491. 
recovery  on  partial  eviction,  1161,  1164. 

USER  OF  PREMISES, 
mode  of,  719,  797, 
improper  user  as  waste,  719. 
resulting  injury,   674, 
forfeiture  for  prohibited  user,  1376. 
summary  proceeding  on  illegal  user,  1753. 


INDEX  2341 


[BEFEEBNCBS    ABB    TO    PAGES.] 

I^UAL  COVENANTS,  395. 

UTILIZATION, 

of  premises,  mode,  797. 

see,  also,  User  of  Premises. 


VALUE, 

of  use  and  occupation,  1889. 

VENDOR  AND  VENDEE, 
tenancy  between,  306. 


w. 

WAIVER, 

of  contract  to  improve  or  repair,  603. 
provision  against  alienation,  932,  944. 
right  .:  forfeiture,  944,  1387. 
requirement  of  notice  to  quit,  1435. 
defects  in  notice  to  quit,  1454. 
notice  given,  1462. 
right   to  distrain,  2031,   2032. 
lien,  1917,  1940. 

WALLS, 

included  in  lease  of  room,  271. 

WAR, 

as  defense  to  rent,  1244. 
effect  on  tenancy,  100. 


2342  INDEX. 

[REFERENCES    ARE    TO    PAGES.] 

WARRANT, 

for  distress,  2049. 

of  dispossession,  1807. 

WARRANTY, 

as  to  condition  of  premises,  559. 

WASTE, 

what  constitutes,  705. 
equitable  waste,  721. 
remedies  for,  723. 
injunction  against,  718,  729. 
right  to  proceeds,  737. 

WATER, 

escape  on  adjoining  premises,  645,  696. 

WATER  RATES, 

liability  of  tenant,  857. 

WATER  RIGHTS, 
of  lessee,  828. 
interference  by  tenant,  828. 

WAY  OF  NECESSITY,  820,  825. 

WAYGOING  CROPS,  1637. 

WEEK  TO  WEEK,  TENANCY  FROM, 
see  Periodic  Tenancies. 

WILL,  TENANCY  AT, 

lease  at  will  of  lessor,  104. 

lessee,  101. 
relation  to  yearly  tenancy,  120. 
on  entry  under  invalid  conveyance,  106. 


INDEX. 

[references  are  to  pages.] 

WILL,  TENANCY  AT— Cont'd. 

invalid  lease,  106,  241,  248. 

lease  not  naming  duration,  107. 

contract  for  lease,  380. 
on  sale  of  land,  306,  312. 
tacit  acquiescence  as  creating,  110. 
statutory  presumption  of.   111. 
mortgagor  as  tenant,  322. 
termination  by  landlord's  acts.  111,  115. 

tenant's  acts,  114,  117. 

death,   115. 

conveyance,  115. 

notice,  1421. 
waste  by  tenant,  724,  743. 
assignment  by,  151. 
lease  by,  402, 

WITNESSES,  ' 

to  lease,  278. 

WORDS  OF  DEMISE,  264. 

WRIT  OF  ATTACHMENT,  2095. 

WRITING, 

necessity  for  lease,  223. 
assignment,  953. 

Y. 

YEAR  TO  YEAR,  TENANCY  FROM, 
nature,  119,  122. 
statutory  presumption,  132,  248.. 
notice  to  terminate,  1421. 

see,  also.  Periodic  Tenancies. 

YEARS,  TENANCY  FOR, 
what  constitutes,  45,  58. 
commencement,  48. 
duration,  55. 
termination,  55,  70,  87. 


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